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 29th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) (np) 21 Kim Twohig ) Government of Ontario 22 Walter Myrka ) (np) 23 Susan Freeborn ) (np) 24 Michelle Pong ) (np) 25 Lynette D'Souza )
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 T. Strosberg, Q.C.) 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 ) 20 21 Mark Sandler ) Ontario Provincial 22 Andrea Tuck-Jackson ) (np) Ontario Provincial Police 23 Leslie Kaufman ) (np) 24 25
41 APPEARANCES (cont'd) 2 Ian Roland ) Ontario Provincial 3 Karen Jones ) (np) Police Association & 4 Debra Newell ) (np) K. Deane 5 Ian McGilp ) (np) 6 Annie Leeks ) (np) 7 Jennifer Gleitman ) (np) 8 Robyn Trask ) 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 ) Office of the Chief 18 Robert Ash, Q.C. ) (np) Coroner 19 20 William Horton ) (np) Chiefs of Ontario 21 Matthew Horner ) 22 Kathleen Lickers ) (np) 23 24 25
51 APPEARANCES (cont'd) 2 Mark Fredrick ) (np) Christopher Hodgson 3 Craig Mills ) (np) 4 Megan Mackey ) 5 Erin Tully ) (np) 6 Peter Lauwers ) 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 Continued Cross-Examination by Mr. Julian Falconer 8 7 Cross-Examination by Mr. Peter Rosenthal 124 8 Cross-Examination by Mr. Harvey Strosberg 192 9 Re-Direct Examination by Mr. Donald Worme 202 10 11 ELAINE MELLER TODRES, Sworn on the Torah 12 Examination-in-Chief by Mr. Donald Worme 211 13 14 15 Certificate of Transcript 328 16 17 18 19 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-978 October 29 1994, Peterborough Examiner 4 article, P.C. Leader Slams 'Do Nothing' 5 Natives. 59 6 P-979 May 1995, Ontario Out of Doors article, 7 Tory Leader Mike Harris Speaks Out on 8 Game and Guns. 60 9 P-980 R.V. Nikal, Factum of the Attorney 10 General for Ontario, March 28th 1995. 82 11 P-981 R.V. Nikal Supreme Court of Canada 12 Docket, File 23804. 82 13 P-982 R.V. Nikal, April 25/96. Supreme 14 Court Report. 82 15 P-983 Mr. Charles Harnick Examination-for 16 -Discovery, pages 38 to 41, 17 Sept. 24, 2001. 142 18 P-984 Organizational chart of the Ministry 19 of the Solicitor General drawn by 20 the Witness Dr. Elaine Todres, Nov. 21 29 2005. 233 22 23 24 25
81 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 7 (BRIEF PAUSE) 8 9 MR. JULIAN FALCONER: Good morning, Mr. 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Good 12 morning. 13 14 CHARLES HARNICK, Resumed 15 16 CONTINUED CROSS-EXAMINATION BY JULIAN FALCONER: 17 Q: Good morning, Mr. Harnick. 18 A: Good morning. 19 20 (BRIEF PAUSE) 21 22 Q: Mr. Harnick, you should have Exhibit 23 P-973 which is a book of Hansard debates before you. Do 24 you have that? 25 A: What tab are you referring to?
91 Q: No, it's a whole binder. 2 A: I -- I don't. 3 Q: All right. 4 A: Thank you. 5 6 (BRIEF PAUSE) 7 8 Q: I'm simply reading from the 9 transcript of yesterday, November 28th, 2005, Mr. 10 Harnick when you said at page 161, in answer to Mr. 11 Scullion's question, you said about how come this didn't 12 come before today, you answered, quote: 13 "Because no one had ever asked me the 14 question before." 15 And certainly -- and again my lawyer may 16 jump up and throw something at me, but it's certainly 17 something I apprised him of many years ago. 18 And I'm focussed of course on the 19 reference to, "no one had ever asked me the question 20 before." 21 Could you please focus your attention if 22 you would, to the tab marked Number 3 in the binder. And 23 the date of the Hansard extract is May 29th, 1996. 24 And for ease of reference, Mr. Harnick, 25 what I propose to do is simply to provide you with
101 context. You've been given notice about this document, 2 but to provide you with some context in terms of taking 3 you quickly through the document so you -- so you see 4 who's asking questions and what about. 5 But, you should know, sir, that the -- 6 this exhibit has -- has been explained on the record 7 before, is a product of actually combining all Ipperwash 8 references. So, instead of a Hansard that has Ipperwash 9 than something else then Ipperwash again, it's all 10 Ipperwash in case when you're looking at it you're 11 wondering, sir. 12 So, Mr. Harnick, if you look at page 4 of 13 the May 29th, 1996 debates. If you flip to the fourth 14 page in, it's the third paragraph, under Mr. Wildman; do 15 you see that? 16 It says, "Honorary Mr. Harris" on the top 17 and then it's "Mr. Wildman" below. And Mr. Wildman 18 starts, "the information in the press this morning". 19 A: Second paragraph, not the third. 20 Q: My apologies. 21 A: All right. 22 Q: Mr. Wildman, a member for Algoma 23 asked the following. 24 "The information in the press this 25 morning indicates that the
111 Parliamentary Assistant to the Native 2 Affairs Minister was present at the 3 meeting which is quite unusual." 4 Your press secretary is quoted as saying, 5 quote: 6 "The Premier was never directly 7 involved in a formal meetings on 8 Ipperwash." End quotes. 9 "There have been all sorts of rumours 10 about statements made regarding get the 11 'expletives' Indians out of the Park." 12 End quote. 13 "Why will you not clarify your role in 14 this affair and clear the air? Were 15 you involved in any informal meetings 16 where any informal opinions or 17 directions were expressed about how 18 this matter might be dealt with in 19 order to ensure that the Ipperwash 20 Provincial Park occupation did not 21 continue?" 22 And then the Premier answers: 23 "Was I involved in informal meetings? 24 I don't know what an informal meeting 25 is. When I go to bed at night is that
121 an informal meeting? When I sit and 2 talk with people, is this an informal 3 meeting? I clearly understand the role 4 of the separation between politicians 5 and police and at no time did I give 6 direction to staff to give direction or 7 did any of my staff give direction to 8 the best of my knowledge [et cetera]." 9 And then you will note just to refresh 10 your memory, sir, in terms of your presence, if you flip 11 the page to the next page you'll see that questions are 12 then referred to your attention, Mr. Harnick, Attorney 13 General; do you see that? 14 A: Yes. 15 Q: All right. Based on our research, 16 sir, this is the first time the issue of the expression 17 'Get the fucking Indians out of the Park' comes up in the 18 Hansards and you'll see that at page 4. 19 Is it fair to say that while the expletive 20 is used here to substitute for the word 'fucking' that in 21 fact and excuse me, Mr. Commissioner, I apologize for 22 having to use this language, that that's the expression 23 we're talking about; that's fair isn't it, sir? 24 A: Well I, you know, I -- I don't take 25 issue with that being the expletive that I -- I suspect
131 people were thinking about, but I don't know what they 2 were thinking about. 3 Q: Now, with reference to -- to your 4 presence, in fact the issue was raised again on the next 5 page, page 6. 6 A: Sorry what -- 7 Q: Next page. So, you were -- I took 8 you to where it said Honorary Charles Harnick -- 9 Honourable Charles Harnick. 10 A: Yes. 11 Q: And if you flip the next page -- 12 A: Yes. 13 Q: -- you'll see that the person being 14 quoted at this stage, you can see from the previous page 15 is Mrs. Boyd. And you see the top three (3) lines, in 16 particular the second line down: 17 "It's widely rumoured that the language 18 used and attributed mostly to the 19 Premier but may well have been 20 attributed to others was 'Get the 21 [blank] Indians out of the Park.' Is 22 that the Ministerial direction you 23 gave?" 24 And then you answer: 25 "I think the characterization in the
141 stretch the member tries to make are 2 ludicrous, the member knows full well 3 what my involvement is. I don't have 4 any involvement with the Ontario 5 Provincial Police." 6 And then you go onto address the issue of 7 political interference and I -- and I invite you to read 8 the paragraph. I won't read it out onto the record, but 9 you really don't deal with the expletive at that point. 10 A: Yes. 11 Q: All right. Further down on the same 12 page, it refers the second to last paragraph to Mr. 13 Wildman. Do you see that? 14 A: Yes. 15 Q: The last six (6) lines I'm going to 16 read to you what Mr. Wildman said, again member for 17 Algoma. 18 "Why would the OPP change its approach? 19 Chief Superintendent Coles is quoted in 20 the press on March 31 saying, quote, 'A 21 decision was made to confront the 22 people.' Close quote. 23 Subsequent to this, Chief Bressette has 24 said that he was warned the day before 25 the incident and told that the
151 direction, 'Get the [blank] Indians out 2 of the Park', close quotes, had been 3 given. And he went on Radio to warn 4 the public and the occupiers. 5 If you did not give the direction and 6 if members of your government did not 7 give the direction to your knowledge 8 who did?" 9 And then Mr. Harris answers. Now, if you 10 flip to the next page. 11 A: Yes? 12 Q: You will see a second paragraph 13 under, "Mr. Wildman": 14 "Is the Premier prepared to request the 15 Minister responsible to investigate who 16 may have said what?" 17 Do you see that? 18 A: Yes. 19 Q: "Chief Bressette says -- was said 20 'Get the [blank] Indians out of the 21 Park'. Who did it? Who said it? Who 22 gave the direction and report back to 23 the House as soon as possible as to 24 whether or not that decision was made 25 at a political level in the bureaucracy
161 or whether it happened at all." 2 And Mr. Harris indicates: 3 "I don't know whether it ever happened 4 at all. I don't mind inquiring to find 5 out if anybody knows if it happened." 6 All right? And then he refers to the SIU 7 investigation. 8 Now, I took you to some detail to give you 9 the context to start. Now, that's May 29th, 1996. It's 10 fair to say, and does it refresh your memory, indeed, 11 that members of the Opposition raised the question of 12 whether the remark, "Get the fucking Indians out of the 13 Park," was made and asked for inquiries to be made by Mr. 14 Harris; is that fair? 15 A: No, I -- I read the question 16 differently. They said -- and -- and each one of these I 17 believe indicated whether a decision was made -- 18 Q: All right. 19 A: -- to get the Indians, expletive, out 20 of the Park. 21 And that wasn't the decision that was 22 made. The decision that was made was clearly to seek an 23 injunction. 24 Q: Okay. 25 A: Okay.
171 Q: Thank you, sir. If you could turn to 2 Tab 4 of the binder please, May 30th, 1996, the next day? 3 A: Yes? 4 Q: This time the person speaking is Ms. 5 Lankin and it's on the fifth page, if you go five (5) 6 pages in, please. And it's the May 30th, 1996, Hansard, 7 the next day. 8 A: Yes. 9 Q: You'll see Ms. Lankin, second to last 10 paragraph at the bottom, she's the member for Beaches- 11 Woodbine. 12 And you'll see you're referred to at the 13 bottom of the page, "Honourable Mr. Harnick"? 14 A: Yes. 15 Q: All right. I'm going to go six (6) 16 lines up where it starts, "Chief Bressette". You see, 17 "Chief Bressette received a phone call?" 18 A: Yes. 19 Q: "Chief Bressette received a phone 20 call after that meeting. 21 Confidentially he was informed that in 22 the course of discussions with 23 government officials either at that 24 meeting or at a subsequent meeting 25 involving Ministers someone gave the
181 direction to quote, 'Get those [blank] 2 Indians out of the Park'. 3 Yesterday my leader asked your Premier 4 to investigate that. I want to know 5 what steps you've taken. I want to know 6 who you've spoken to. I want to know 7 if you've asked every member of this 8 Committee. I want to know if you've 9 ascertained whether any other meetings 10 subsequent to the Blockade Committee 11 happened on the 5th or the 6th prior to 12 the shooting and whether anyone reports 13 that those words were spoken and who 14 spoke those words." 15 You'd agree with me that that question 16 you're being posed, whether anyone reports that those 17 words were spoken and who spoke those words speaks to 18 the, 'Get the fucking Indians out of the Park'? You'd 19 agree with that? 20 A: Yes. Yes. 21 Q: And then you answer: 22 "The Member knows that this meeting 23 took place and that the meeting took 24 place the day after the occupation 25 occurred."
191 And you go on to speak to the injunction 2 issue and OPP tactics. But please take your time and 3 read that paragraph and satisfy yourself you don't 4 actually speak to the issue of the -- the remarks. 5 A: I did not. 6 Q: Okay. Now, if you please then direct 7 your attention to the next tab which is June 4th, 1996, 8 which is Tab 5? 9 A: Yes. 10 Q: Now, this is a debate of June 4th, 11 1996. And in this case this -- you'll see it under "Mr. 12 Wildman". This is simply a page and a half exchange, but 13 the issues that I want to talk about are on the first 14 page. 15 Do you see the first page where it says, 16 "Member statements Ipperwash Provincial Park"? 17 A: Yes. 18 Q: All right. It quotes Bud Wildman, 19 second paragraph, I'm on: 20 "In returning to the issue of what 21 happened on the Government side or did 22 not happen on the Government side, we 23 know that the Blockade Committee met on 24 September 5th and according to the 25 Minister's own briefing note there was
201 a suggestion that Ministerial direction 2 should be sought in connection with the 3 occupation of Ipperwash Provin -- Park. 4 The Cabinet met on September 6th, the 5 Blockade Committee also met again on 6 September 6th. 7 Could you tell us, in this House, if 8 there were any discussions among 9 politicians about getting the 10 Aboriginal protesters out of the Park 11 in briefings or in informal discussions 12 after the occupation and before the 13 shooting of Dudley George?" 14 Then you answer about the civil injunction 15 and legal options and then Mr. Wildman again, third 16 paragraph. 17 "It appears that the Attorney General 18 has talked about the Blockade Committee 19 discussions but he has not dealt with 20 the question around the possibility of 21 discussions among politicians or in 22 Cabinet. This after all was what the 23 Member for Lambton referred to as the 24 largest police operation he'd ever seen 25 in his constituency.
211 He was apparently at the police command 2 post the day of the incident, prior to 3 the incident. Last week I asked the 4 Premier to request the Minister 5 Responsible for Native Affairs to 6 investigate to find out who if anyone, 7 said "Get the fucking Indians out of 8 the Park"." 9 Now it goes to the next paragraph -- I'll 10 just take you quickly to the next paragraph, "Will the 11 Minister"; you see that? 12 A: Yes. 13 Q: "Will the Minister report to the 14 House on what he has done to 15 investigate who made this offensive 16 remark, if it was made and when it was 17 made? Whom have you asked? Whom have 18 you checked with? What have you come 19 up with? Why don't you report back?" 20 Could you please read out the next 21 sentence, sir, your answer? 22 A: "I can tell you I have no information 23 as to the fact that remark was ever 24 made." 25 Q: Could you read the next sentence
221 please? 2 A: "I have no knowledge that remark was 3 every made." 4 Q: You'd agree with me that when you 5 were asked in the House to conduct an investigation, you 6 understood that the investigation was in the context of 7 what Ms. Lankin was asking for; whether the words were 8 uttered. You knew that? 9 A: Yes. 10 Q: And in the House, your answer was 11 that you conducted an investigation and your 12 investigation revealed nothing, correct? 13 A: I -- I don't know that I said I 14 performed an investigation, but my answer is what my 15 answer is. 16 Q: Fair enough. Could you turn to the 17 June 5th, 1996 Tab 6, the very next day, Hansard? 18 A: Yes 19 Q: Member's statements on June 5th, 20 1996, Howard Hampton for Rainey River. And this is, I'm 21 simply going to be on this front page with you, sir. 22 "My question is for the Minister 23 Responsible for Native Affairs and the 24 Attorney General." 25 Do you see that?
231 A: Yes. 2 Q: "Last week our Leader asked the 3 Premier to request you, the Minister 4 Responsible for Native Affairs to 5 investigate who reportedly said, "Get 6 the fucking Indians out of the Park". 7 The Premier said, I don't mind 8 enquiring to find out if anybody knows 9 about this. Yesterday our Leader asked 10 you again, what actions you would take 11 and to investigate whether and when 12 this offensive comment had been made. 13 You have not answered the question so I 14 ask you again, what actions have you 15 taken to investigate who made this 16 comment? What investigation process 17 have you started? What have you come 18 up with? What do you have to report 19 back to this House? 20 Could you please read out your answer, 21 sir? 22 A: "I have spoken to those who I 23 understand attended some of the 24 meetings that have been referred to and 25 I have found -- I have not found anyone
241 who knows anything about that comment 2 or whether it was made or who made it." 3 Q: You'd agree with me that you advised 4 the Member for Rainey River that you spoke to and made 5 inquiries, correct? 6 A: Yes. 7 Q: Now, if you could skip down to the 8 next paragraph where you speak, you also state as follows 9 and this is Mr. Harnick, quote: 10 "I've spoken to members of my staff, 11 colleagues, and people who have 12 attended the meetings that my friends 13 across the way have referred to. Quite 14 simply, I will say again, there has 15 been no government involvement in 16 directing the OPP." 17 Then Mr. Hampton asks you another question 18 and you answered: 19 "My investigations have not indicated, 20 number 1, that this comment was made 21 and of course following from that who 22 made it." 23 Q: Now, could you just, for your own 24 information, again turn to June 6th, 1996 which is Tab 7. 25 On June 6th, 1996 at Tab 7, as a result of a notice of
251 dissatisfaction and I am told by Ms. Hutton that that 2 involves essentially five (5) minutes to -- to a 3 questioner and a response time to the other side, 4 correct? 5 A: Yes. 6 Q: And in that five (5) minutes, Mr. 7 Howard Hampton, at the second page of that extract, of 8 June 6th, 1996, Mr. Hampton dedicates his entire 9 questions for four (4) paragraphs into -- you see the 10 first paragraph under, "Hampton Rainy River"? 11 "The subject of this late show is 12 essentially this. The Government in 13 the form of the Premier a few days ago 14 indicated that he thought it would be a 15 good idea if the Minister Responsible 16 for Native Affairs looked into the 17 allegation that certain very derogatory 18 comments were made about Native people 19 in connection with the situation at 20 Ipperwash Park." 21 And then he goes on to quote your 22 investigation and ask you the results and you answer at 23 the bottom, sir, do you the second last paragraph, 24 "Honourable Charles Harnick"? Quote: 25 "I have made inquiries as the member
261 has asked me to do. His inquiries were 2 specifically related to finding out who 3 made a particular comment. I have made 4 those inquiries. I have found no one 5 who knows anything about that 6 particular comment; that's all I have 7 to say." 8 If you flip, sir, finally to December 3rd, 9 1996, you will see that you are not referred to, it's Mr. 10 Harris that's referred to, but on December 3rd, 1996, 11 again at the third page -- 12 COMMISSIONER SIDNEY LINDEN: Which tab is 13 this? 14 THE WITNESS: What tab are you? 15 MR. JULIAN FALCONER: I apologize, that's 16 Tab 24. At Tab 24 the third page? 17 THE WITNESS: Tab -- sorry. 18 COMMISSIONER SIDNEY LINDEN: My Tab 24 19 only has one (1) page. 20 MR. JULIAN FALCONER: December -- if you 21 go and look in the top left-hand corner, Mr. Commissioner 22 of -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: -- the front page 25 of the tab you'll see it should say December 3rd '96. It
271 sounds like it doesn't so if you could flip one (1) 2 forward perhaps. I don't know if that will help. I've 3 got an index that suggests that it's at 24. 4 5 (BRIEF PAUSE) 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: What I was going to put to you, sir, 9 was not so much your answer on December 3rd, 1996 -- 10 A: I -- I'm sorry. I'm looking at Tab 11 24... 12 COMMISSIONER SIDNEY LINDEN: So am I. 13 MR. JULIAN FALCONER: No, I know, I'm -- 14 I'm about to explain to you, sir, that I'm not going -- I 15 don't need to take you to it -- 16 THE WITNESS: Is that the one with Mr. 17 Len Wood? 18 MR. JULIAN FALCONER: Yeah, It starts 19 that way, but -- 20 THE WITNESS: Oh. 21 MR. JULIAN FALCONER: -- then an 22 accompanying passage... 23 THE WITNESS: All right. 24 MR. JULIAN FALCONER: I think I made the 25 exact same mistake with Ms. Hutton. In fact the passage
281 is December 4th, 1996, and it's Tab 25. It just shows 2 you that some things are consistent, Mr. Commissioner. 3 COMMISSIONER SIDNEY LINDEN: December 4th 4 Tab 25? 5 MR. JULIAN FALCONER: Yes, my apologies. 6 The second page in. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: December 4th, 1996, you should have. 10 Do you have that? 11 A: Yes. 12 Q: The second page in, the last two (2) 13 paragraphs of exchanges, Mr. Hampton puts again: 14 "Premier, do you categorically deny 15 [and this is the second paragraph what 16 Mr. Hampton says] that someone at the 17 Committee meeting said, 'Get the 18 fucking Indians at the Park -- out of 19 the Park'." 20 And Mr. Harris deals with the September 21 5th meeting. 22 Would you agree with me, Mr. Harnick, that 23 no matter what explanation you may have today for this 24 that you were asked front and center in a series of 25 appearances in the House, in public, as to whether the
291 remark, "Get the 'blank' Indians out of the Park" was 2 made by politicians or Cabinet members in discussions 3 about Ipperwash leading up to the shooting of Dudley 4 George? 5 A: Yes. 6 Q: And it's fair to say that in essence 7 you chose not to disclose at that time what you've 8 disclosed to the Commissioner yesterday? 9 A: That's so. 10 Q: And would you agree with me that when 11 you answered Mr. Scullion, when he asked you the question 12 -- when you answered Mr. Scullion and said you had not 13 been asked and that's why you did not raise it, what you 14 left out at that time is the fact that you had been 15 asked. And you had been asked repeatedly, perhaps five 16 (5) different days in the House in 1996, true? 17 A: Well, I -- I had not read these or 18 seen these until this morning and -- and it is true and - 19 - and certainly I approached this on the basis that we 20 were in a political forum. 21 And certainly I told you how difficult 22 this has been for me and I came here very specifically 23 and under oath and when asked the specific question in 24 that circumstance I've given you the answer that I've 25 given you.
301 Q: You'd agree with me that the failure 2 to disclose in 1996 on those five (5) or six (6) days in 3 Legislature was not about not being asked, it was about 4 loyalty and friendship to Premier Mike Harris? 5 A: I -- I think there was loyalty and -- 6 and friendship and there were political issues and this 7 is a politically-charged atmosphere, very different than 8 the atmosphere of a Commission or a Court process. 9 Q: But you understood, as Attorney 10 General at the time, that there was a very serious 11 obligation when speaking in the House, to tell the truth? 12 A: Yes. 13 Q: And so the decision not to make the 14 disclosure that you made at that time, repeatedly, was at 15 least significantly in part due to the loyalty and 16 friendship you held for Mike Harris? 17 A: I would think that's fair. 18 Q: And you'd agree with me that -- 19 A: And -- and for the fact that you do 20 pay -- play a political role in a government. 21 Q: And you'd agree with me that that 22 same loyalty and friendship is what caused you the agony 23 you described yesterday? 24 A: Yes. 25 Q: And it's that same loyalty and
311 friendship with Mike Harris that has prompted you, a 2 former Minister of Native Affairs, to flatly reject the 3 clear racist overtones to the words, quote, "I want the 4 fucking Indians out of the Park", isn't it? 5 A: Well, look, you've -- you've put your 6 theory to me and I've rejected it. I've said that I 7 believe that Mike Harris was speaking about the occupiers 8 in a moment of anger and -- and I -- and that is who he 9 was referring to, as opposed to the broader proposition 10 that you put to me and at the end, it's for the 11 Commissioner to determine. 12 COMMISSIONER SIDNEY LINDEN: Yes, you're 13 not going to go back to the point you made yesterday. 14 THE WITNESS: But I, you know -- 15 COMMISSIONER SIDNEY LINDEN: You just did 16 and -- 17 THE WITNESS: -- you have your theory and 18 I have mine. 19 MR. JULIAN FALCONER: I just -- what I 20 want to avoid, Mr. Commissioner, it's -- this is 21 difficult -- a difficult area for the Witness, I 22 understand. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: And also for the 25 examiner, to be fair.
321 COMMISSIONER SIDNEY LINDEN: No, that's 2 fair. 3 MR. JULIAN FALCONER: And I don't want to 4 be arguing with the Witness or have the Witness directing 5 me that I've asked it before. And if you do, Mr. 6 Commissioner-- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: -- that's 9 different, but one of the problems I have, and I'm going 10 to ask with respect, because I have other questions, I 11 have another hour to go, I have other questions of this 12 witness -- 13 COMMISSIONER SIDNEY LINDEN: On this 14 point? 15 MR. JULIAN FALCONER: No, no. 16 COMMISSIONER SIDNEY LINDEN: No, that's 17 fine. Then let's move on. 18 MR. JULIAN FALCONER: No, but I -- I'm 19 going to ask, Mr. Commissioner. The Witness is a lawyer, 20 he's a litigation lawyer, and if I were in the Witness -- 21 I'd -- couldn't help litigating myself, but I'm going to 22 ask, Mr. Commissioner, through you -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN FALCONER: -- if the Witness 25 could try to simply direct himself --
331 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MR. JULIAN FALCONER: -- to answering the 3 questions. 4 COMMISSIONER SIDNEY LINDEN: That's fine, 5 Mr. Falconer. You're absolutely right and we'll be 6 vigilant. Carry on. 7 MR. JULIAN FALCONER: Thank you. 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: Now, sir, I understand that you've 11 rejected my theory, as you called it, but what I asked 12 you was a specific point. It wasn't what we were talking 13 about yesterday. 14 You did not bring up the issue of your 15 loyalty and friendship to Mike Harris yesterday as the 16 context for not disclosing in the House on at least five 17 (5) or six (6) different days that this remark had been 18 made. 19 You had never spoke to that yesterday. 20 COMMISSIONER SIDNEY LINDEN: No, but he 21 gave you the answer, the same answer today as he gave you 22 yesterday. 23 MR. JULIAN FALCONER: And I am now moving 24 on. 25 COMMISSIONER SIDNEY LINDEN: Okay.
341 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: And what I'm saying to you, sir, and 4 what I'm putting to you, is would you agree with me that 5 regardless of what you personally know about Mike Harris, 6 regardless of what you personally know, to acknowledge 7 that the words 'I want the fucking Indians out of the 8 Park' has racist overtones? 9 Would it put your -- your friend, and 10 someone you are loyal to, in a negative, uncomfortable 11 light? Would you agree that that is the position you'd 12 be putting him in? 13 A: Well, I -- I don't agree with your 14 interpretation. You asked me very specifically yesterday 15 whether -- and I -- I'm paraphrasing, but you asked me 16 whether, because of that statement, more broadly, it had 17 racial overtones or was -- and I answered, I believe, 18 that he did not mean it in a -- in a racist way. 19 He was frustrated, he made a mistake and 20 he was referring to those who were occupiers of Ipperwash 21 Provincial Park at that time. 22 Now, you're asking me, you're saying I've, 23 because of my loyalty and -- and friendship with him, 24 that -- that I should be accepting the broader 25 proposition again, that this statement was -- was
351 racially motivated and I don't -- I don't accept that. 2 Q: Fair enough. 3 A: We disagree. 4 Q: Fair enough. And -- and I didn't ask 5 you if it was racially motivated just now. I asked you 6 if the words had a racist overtone and -- and there's a 7 distinction. 8 A person can not be a racist -- 9 COMMISSIONER SIDNEY LINDEN: No. 10 MR. JULIAN FALCONER: I'm simply 11 explaining the distinction between -- 12 COMMISSIONER SIDNEY LINDEN: You don't 13 have to explain it. 14 MR. JULIAN FALCONER: All right. 15 COMMISSIONER SIDNEY LINDEN: You just ask 16 questions and then move on -- 17 MR. JULIAN FALCONER: Fair enough. I 18 thought if were operating on a dissidence -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. JULIAN FALCONER: -- that I could try 21 to correct it -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. JULIAN FALCONER: -- but you know 24 what -- 25 COMMISSIONER SIDNEY LINDEN: No, that's
361 fine. 2 MR. JULIAN FALCONER: -- I'll move on 3 because it's not worth the time loss. 4 COMMISSIONER SIDNEY LINDEN: Thank you, 5 Mr. Falconer. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: Sir, in February -- I'm sorry in June 9 of -- of 1998 the Supreme Court of Canada issued a ruling 10 in a case called Regina and Williams, the challenge for 11 cause racial bias case. 12 Does -- does this sound familiar at all? 13 Relating to questions around the ability of counsel to 14 challenge jurors for cause based on potential racial 15 bias? 16 A: Yes. 17 Q: You would have been Attorney General 18 at the time. 19 A: Yes. 20 Q: There is a passage, it's one 21 paragraph, that I wanted to read to you, and Mr. 22 Commissioner, it's paragraph 58, a judgment. 23 Mr. Commissioner, Mr. Eyolfson isn't with 24 me today and I know he gave me copies to hand out with 25 this judgment but as I look around in my binders we'll
371 spend more time me looking for it that than simply 2 reading to the Witness. 3 COMMISSIONER SIDNEY LINDEN: How long is 4 the passage? 5 MR. JULIAN FALCONER: It's -- it's 6 called, Williams -- 7 COMMISSIONER SIDNEY LINDEN: No, I mean-- 8 MR. JULIAN FALCONER: Oh, the passage is 9 -- it's -- it's three (3) paragraphs inside one (1) 10 paragraph of the judgment. 11 The citation for it so that it can be 12 brought up is 99 -- (1998)1 SCR 1128 -- (1998) 1 SCR 13 1128. 14 COMMISSIONER SIDNEY LINDEN: You're going 15 to read the passage to the Witness -- 16 MR. JULIAN FALCONER: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- and ask 18 him to comment on it or -- 19 MR. JULIAN FALCONER: Well, I'm going -- 20 I -- I have a specific question to ask him. 21 MR. HARVEY STROSBERG: Page please and 22 the paragraph number. 23 MR. JULIAN FALCONER: Yes. Thank you 24 very much, Mr. Strosberg. It's paragraph 58. As you 25 know, Mr. Strosberg, they don't give the page numbers so
381 you -- you --technology is a wonderful thing. 2 COMMISSIONER SIDNEY LINDEN: If you need 3 a hardcopy of the -- 4 MR. JULIAN FALCONER: What I can do is if 5 Mr. Strosberg agrees to allow me to read over his 6 shoulder I'll give my hardcopy to the Witness; is that 7 all right? 8 MR. HARVEY STROSBERG: I'd be happy to 9 let him do that. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 12 (BRIEF PAUSE) 13 14 THE WITNESS: Thank you. 15 16 (BRIEF PAUSE) 17 18 MR. JULIAN FALCONER: I had an epiphany. 19 Thank you, Mr. Strosberg. 20 COMMISSIONER SIDNEY LINDEN: I like the 21 idea of you and Mr. Strosberg working so closely together 22 like this. 23 MR. JULIAN FALCONER: It's always an 24 honour to be helped by senior counsel. 25
391 (BRIEF PAUSE) 2 3 MR. JULIAN FALCONER: Thank you. So you 4 have your copy, sir? Could you hand this to the 5 Commissioner, please? Thank you. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: If you look at paragraph 58 of this 10 judgment the focus that the Court had in this particular 11 case related to the question of potential racial bias as 12 it related to persons of Aboriginal background. 13 Aboriginal Legal Services of Toronto was an intervenor 14 and I was counsel for another party on this matter. But 15 I want to read paragraph 58, the third page in, to you. 16 17 (BRIEF PAUSE) 18 19 Q: The court -- it's Justice McLachlin, 20 Conclusion: 21 "Although they acknowledged the 22 existence of wide -- of the existence 23 of wide-spread bias against Aboriginals 24 both Chief Justice Esson and the 25 British Columbia Court of Appeal held
401 that the evidence did not demonstrate a 2 reasonable possibility that perspective 3 jurors would be partial. 4 In my view there was ample evidence 5 that this wide-spread prejudice 6 included elements that could have 7 affected the impartiality of jurors. 8 Racism against Aboriginals includes 9 stereotypes that relate to credibility, 10 worthiness and criminal propensity. As 11 the Canadian Bar Associated stated in 12 locking up Natives in Canada, a report 13 of the Committee to the CBA, quote, 14 'Put at its baldest there is an 15 equation of being drunk, Indian, and in 16 prison. 17 Like many stereotypes this one has a 18 dark underside. It reflects a view of 19 Native people as uncivilized and 20 without a coherent social or moral 21 order. The stereotype prevents us from 22 seeing Native people as equals." 23 And the Court goes on to say -- this is 24 the Court: 25 "There is evidence that this wide-
411 spread racism is translated into 2 systemic discrimination in the criminal 3 justice system. See Royal Commission 4 on Aboriginal Peoples [and various 5 other reports]." 6 And she goes on to say: 7 "Finally..." 8 And do you see the "finally" passage, Mr. 9 Harnick? 10 A: Yes. 11 Q: "Finally, as Chief Justice Esson 12 noted, tensions between Aboriginals and 13 non-Aboriginals have increased in 14 recent years as a result of 15 developments in such areas as land 16 claims and fishing rights. 17 These tensions increase the potential 18 of racist jurors sided with the Crown 19 as the perceived representative of the 20 majority's interests." 21 Now, can I ask you, sir, first of all as 22 this judgment actually was released in June of 1998 and 23 argued in February of 1998, it's fair that, first of all, 24 place as Attorney General, you would have seen this as a 25 very significant statement by the Supreme Court of
421 Canada? 2 A: Yes. 3 Q: And do you take any issue with the 4 validity of this statement? 5 A: No. 6 Q: And it's fair that one of the things 7 the Court noted is that the tensions between Aboriginals 8 and non- Aboriginals have increased in recent years as a 9 result of developments in areas such as land claims and 10 fishing rights. That's fair isn't it? 11 A: Yes. 12 Q: And it's fair to say that the 13 tensions are linked by the Court and I take it by use 14 since you agree with a further promulgation of problems 15 of prejudice and racism and how people view Aboriginal 16 peoples, correct? 17 A: Yes. 18 Q: And in terms of the reference to land 19 claims and the reference to fishing rights, in essence 20 what the Court's addressing, and I'm going to suggest to 21 you what you've actually experienced, whether as Attorney 22 General are now in dealing with land claim matters, what 23 the Court has experienced is a level of concern and 24 anxiety on the part of non-Aboriginals as to the security 25 of their property, for example, correct?
431 A: I -- I mean I'm not sure that that's 2 what the Court is referring to. But I -- I can certainly 3 indicate from experience that land claims create that 4 concern, or have the potential to create that concern if 5 they're not dealt with appropriately and -- and people 6 aren't advised of what the real implications of settling 7 land claims might be. 8 Q: And in fact, one of the things that 9 you've just pointed out is that until people are properly 10 informed as to the benefits, sometimes ignorance can 11 drive them to prejudice views that they wouldn't 12 otherwise have. 13 Is that true? 14 A: I -- I suppose it is. 15 Q: And it's -- and you were the Minister 16 of Native Affairs, so this was your bailiwick, correct? 17 A: Yes. 18 Q: And it's also true that in addition 19 to ignorance, fear, fear of the unknown, fear of being 20 forced to share your property, those things can drive 21 prejudice? 22 A: Yes. 23 Q: And when there's a reference to 24 fishing rights in -- at least contextually speaking it 25 was your experience and I put it to you at your
441 experience today, that one of the issues that troubles 2 some members of non- Aboriginal communities is that there 3 seems to be different rules applied for their fishing 4 versus fishing by Aboriginal purposes -- for purposes for 5 harvesting, is that true? 6 A: Yes. 7 Q: And I apologize for jumbling the 8 question, I'm sorry. 9 A: No that -- 10 Q: I'm going to ask you to turn up a 11 document that you were given notice of but is not in your 12 binder. Could this please be handed to the witness? 13 I do not believe there's an inquiry 14 document number but I'll try to dig it out. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Now, what I'm putting before you is 22 an article from the Peterborough Examiner that you were 23 given notice of, dated October 29, 1994. And the 24 headline is, PC Leader Slams, quote "Do Nothing" close 25 quote, Natives.
451 The first paragraph reads: 2 "Progressive Conservative Provincial 3 Leader Mike Harris blasted Natives who 4 [quote] 'Spend all their time' [close 5 quote] on land claims and [open quotes] 6 'Do nothing' [close quotes] to help 7 themselves economically. 8 At a small gathering of tourism 9 business people of Elmhirst Resort on 10 Rice Lake, Friday morning, Harris said 11 the NDP Government is [quote] 12 'Willing to give away Northern Ontario' 13 [close quotes] to settle Aboriginal 14 land claims." 15 Now, just stopping you there, Mr. Harris 16 is -- is actually from North Bay; is that right? 17 A: Yes. 18 Q: "Going on he said any negotiations on 19 land claims should involve all sectors 20 of the population that live near the 21 areas being discussed. Not just 22 between the Province and Aboriginal 23 groups. [quote] 24 'There's a whole notion of guilt 25 because Native people haven't fully
461 adapted from the reservations to being 2 full partners in this economy' [closed 3 quotes] Harris said. 4 [open quotes] 'We can't let that guilt 5 preclude us from reaching a common 6 sense solution.' [close quotes]" 7 And at the bottom of the page, starting 8 with "Too many"; do you see that, in the same column? 9 A: Yes. 10 Q: Open quotes: 11 "Too many [and it puts Natives in 12 brackets] spend all their time on 13 courts and lawyers and they just stay 14 home and do nothing." 15 Now, would you agree with me that, first 16 of all, if the quotes of Mr. Harris in this article are 17 true, Mr. Harris is displaying his concern over the issue 18 of the threat to Northern Ontario of potential land 19 claims, among other things, just based on his quotes? 20 21 (BRIEF PAUSE) 22 23 A: Can -- can you ask me the -- the 24 actual question again? 25 Q: Sure. And I'm particularly referring
471 to the second paragraph -- 2 A: Right. 3 Q: -- "Harris said the NDP Government is 4 willing to give away Northern Ontario 5 to settle Aboriginal land claims." 6 I'm asking you, would you agree with me, 7 just from these quotes, that Mr. Harris appears, if these 8 quotes are accurate, to be displaying an anxiety or a 9 concern over the loss of major lands in Northern Ontario 10 flowing from the land claim process -- 11 A: Well, I -- 12 Q: -- if these quotes are accurate? 13 A: -- I -- you know, I -- look, I -- 14 you'll obviously want to ask him about what -- what he 15 meant but as -- as I can -- can see this, one of the 16 things that Mr. Harris was concerned about and -- and 17 that I can comment about is that where land claims were 18 legitimate, land claims had been accepted for 19 negotiation, that the people in the area feel comfortable 20 that the negotiating team understands their issues and 21 their concerns. 22 And -- and I think that, you know, 23 certainly -- certainly that is something that I -- I 24 understood Mr. Harris to feel around the -- the issue of 25 how land claims were going to be negotiated in the
481 Province of Ontario. 2 So, I -- I think from that -- from that 3 point of view he wanted to make sure that people felt 4 comfortable with -- with the process that was being 5 followed and that that was his belief as to how land 6 claims should be negotiated. 7 Q: And -- 8 COMMISSIONER SIDNEY LINDEN: It seems to 9 me that these questions that are appropriately asked of 10 Mr. Harris. 11 MR. JULIAN FALCONER: Well, I agree with 12 you but for the context of who's on the stand, the 13 Minister of Native -- 14 COMMISSIONER SIDNEY LINDEN: Well, I -- 15 MR. JULIAN FALCONER: -- Affairs, and -- 16 and the link -- 17 COMMISSIONER SIDNEY LINDEN: I understand 18 but I'm not sure -- 19 MR. JULIAN FALCONER: -- to the -- 20 COMMISSIONER SIDNEY LINDEN: -- that he 21 has any more -- 22 MR. JULIAN FALCONER: No, no. I accept 23 that. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 MR. JULIAN FALCONER: I wasn't actually
491 going to -- I simply put it to him. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: And I -- I'd like to know, personally 5 speaking, did you ever speak to Mr. Harris about the 6 concerns he had over how land claims have been done 7 historically, given you're the Minister of Native 8 Affairs? 9 A: Oh, I -- I have no doubt that I -- I 10 would have spoken to him on occasion. Although, I was 11 given a -- a relatively free hand and there was a -- a 12 process that ONAS had that would research land claims, 13 that would accept them for negotiation, and that -- that 14 would begin the negotiation process where land claims 15 were -- were accepted. 16 And -- and certainly I think that the 17 concern that you always have in -- in that situation is 18 that your communications to the -- to the -- the broader 19 community are clear on -- on what the ramifications of 20 the land claim are. 21 I know that both the Province of Ontario 22 and -- and Canada have -- have a rule in their claims 23 processes that indicate that land that -- that's held in 24 -- in private ownership is not going to be changing hands 25 as a result of a land claim. And -- and it's important
501 for the public to understand that, that that be 2 communicated to them so that they have that level of 3 comfort to know that they're no going to lose their 4 homes. 5 And -- and I think that those are the -- 6 those are really the -- the key things that the political 7 people would be -- would be concerned about -- 8 Q: And -- 9 A: -- that the communications were 10 appropriate and -- and that people had a comfort level 11 with -- with what was going forward, and -- and mostly 12 that they wouldn't lose their homes or their private 13 property. 14 Q: And that's the very anxiety you and I 15 were discussing in the context of the Williams judgment, 16 yes? 17 A: Yes. 18 Q: And what I'd asked you about 19 personally speaking to Mr. Harris, far from, sort of, a 20 broader issue of him attempting to influence land claims 21 across the board, that -- that's more than I intend to 22 chew off today, Mr. Harnick, what I'm trying to get at 23 is, I take it that he would have conveyed to you the very 24 concerns he conveys in this Peterborough Examiner article 25 about his experience of non-Aboriginal stakeholders who
511 may have a role being left out of the process. 2 He might have expressed that to you? 3 A: Well, I -- I think, certainly, in -- 4 in constituting a negotiating team you had to do a couple 5 of things; one was the communication to the broader 6 public -- 7 Q: I -- I don't mean to cut you off, but 8 I'm addressing what Mr. Harris spoke to you about; that's 9 -- that's -- I'm trying to just focus you on that for a 10 minute. I'm not trying to stop him from answering, but I 11 am trying to focus you. 12 What I was asking you: Did Mr. Harris 13 express a concern about that to you? 14 A: Well, Mr. Harris' concern would have 15 been that negotiating teams would be seen to reflect the 16 -- the community that they were representing. 17 Q: So, he would have expressed that 18 sentiment? 19 A: Yes. 20 Q: All right. Fair enough. And the -- 21 the second document that I want you to take a look at -- 22 the second document I'm going to ask you to look at flows 23 from a article from Ontario Out of Doors? 24 25 (BRIEF PAUSE)
521 Q: And I'm putting that in front of you. 2 It's a May 1995 article that includes an interview of Mr. 3 Harris. Could you turn to the third page of that 4 document. It should say: 5 "Tory leader Mike Harris speaks out on 6 game and guns." 7 Do you see that? 8 A: Yes. 9 Q: The first column of -- of this -- 10 it's referred to as a interview by Bob Reguly. 11 "In the run-up to the provincial 12 election Ontario Out of Doors sought 13 interviews with the leaders of the 14 three (3) main parties about topics of 15 interest to our readers. NDP Premier 16 Bob Rae and Liberal Leader Lyn McLeod 17 rejected the opportunity to present 18 their views. Progressive Conservative 19 Leader Mike Harris responded willingly. 20 Fish and game laws should be enforced 21 against Indians and the registration of 22 rifles and shotguns won't solve the 23 crime problem according to Conservative 24 Leader Mike Harris. 25 Harris, a hunter an angler from North
531 Bay said he had strong doubts about the 2 value of long gun registration on the 3 proposed legislation before 4 Parliament." 5 And he goes on to talk about the issue of 6 -- of gun registration. But, turning to the next page, 7 the first column on the next page -- 8 A: Yes. 9 Q: -- third and fourth paragraph down, 10 the -- the paragraph that starts, "Harris said..." 11 "Harris said [this is the first column, 12 third paragraph down]... 13 Harris said he objected to the NDP 14 Government shutting out stakeholders 15 like cottage owners, tourist operators, 16 and hunters in its secret negotiations 17 over Indian land claims. [Quote] 'The 18 land doesn't belong to Bob Rae or Bud 19 Wildman or the Government of Ontario, 20 it belongs to the Crown which is the 21 people of Ontario. So the people 22 should be involved in the discussions' 23 he said. This has not happened so 24 there has been a lot of resentment." 25 And you'd agree with me that that again
541 reflects our discussions to-date. Is that right, Mr. 2 Harnick? 3 A: Yes. 4 Q: And the reference to resentment by 5 Premier Mike Harris -- 6 MR. HARVEY STROSBERG: Can I just -- 7 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 8 Strosberg? 9 MR. HARVEY STROSBERG: -- ask whether 10 it's appropriate to cross-examine this Witness on Mr. 11 Harris' statements? I -- I would have thought that 12 that's not the way to deal with it. 13 MR. JULIAN FALCONER: This isn't about 14 cross-examining. The Witness could have said No, never 15 heard him say this in a million years, and then I'd be on 16 my way. But, he has said this accurately reflects a 17 sentiment and a concern and I'm trying to deal with it 18 without taking too much time. I'm going efficiently. 19 But there's nothing wrong with this as 20 long as I stay within the bounds of a Witness who says, 21 Yes, that's consistent with my experience and that's 22 where I'm at. 23 MR. HARVEY STROSBERG: The -- the 24 statement was put to the Witness -- the first question 25 was put to the Witness on the basis if Mr. Harris made
551 the statement. The "if" was dropped in this question. 2 COMMISSIONER SIDNEY LINDEN: The "if" 3 should be -- 4 MR. JULIAN FALCONER: Well, as the 5 Witness said this is consistent; that's why I dropped it. 6 MR. HARVEY STROSBERG: And -- 7 MR. JULIAN FALCONER: Sorry. 8 MR. HARVEY STROSBERG: -- and in my 9 submission, Mr. Commissioner, your -- your comments 10 previously about whether this is a matter for Mr. -- for 11 -- for Mr. Harris, apply here, this Witness shouldn't be 12 cross-examined on Mr. Harris' -- on -- on newspaper 13 reports of what Mr. Harris said. I mean, we're really 14 getting -- the -- the probative value of this just -- is 15 small. 16 COMMISSIONER SIDNEY LINDEN: Yes, well, 17 I'm not sure how much farther we're going with this, but 18 up until now I haven't seen any difficulty with it. I 19 don't know -- 20 MR. JULIAN FALCONER: I'm not going very 21 far. 22 COMMISSIONER SIDNEY LINDEN: That's fine 23 then. This is an Inquiry, the rules are a little more 24 relaxed, Mr. Strosberg, but that doesn't mean everything 25 goes, so we have to be careful.
561 2 CONTINUED BY MR. JULIAN FALCONER: 3 Q: At the bottom line of that same 4 column we were on, Mr. Harnick, do you see, "unless the 5 Supreme Court decision"? 6 A: Yes. 7 Q: Right at the last line of that column 8 we were just on at page 2 of the article. 9 "Unless the Supreme Court decision 10 gives an Indian Band special Aboriginal 11 rights to game and fish, Natives and 12 non-Natives should be treated alike, 13 Harris said. [bracket] (The NDP 14 Government continues the previous 15 Liberal Governments interim enforcement 16 policy of leniency for Indians who 17 ignore hunting and fishing 18 regulations." 19 And to be fair to anyone reading this, it 20 strikes me that that is not a quote from Mr. Harris and I 21 just want to point that out to you, sir. It looks like 22 the -- the editor stuck something in there and I -- I 23 raise that to your attention, to be fair. 24 "If the Conservatives form the 25 Government [quote] 'The orders from
571 Mike Harris will not be the same as 2 they are from Bob Rae to lay off. The 3 orders will be if someone is violating 4 the laws of our conservation and 5 affecting the management of our 6 resource, then we will apply the law. 7 That was the policy of our Government 8 when we were in power. It changed when 9 Shelly Peterson took over Resource 10 Policy and carried on with Bob Rae and 11 Bud Wildman." 12 Now, what I want to ask you, even though 13 there's some interesting reading beyond that, what I want 14 to ask you is that when we talked about fishing rights 15 before and that apprehension, that concern that there's 16 one set of rule for Aboriginals entrusted or -- or seen 17 as enjoying certain harvesting rights, and for -- another 18 set of rules for non-Aboriginals, that was a concern you 19 experienced as Minister of Native Affairs, yes? 20 A: Well, you know, I -- I think that 21 what the Government did and that's all I can -- I can 22 really comment on is -- 23 Q: Yes. 24 A: -- Minister Hodgson worked very very 25 hard to develop agreements in terms of fishing and -- and
581 harvesting in areas where their were those issues to try 2 and -- and to the greatest degree possible, avoid issues 3 of confrontation. 4 And -- and certainly that's one of the 5 things that -- that he did and I think he did it quite 6 successfully. You know, certainly that -- that's the 7 degree to which I can comment on it because it was an 8 issue for the line Ministry to deal with and -- and I 9 think they did. 10 And they were able -- I mean, I know for 11 instance, if you take a look at the Algonquin of Golden 12 Lake issues, there were successive harvesting agreements 13 that were entered into that worked very well for moose 14 hunting issues, I gather, on the east side of Algonquin 15 Park. 16 So, that was a way that -- that they dealt 17 with it and you know, certainly I -- I think it was dealt 18 with appropriately. 19 Q: And now again, in the same context as 20 my question before, in discussions you had with Mr. 21 Harris now -- Now, I'm going to issues of discussions 22 you had, did he convey to you his concern, in this 23 context, that Natives and non-Natives should be treated 24 alike? 25 A: Well --
591 Q: I want to know what he conveyed. 2 A: I don't know if I had any specific 3 conversations with him about that. I mean, I suspect 4 that my conversations would have been more along the 5 lines of discussions with Minister Hodgson. And they 6 would have involved officials from ONAS and -- advising 7 officials from MNR about legal positions, court 8 decisions, the way -- the way courts had interpreted 9 these -- these issues. 10 And -- and certainly I never -- I never 11 got any push back from -- from Mr. Harris as a result of 12 -- of the discussions and the information that was being 13 conveyed from ONAS officials, lawyers to MNR. 14 Q: Thank you. I propose to file as the 15 next two (2) exhibits, Mr. Commissioner, the last two (2) 16 articles I referred to. So, the next exhibit, with your 17 approval, Mr. Commissioner, would be the article from the 18 Peterborough Examiner dated October 29th, 1994. 19 THE REGISTRAR: P-978, Your Honour. 20 21 --- EXHIBIT NO. P-978: October 29 1994, Peterborough 22 Examiner article, P.C. Leader 23 Slams 'Do Nothing' Natives. 24 25 MR. JULIAN FALCONER: And then the next
601 exhibit, with your approval, Mr. Commissioner, would be 2 the extract from the magazine, Ontario Out of Doors, 3 dated May 1995. 4 COMMISSIONER SIDNEY LINDEN: P-979. 5 THE REGISTRAR: P-979, Your Honour. 6 7 --- EXHIBIT NO. P-979: May 1995, Ontario Out of 8 Doors article, Tory Leader 9 Mike Harris Speaks Out on 10 Game and Guns. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Now, I'm moving on, Mr. Harnick, to 14 another issue and I just have to unfortunately pick up a 15 box and bring it to the front. 16 17 (BRIEF PAUSE) 18 19 Q: We heard evidence from Ms. Jai on the 20 issue that she saw a change in Government policy and/or 21 direction to some extent, I don't want to overstate this, 22 in -- in some of the litigation that was being conducted 23 and positions being taken on litigation, in the context 24 of the shift from one government to another, from the Rae 25 Government to the Harris Government.
611 And it was -- it was not -- it was not a 2 particularly lengthy discussion, but I -- I raise with 3 you, sir, you had mentioned yesterday, you went on at 4 length actually with Mr. Klippenstein -- and I don't say 5 that critically, I just mean you -- you exposed the fact 6 that there were many things that were done that you 7 impliedly stated broadened Aboriginal rights and 8 interests with the support of Mr. Harris. 9 Do you remember taking about that 10 yesterday? 11 A: Yes. 12 Q: Could you turn to Tab 5 of the binder 13 I placed in front of you? And you're now counsel that 14 practices in the area on behalf of the Federal Government 15 on land claim issues, correct? 16 A: Yes. Well, I -- I'm not Counsel, I'm 17 -- I'm a land claim negotiator. 18 Q: All right. And as a land claim 19 negotiator you -- you've no doubt developed some 20 familiarity with the state of the case law out there on - 21 - on land claim issues? 22 A: Some. 23 Q: And I'm going to very respectfully 24 and non-facetiously say to you, sir, I -- I suspect you 25 have a better -- much better knowledge than I do.
621 At Tab 3, if you flip over to Tab 3 for a 2 minute, you'll see a judgment -- and I'm probably 3 mispronouncing it, but -- Nikal and Her Majesty the Queen 4 dated -- 5 A: Yes. 6 Q: -- April 25th, 1996; do you see that? 7 A: Yes. 8 Q: Are you familiar with this judgment? 9 A: I might want to refresh my memory, 10 but -- 11 Q: Well, the head note's right at the 12 front, so -- and -- and I don't intend to go at length 13 about this but the easiest way, frankly, Mr. 14 Commissioner, is to simply give the Witness a chance to 15 look at the head note in the first paragraph. So -- 16 COMMISSIONER SIDNEY LINDEN: Where's the 17 date on the judgment on -- 18 MR. JULIAN FALCONER: The date of the 19 judgment, if you turn to Tab 3, the front page, halfway 20 down you see it says, "April 25th, 1996", is the second 21 set of dates. It was argued November 30th, 1995. 22 COMMISSIONER SIDNEY LINDEN: This is Tab 23 3? 24 MR. JULIAN FALCONER: That's right. You 25 see, about halfway down --
631 COMMISSIONER SIDNEY LINDEN: Yes, I do. 2 MR. JULIAN FALCONER: -- right after, 3 "File number 23804" -- 4 COMMISSIONER SIDNEY LINDEN: Yes. Yes, 5 yes, yes. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: So, argued November 30th, 1995, 9 decided April 25th, 1996. And if you just look at the 10 first paragraph of the facts, I simply thought that with 11 that refresher on the page -- on the -- the harvesting 12 issues relating to salmon and a river running through 13 Aboriginal lands, it might assist you on -- on this 14 particular case. 15 A: And -- and where am I looking at the 16 head note? 17 Q: On the first page. If you go to the 18 first page, the first paragraph of the head note: 19 "Appellant is a Native charged with 20 fishing without a license." 21 A: I'm -- I'm not looking at the same 22 thing -- 23 Q: Yes. 24 A: -- you are. 25 Q: You -- you should be at Tab 3. And I
641 confused you because I first took you to Tab -- 2 A: Oh, I'm sorry. 3 Q: It's my fault. 4 A: You took me to Tab 5. 5 COMMISSIONER SIDNEY LINDEN: That's 6 right. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: Yeah. And -- yeah. And then I went 10 back to Tab 3. 11 A: Yes. 12 Q: It's my fault. I -- sorry about 13 that. You'll see halfway down the page the dates; it was 14 argued November 30th, 1995, judgment April 25th, 1996. 15 And then the second-to-last paragraph states the facts of 16 the case. 17 And rather than me reading it all out, it 18 involves an issue in British Columbia relating to the 19 British Columbia Fishery Regulations and Harvesting 20 Rights as they pertain to salmon and a river flowing 21 through a Reserve. 22 Do you see that? 23 A: Yes. 24 Q: Do you have any familiarity with this 25 judgment?
651 A: I don't. 2 Q: Now, the Nikal judgment crystalized 3 major issues surrounding Aboriginal fishing rights and 4 failure to comply with mainstream government legislation 5 as it pertained to licensing, and you see that in the 6 second paragraph of that first page: 7 "Appellant was acquitted at trial and 8 the acquittals were upheld by the 9 Summary Conviction Appeal Judge. The 10 acquittals were set aside by the Court 11 of Appeal. The constitutional question 12 before this court queried whether 13 Section 4 of the regulations and 14 licenses issued under it were of no 15 force or effect with respect to the 16 Appellant in the circumstances by 17 reasons of the Aboriginal rights 18 protected by Section 35 of the 19 Constitution Act. 20 In essence to issues raised, one 21 whether the Band's fishing bylaw 22 applies to the Bulkley River where it 23 flows through the Band's reserve and 24 whether the license requirement under 25 Section 4(1) of the Regulation
661 infringes Aboriginal rights contrary to 2 Section 35." 3 So, that crystallizes it pretty fairly. 4 And what I simply want to draw your attention to is at 5 Tab 5 there is a factum filed by the Ministry of the 6 Attorney General for the Province of Ontario dated March 7 28th, 1995. And it's quite a lengthy factum of the 8 Intervenor. 9 A: Yes. 10 Q: And of course March 28th, 1995, would 11 have been during the currency of the NDP/Rae Government? 12 A: Yes. 13 Q: And it would have been prior to the 14 June 1995 election of the Harris Government, correct? 15 A: Yes. 16 Q: And if you could simply -- I'll take 17 you to a few pages without reading at length at all. If 18 you take -- if you go to page 23 of the factum, paragraph 19 55: 20 "Ontario submits, however, that 21 Aboriginal rights of self-government 22 and a fortiori, the powers of self- 23 regulation implicit in an Aboriginal 24 right to fish are, once properly 25 understood, compatible with the
671 sovereignty of the Crown. 2 In Ontario's view the Courts below 3 contrary conclusion in Delgamuukw is 4 based in part -- [and I apologize for 5 the horrible pronunciation] is based in 6 part on two (2) misconceptions of the 7 nature of Aboriginal rights of self- 8 government." 9 And the -- the last line of paragraph 56: 10 "Aboriginal rights take their shape and 11 definition from the history, customs, 12 and traditions from which they derive, 13 not from political categories imported 14 from an entirely different culture." 15 And then the top of page 24, paragraph 57, 16 just the first sentence: 17 "Second, it is an error to regard 18 Aboriginal rights of self-government as 19 an affront to the principle of 20 legislative supremacy." 21 And if you flip to page 27... 22 23 (BRIEF PAUSE) 24 25 Q: Actually it starts at 26 at the
681 bottom. At paragraph 62 an interpretation of the 2 Constitution Act is offered in this Ministry factum at 3 the bottom of page 26 and top of page 27. 4 And you'll see that the interpretation 5 that continues at the top of page 27 says: 6 "All it says about Aboriginal peoples 7 or their interest is that it is 8 Parliament, not the Provinces that has 9 the exclusive power to make laws in 10 relation to them. The only impact that 11 this arrangement appears to have had on 12 Aboriginal rights or for that matter on 13 common-law rights generally was to 14 change and perhaps clarify which 15 legislature would have the power to 16 regulate or extinguish them." 17 Next paragraph: 18 "In these circumstances it can hardly 19 be said that the only possible 20 interpretation of the Constitution Act 21 [quote] 'is that Aboriginal rights of 22 self-government were intended to be 23 extinguished'. [close quotes]" 24 And then paragraph 64: 25 "It makes no difference that the
691 Constitution Act did not confer 2 governance of its powers on Aboriginal 3 communities. Aboriginal rights do not 4 and cannot, as such, derived by grant 5 from the Sovereign. Their anchorage 6 necessarily reaches back before Crown 7 sovereignty was established and they 8 continue it common-law until the 9 Sovereign takes specific and competent 10 steps to extinguish them." 11 Now, these principles surrounding 12 Aboriginal self-governance, were they principles, not the 13 factum itself, but were the principles principles you 14 were familiar with at the time as Minister of Native 15 Affairs? 16 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 17 Strosberg? 18 MR. HARVEY STROSBERG: Mr. Commissioner, 19 this Witness should not be examined on the basis of a 20 document that he didn't prepare, he didn't authorize, and 21 was before his time and -- 22 COMMISSIONER SIDNEY LINDEN: We don't 23 know what his connection if any to the document was. You 24 were going to ask -- 25 MR. HARVEY STROSBERG: Well, he --
701 MR. JULIAN FALCONER: I'm going to -- 2 MR. HARVEY STROSBERG: -- he already -- 3 he already -- 4 COMMISSIONER SIDNEY LINDEN: No, not the 5 factum I don't think. 6 MR. JULIAN FALCONER: No. So, moving on. 7 The factum is not connected to this Witness because the 8 Witness wasn't the Attorney General at that time. 9 COMMISSIONER SIDNEY LINDEN: Well, see if 10 you can draw some connection. 11 MR. JULIAN FALCONER: Well, I was asking 12 him. The connection I'm seeking to draw was the 13 principles that were espoused here. Did he have some 14 familiarity with them as Minister of Native Affairs. 15 COMMISSIONER SIDNEY LINDEN: He shouldn't 16 be asked about them if he has absolutely no connection to 17 them. 18 MR. JULIAN FALCONER: Well, I'm going to 19 show that he does, but I -- I just need a little bit of 20 latitude. I'm moving quickly, I'm not spending any time 21 on the factum. 22 MR. HARVEY STROSBERG: It's -- it's not a 23 question of whether he's moving quickly or not. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. HARVEY STROSBERG: It's a question of
711 whether -- 2 COMMISSIONER SIDNEY LINDEN: It's 3 appropriate or not. 4 MR. HARVEY STROSBERG: -- it's 5 appropriate -- 6 MR. JULIAN FALCONER: That's fine. I can 7 -- I can do this another way. 8 COMMISSIONER SIDNEY LINDEN: Now -- 9 MR. JULIAN FALCONER: I can do this 10 another way. 11 COMMISSIONER SIDNEY LINDEN: You -- 12 MR. JULIAN FALCONER: Speed us up. 13 COMMISSIONER SIDNEY LINDEN: You can do 14 this another way? 15 MR. JULIAN FALCONER: Yes. Keep moving. 16 COMMISSIONER SIDNEY LINDEN: Let's see 17 what his other way is and then if it's objectionable to 18 you, Mr. Strosberg, say so. 19 MR. HARVEY STROSBERG: Well, I -- I am 20 just concerned that it's not tied in any way to this 21 factum. 22 COMMISSIONER SIDNEY LINDEN: Yes, I'm 23 concerned about it as well. 24 MR. JULIAN FALCONER: Well, it's -- I 25 said I can do it another way. And I -- let's -- let's
721 see my other way first before we... 2 COMMISSIONER SIDNEY LINDEN: Okay. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: If you turn to Tab 4, this is a 6 docket, a record of the Supreme Court of Canada as it 7 pertains to the Benjamin Nickle case and Her Majesty the 8 Queen in Right of Canada. Do you see that? 9 A: Yes. 10 Q: And the way these dockets work, just 11 for your information, sir, it's a twenty-three (23) page 12 document -- document. You're probably with this. It's 13 the most recent happenings on the filings working all the 14 way backwards to the original filing of the Appeal. Do 15 you understand? 16 So, if you go all the way backwards it's 17 one -- it's a docket that applies only to the Nickle 18 case. Do you understand? 19 A: Yes. 20 Q: All right. If you flip to page 16. 21 You recall I'd showed you the date of the factum, March 22 28th, 1995? 23 A: Yes. 24 Q: Now the docket for March 30th, 1995 25 for the -- for the Supreme Court of Canada reflects the
731 following entry: 2 "Intervenors factum twenty-four (24) 3 copies. See Order of [that refers to 4 Chief Justice McLachlin of course] P.S. 5 Notice of Withdrawal received on 6 September 21st, 1995 and factum 7 returned to Bert Robertson on September 8 21st, 1995 with service. Attorney 9 General for Ontario." 10 Now you were the -- 11 A: Wait. Where am I looking at -- I'm 12 sorry. 13 Q: Sorry. The docket at page 16 of 23-- 14 A: Yes. 15 Q: -- and the third entry down. 16 A: Yes. 17 Q: You see it's March 30th, 1995. 18 A: Yes. 19 Q: It shows the filing date originally 20 of the factum -- 21 A: Yes. 22 Q: -- consistent with the date I showed 23 you. Then it goes on to say: 24 "Notice of Withdrawal received on 25 September 21st, 1995 and factum
741 returned to Bert Robertson on September 2 21st with service. Attorney General for 3 Ontario." 4 Do you see that? 5 A: Yes. 6 Q: Now on September 21st, 1995 when this 7 factum was withdrawn you were the Attorney General. 8 A: Yes. 9 Q: And an issue of this magnitude 10 relating to harvesting rights and relating to the 11 position that the Province of Ontario took on Aboriginal 12 harvesting rights on a national scale was something 13 within your portfolio as Minister of Native Affairs, yes? 14 A: Yes. 15 Q: And it's fair to say that, indeed, 16 the issuance of the judgment which you'll find at Tab 3, 17 given it was dated April 25th, 1996, it would have been 18 part of your function to at least know of and understand, 19 not in detail, but the principles espoused by the Supreme 20 Court of Canada while you were Minister of Native 21 Affairs, yes? 22 A: Yes. 23 Q: Could you look at Tab 3. And in 24 particular could you look at the fourth page in where it 25 lists the interveners. Page 4 of 29, you look in the top
751 right hand corner of the judgment. Page 4 of 29. 2 A: Which -- which tab am I at? 3 Q: You're at Tab 3, you're at the 4 judgment and I apologize, sir, if I -- 5 A: Tab 3. 6 Q: -- it's not your fault, it's me. 7 A: All right. 8 Q: Tab 3, Nickle. If you look in the 9 top right hand corner, page 4 of 29. 10 A: Yes. 11 Q: You see the list of intervenors and 12 you're familiar with how Supreme Court of Canada judgment 13 is set out, under, "Author Cited". Under that -- under a 14 listing of cases, it then lists the parties. 15 Do you see that? 16 A: Yes. 17 Q: And at first -- 18 A: Well I -- I -- no I don't. 19 Q: Okay, no problem. 20 A: I see the list of authors -- 21 Q: Yes. And then you keep going. You 22 should be at page 4 of 29, top right-hand corner. Page 4 23 of 29 top right-hand corner. 24 Do you see 4 of 29 top right hand corner? 25 A: I see 4 of 29 but I don't see --
761 Q: Good. If you go halfway down, work 2 with me, if you go halfway down you'll see, Author Cited. 3 A: And then I see Coulson. 4 Q: That's right. 5 A: Yes. 6 Q: Now keep going down and you'll see 7 Peter R. Grant. 8 A: Yes. Oh, I -- I see, you're looking 9 at -- at counsel and -- 10 Q: Yes. 11 A: -- and now you're going to advise me 12 that Ontario had no counsel there. 13 COMMISSIONER SIDNEY LINDEN: Just wait 14 for the question, Mr. Harnick. 15 MR. JULIAN FALCONER: I'm sorry. 16 COMMISSIONER SIDNEY LINDEN: Go ahead. 17 Ask the question. 18 MR. JULIAN FALCONER: Thank you. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: Now, from this list do you see any 22 reference to the Ministry of the Attorney General for the 23 Province of Ontario? 24 A: I do not. 25 Q: All right. And if you look at the
771 style of cause, do you see any reference to the Province 2 of Ontario on the front page? 3 A: I do not. 4 Q: And our records indicate and the best 5 records are the Court's judgments that after the factum 6 was withdrawn on September 21st, 1995 espousing the 7 Aboriginal rights as described at Tab 5 that the Attorney 8 General for Ontario played no further role in this 9 judgment. 10 Is that consistent with your recollection? 11 A: I -- I have no recollection of ever 12 being briefed on this case or of -- of why Ontario did 13 what it did and -- and so this is news to me. 14 COMMISSIONER SIDNEY LINDEN: I don't see 15 how you can ask this Witness many more questions about 16 this, given that answer. 17 MR. JULIAN FALCONER: Well, I completely 18 concur that the question -- the next question I ask has 19 to be proper but I'm hoping you're going to give me a 20 chance to let me ask the question. 21 COMMISSIONER SIDNEY LINDEN: Well, given 22 that answer I don't see how you can ask him much more 23 about this issue. Let's see where you're going. 24 25 CONTINUED BY MR. JULIAN FALCONER:
781 Q: Thank you. Would you agree with me 2 that as the Attorney General for the Province of Ontario, 3 on a major harvesting rights case, and as -- with the 4 dual portfolio as Minister of Native Affairs, you ought 5 to have known about whether or not the -- the Province of 6 Ontario was abandoning a certain major constitutional 7 position in the Supreme Court of Canada litigation? 8 It would be something you ought to have 9 known about? 10 A: Well, I -- I didn't know. 11 Q: Fair enough. That's -- 12 A: I didn't know. 13 Q: -- a different question. 14 A: And -- and there -- I mean, you'll 15 have to ask the people who made the decision. 16 Q: No. I didn't -- sir, I wasn't being 17 critical of those people. I'm simply asking -- 18 A: I understand. 19 Q: -- that part of your functions would 20 generally involve, in the normal course, you having some 21 knowledge about this? 22 A: Well, I mean, if -- it's a hard 23 question for me to answer because I was not advised. And 24 I don't know the reason that I wasn't advised. 25 Q: Okay.
791 A: For instance, there may be some other 2 party who was advancing the same issues. I -- I don't 3 know that. And... 4 Q: For now, all we do know is that a 5 very -- I took you through those passages at Tab 5 of the 6 factum, right? 7 A: Yes. 8 Q: And I read them to you? 9 A: Yes. 10 Q: And you're a land claims negotiator? 11 A: Yes. 12 Q: Previously Minister of Native 13 Affairs? 14 A: Yes. 15 Q: So, these were fairly enlightened, 16 very articulate passages on Aboriginal harvesting rights, 17 correct? 18 A: None of which I would have taken 19 issue with. 20 Q: Right. And so -- 21 A: I'd agree with that. 22 Q: -- so for now all we do know is, for 23 the record, the Province of Ontario, for reasons we don't 24 know, simply withdrew both its factum and its 25 participation in the deal, correct, and --
801 A: And -- 2 Q: -- that's all we -- 3 A: -- and I don't recall being briefed 4 or asked about this. 5 Q: Fair enough. 6 A: And that's -- that's all I can tell 7 you. 8 Q: I simply raise this to your 9 attention, 1) for the opportunity to speak to it and 2) 10 because Ms. Jai spoke to the issue of a change in 11 litigation pattern. 12 But, I want to be fair to you, she 13 referred to an Adams judgment and I couldn't find a 14 judgment called Adams, to be fair. 15 So, I -- I want you to know that it's not 16 a -- a perfect fit, it's simply me trying to address an 17 evidentiary issue. 18 A: Yes. And -- and I wish I could help 19 you but no one advised me and -- that I can recall. 20 Q: All right. I propose to file this, 21 the Exhibits 5, 4 and 3, as the next set of exhibits 22 because, in my submission, they're important and they 23 reflect upon a line of questioning that -- that is going 24 to continue in this area, not today, not with this 25 Witness.
811 COMMISSIONER SIDNEY LINDEN: I 2 understand. Tab 5, 4 and 3? 3 MR. JULIAN FALCONER: That's right. And 4 I'm suggesting in that Order. Tab 5 therefore would be 5 the factum filed on March 30th, 1995. The factum is 6 dated March 28th, 1995. 7 Tab 4 would be the docket of the Supreme 8 Court of Canada. And my respectful submission is that 9 the wisest thing to do is to file the whole docket so 10 that if anybody has any questions about the development 11 of the case, they should be able to look at all of it, 12 not -- not just a piece. So, that's why I suggest the 13 whole docket. 14 And then finally Tab 3 reflects the 15 judgment of the Supreme Court of Canada in the Nikal 16 case. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MR. DONALD WORME: These will be filed as 19 separate exhibits? 20 MR. JULIAN FALCONER: Yes, that's what 21 I'm proposing, as each separate exhibits. So, we would 22 start with Tab 5. 23 THE REGISTRAR: Tab 5, which is P-980. 24 Tab 4, P-981. And Tab 3, P-982. 25
821 --- EXHIBIT NO. P-980: R.V. Nikal, Factum of the 2 Attorney General for Ontario, 3 March 28th 1995. 4 5 --- EXHIBIT NO. P-981: R.V. Nikal Supreme Court of 6 Canada Docket, File 23804. 7 8 --- EXHIBIT NO. P-982: R.V. Nikal, April 25/96. 9 Supreme Court Report. 10 11 COMMISSIONER SIDNEY LINDEN: Now, I know 12 you've been rushing along to try to keep within your 13 timeframe and I appreciate that. 14 MR. JULIAN FALCONER: That's what I'm 15 doing. 16 COMMISSIONER SIDNEY LINDEN: It's now 17 10:15 and I'd like you to finish before we take our 18 morning break. 19 MR. JULIAN FALCONER: I guessed that. 20 COMMISSIONER SIDNEY LINDEN: You knew 21 that. 22 MR. JULIAN FALCONER: That's why I didn't 23 ask -- 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 MR. JULIAN FALCONER: -- about a break.
831 COMMISSIONER SIDNEY LINDEN: That's fine. 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: Mr. Harnick, the -- the next document 5 I want to ask you about and draw to your attention is an 6 excerpt from a book passage that was brought to the 7 attention of your Counsel, and actually was brought to 8 the attention of Ms. Hutton as well. And it arises from 9 a book entitled, Promised Land, Inside the Mike Harris 10 Revolution, by John Ibbitson. 11 Are -- are you familiar with the book, 12 first of all? 13 A: I've seen the book, yes. 14 Q: All right. 15 16 (BRIEF PAUSE) 17 18 MR. JULIAN FALCONER: This was filed 19 previously, Mr. Commissioner, but I'd -- I'd ask -- I'm 20 going to work with the witness with one (1) copy. I mean 21 no discourtesy -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. JULIAN FALCONER: -- to the Court. 24 It's one (1) paragraph. We should be all right. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
841 That's fine. 2 MR. JULIAN FALCONER: If you could 3 provide that to the witness please. 4 THE WITNESS: Thank you. 5 MR. JULIAN FALCONER: You'll provide me a 6 brief indulgence. 7 8 CONTINUED BY MR. JULIAN FALCONER: 9 Q: There is a passage I brought to the - 10 - I wanted to bring to your attention that's included in 11 our notice to you, sir, and it's at page 101 of the 12 Ibbitson book. Could you turn to that page? 13 A: Yes. 14 Q: It's under the title or the -- it's 15 the last large paragraph on the page: 16 "One of Mike Harris's first acts as 17 Premier had been to address all the 18 Deputy Ministers. The top executives 19 in the huge Provincial Bureaucracy had 20 a closed door session." 21 And if you'd flip -- or the bottom line is 22 -- what -- the context the author's addressing is when 23 Mr. Harris first took power, all right, in -- in 1995: 24 "On that occasion he had delivered two 25 (2) messages. First, although the new
851 Government welcomed advice on how to 2 implement its agenda, that agenda was 3 not subject to debate [quote] 'I do 4 require your absolute commitment to the 5 final political determination of the 6 Government, Harris told them." 7 Now, first of all, for the purposes of my 8 question, sir, it doesn't matter if you actually knew of 9 the meeting, but I'm going to ask you anyway. Did -- did 10 you know of such a meeting happening? 11 A: No. 12 Q: All right. But would you agree with 13 me that the sentiment expressed, that Mr. Harris requires 14 the absolute commitment of the Deputy Ministers to the 15 final political determination of the Government, is -- is 16 a sentiment that was in existence? 17 A: I wouldn't think that that would be 18 unique to any Government. I mean it's -- I think it 19 would be something that any Premier would request of the 20 senior bureaucrats that he would be -- 21 Q: Yes. 22 A: -- that he would be appointing. 23 Q: Yes. And that -- the point being 24 that as Deputy Ministers they were appointed at the 25 pleasure of the Premier, correct?
861 A: Yes. 2 Q: And their first allegiance was owed 3 to the Premier, correct? 4 A: Well I think it was owed to the -- to 5 the Government and to the Government's agenda. 6 Q: Second: 7 "He reminded the Deputy Ministers that 8 they owed their first allegiance not to 9 their Minister, but to Harris himself. 10 This was a timely reiteration of a 11 political reality in parliamentary 12 democracies. Deputy Ministers are not 13 appointed by Ministers but by the 14 Cabinet Secretary, who is in turn 15 appointed by the Premier. As such, the 16 senior bureaucracy owes its first 17 loyalty to the Chief Executive. One 18 (1) reason that Ministers are sometimes 19 the last to know what's going on in 20 their Departments." 21 Now, I don't want to know about what he 22 might or might not have said in that respect, I'm simply 23 asking you about the reference to timely reiteration of a 24 political reality in parliamentary democracies. 25 Was it your experience as Attorney General
871 and Minister for Native Affairs, was it your experience 2 that Deputy Ministers who are not appointed by Ministers, 3 but by the Cabinet Secretary and was in turn appointed by 4 the Premier, was it your experience that this senior 5 bureaucracy owes its first loyalty to the Chief 6 Executive? 7 Was that your experience? 8 COMMISSIONER SIDNEY LINDEN: Well there's 9 the question. 10 MR. HARVEY STROSBERG: Sir, the -- the 11 question can be put without reference to the book. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. HARVEY STROSBERG: The book is just 14 being used as a bootstrap. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. HARVEY STROSBERG: In my -- in my 17 respectful submission, that there should be no reference 18 to the book. If counsel wishes to put the question, he 19 should put the question without the extract, unless the 20 witness has said that he adopts the extract in its 21 totality. 22 COMMISSIONER SIDNEY LINDEN: Yes, 23 sometimes it's needed to put the context and sometimes it 24 does act as a bootstrap. So exactly when and which is 25 not a clear line.
881 MR. JULIAN FALCONER: You'll appreciate, 2 Mr. Commissioner, it's equally likely or possible that 3 Mr. Harnick, as Attorney General at the time, knew about 4 this meeting. So the first step -- 5 COMMISSIONER SIDNEY LINDEN: You -- 6 MR. JULIAN FALCONER: -- is to ask him 7 whether he knows about the meeting. 8 COMMISSIONER SIDNEY LINDEN: That's fine, 9 but what Mr. -- 10 MR. JULIAN FALCONER: And then the second 11 step when he says he doesn't know about it, is to ask him 12 beyond the issue of the meetings, is the political 13 reality, which I suspect. 14 COMMISSIONER SIDNEY LINDEN: On other 15 occasions, Mr. Falconer, you have wound up towards your 16 question with a lot of editorial comment -- 17 MR. JULIAN FALCONER: Right. 18 COMMISSIONER SIDNEY LINDEN: -- that is 19 unnecessary to the question. 20 MR. JULIAN FALCONER: That's right. 21 COMMISSIONER SIDNEY LINDEN: So I think 22 that's all Mr. Strosberg -- 23 COMMISSIONER SIDNEY LINDEN: But I didn't 24 do it here. 25 MR. JULIAN FALCONER: Yeah, I didn't
891 here. 2 MR. HARVEY STROSBERG: Yes, what I'm 3 really saying is, is that the question can be put to who 4 appoints the Deputy Ministers, to whom do the Deputy 5 Minister owe their loyalty, et cetera. 6 COMMISSIONER SIDNEY LINDEN: He was given 7 lots of context. 8 MR. HARVEY STROSBERG: They're not -- 9 they're not, in my submission, it's not appropriate to 10 put the question in the manner in which it was put by 11 dealing with it from the book. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 So we've got the question now and let's see if the -- 14 MR. JULIAN FALCONER: Thanks. 15 COMMISSIONER SIDNEY LINDEN: -- witness 16 can answer the question. 17 18 CONTINUED BY MR. JULIAN FALCONER: 19 Q: Does the political reality that the 20 author refers to, was that something consistent with your 21 experience? 22 A: I don't know the answer to that. 23 Q: All right. 24 A: I, you know, as far as I -- I -- as 25 far as I was concerned my deputy was loyal, first and
901 foremost, to me. And one of the things that my Deputy, 2 and I'm -- I'm talking now about Mr. Taman. Subsequent - 3 - my subsequent deputy would have been the same, but Mr. 4 Taman was particularly good at ensuring when -- or in -- 5 in -- in -- in what I think he would have described as 6 protecting his Minister. 7 And, you know, for instance, if you -- if 8 you take a look at all the events surrounding Ipperwash, 9 I don't think there was any -- any meeting that I went to 10 or any involvement I had without the involvement of Mr. 11 Taman. 12 And -- and -- and I think that that was 13 quite deliberate. So I -- I -- you would have to ask him 14 whether his first loyalty was -- was to -- to the Premier 15 or to the Minister. I -- I think that's a question 16 appropriately -- or more appropriately for the -- for 17 people who work as Deputy Ministers. 18 COMMISSIONER SIDNEY LINDEN: And Mr. 19 Ibbitson's views are not evidence in this. 20 MR. JULIAN FALCONER: No. I -- I -- and 21 I -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. JULIAN FALCONER: -- didn't mean to 24 suggest they were yet. 25 COMMISSIONER SIDNEY LINDEN: Okay. Let's
911 move on. 2 MR. JULIAN FALCONER: At page 101, and 3 Mr. Commissioner all I did was hand it up because I found 4 the extra copy for you, Mr. Commissioner. I've stickied 5 it. And the only reason I'm asking if you could turn it 6 up to follow is because I have another question further 7 on. So it's at page 101. 8 Mr. Commissioner, so you know, I have been 9 reading to the witness the last main paragraph that 10 starts, "one of Mike Harris' first acts," that's where I 11 was. 12 And -- and now I'm continuing with you, 13 sir. 14 15 CONTINUED BY MR. JULIAN FALCONER: 16 Q: It states at the last four (4) lines: 17 "Ministers should be under no illusion 18 that they were sovereign within their 19 own departments. [quote] 'Reader is 20 well known to you, he told them. And 21 through her you will communicate with 22 me on a routine basis. Your reports to 23 her will be for me only and will be 24 dealt with in confidence.' [closed 25 quotes] Not even Harris' most powerful
921 Ministers would know what their 2 Deputies were telling the Premier." 3 What I want to know, sir, first of all, 4 was that something consistent with your experience or 5 inconsistent with your experience? 6 A: Well, I -- what -- what I would have 7 known was very much that the -- was that -- that the 8 deputies would be reporting to Rita Burak. She was the 9 Secretary of Cabinet. She was their immediate, I 10 suppose, superior or -- or she was -- she was the boss. 11 And -- and I would have known, of course, 12 that they would be reporting to her and that she would 13 deal with those issues with the Premier. So that's not a 14 -- a surprise to me and I think that's probably the way 15 government continues to work and has worked for a long, 16 long time. 17 Q: Thank you, sir. Now, I want to 18 direct your attention to some evidence and I do have -- I 19 made a copy for the witness and bearing with me a copy 20 for you, Mr. Commissioner. And the first passage I'm 21 going to refer to is -- it's evidence by Mr. Taman. 22 And the first passage I'm going to refer 23 to is dated November 16th, 2005 with the assistance of 24 counsel to try and track it down. I will give a page 25 number very quickly but I'm trying to move us all along.
931 (BRIEF PAUSE) 2 3 A: Thank you. 4 Q: And if counsel could have attention 5 to -- at page 92 of the transcripts of November 16th, 6 2005. 7 A: Help me with where the page number -- 8 oh, I see where the page numbers are. All right. 9 Q: And I -- I'm sorry, Mr. Harnick, the 10 way it's set up you -- you end up with printout page 11 numbers at the top, but ignore those and look only for 12 the numbers referred to in the mid-passage. 13 A: Yeah. Yes. So it says, "parte 14 injunction". 15 Q: That's right. 16 A: Yes. 17 Q: And now, Commission Counsel documents 18 that you've had -- do you -- do you have those binders in 19 front of you? 20 Just keep that open right there. 21 A: Yes. 22 Q: But do you have -- did -- did you 23 hear me? I -- I want you to keep that open right there. 24 A: Yes. 25 Q: And when I said, "I want you," you --
941 you knew I -- that was a direction, right? You -- you 2 got that that was a direction? 3 COMMISSIONER SIDNEY LINDEN: That's not 4 necessary, Mr. Falconer. 5 MR. JULIAN FALCONER: Thank you. I just 6 -- I was -- I've been waiting all morning -- 7 COMMISSIONER SIDNEY LINDEN: Carry on. 8 THE WITNESS: I'm I not being responsive? 9 MR. JULIAN FALCONER: No, you are, sir. 10 You are. 11 THE WITNESS: I'm sorry -- 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: At page 92 -- page 92 of the 15 transcript? 16 A: Yes. 17 Q: If you turn to Tab 36 you should have 18 the note by Julie Jai of a conversation with Ron Fox. Do 19 you have that? 20 A: Yes. 21 Q: And it's this note that Mr. Taman's 22 addressing in his questions that I'm asking him. 23 MR. DONALD WORME: P-515, 515. 24 MR. JULIAN FALCONER: And -- I appreciate 25 that My Friend, indicating that for the record. And I
951 spoke over him so if he could indicate it again? 2 3 CONTINUED BY MR. JULIAN FALCONER: 4 Q: For the record the document I'm 5 referring to which appears at Tab 36 of Commission -- 6 Commission Counsel's document is Document Number 3001088 7 being Exhibit P-515. 8 9 (BRIEF PAUSE) 10 11 Q: Now, the note that I took Mr. Taman 12 through was a note of a conversation Julie Jai had 13 purportedly after the dining room meeting, all right? Do 14 you see that? 15 And -- and I'll read it to you. It's 16 September 6th, 1995: 17 "Ron Fox: Tim has asked for [and it's} 18 SO [and we've heard, someone] from OPP 19 to give viva voce evidence before judge 20 [and it says] J today in Sarnia. Now 21 OPP Commissioner is involved. 22 Decisions will be made at his level. 23 He was called into Cabinet [and it's 24 referring to Mr. Fox, all right?] 25 Larry Taman was also there and was
961 eloquent. He cautioned about rushing 2 in with ex parte injunction and can't 3 interfere with police discretion, but 4 Premier and Hodgson came out strong. 5 Larry, Elaine Todres were at Cabinet. 6 Ron was there for part of discussion. 7 Decision to go ex parte appeared to 8 have already been made." 9 Now, they're, and we've heard this in 10 evidence, referring in essence to Ron Fox's view of the 11 dining room, all right, sir? 12 COMMISSIONER SIDNEY LINDEN: According to 13 Julie Jai's notes; you have to put that in too. 14 MR. JULIAN FALCONER: That's right. 15 According to Julie Jai's note. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Do you understand? I'm just trying 19 to give you context, that's all. 20 A: Yes. 21 Q: All right. Mr. Taman, when I asked 22 him about this -- and that's why you've got this page of 23 the transcript open and you can keep that note open as 24 well please? 25 And -- and above page 92, this is Julie
971 Jai's note of a conversation she had with Ron Fox 2 following the dining room meeting, right? And it says, 3 quote: 4 "'He cautioned about rushing in with ex 5 parte injunction.' [Close quotes] Right 6 after that part you liked about being 7 eloquent. 8 A: Yes. 9 Q: Right. Is that -- is Ron Fox's 10 account to Julie Jai consistent with 11 what you recall happened at the 12 meeting? 13 A: Yes. 14 Q: So, you actually cautioned about 15 rushing in with an ex parte injunction? 16 A: Yes." 17 At the top I'm going to take you to the 18 next question. 19 "Q: And in meeting with Mike Harris 20 personally on that date what you did at 21 that meeting was to caution him about 22 rushing in to seek an ex parte 23 injunction. 24 A: Yes." 25 Now, first of all, is Mr. Taman's
981 recollection of the dining room meeting and -- and what 2 he cautioned about an ex parte injunction consistent with 3 your recollection? 4 A: I -- I don't remember discussions 5 about, per se, ex parte. I know that Mr. Taman spoke to 6 the issue; I did not and -- and I don't recall -- 7 Q: So given -- 8 A: -- discussions about ex parte 9 injunctions. 10 Q: -- given the memory that you've 11 candidly described to us you're not in a position to 12 dispute what Mr. Taman said? 13 A: That -- that he -- that he cautioned 14 about -- no, I -- I wouldn't dispute that. 15 Q: All right. Thank you. 16 A: That's his recollection. 17 Q: Well, more than just it being his -- 18 I want to know if you have a recollection that opposes 19 his? 20 A: Not -- not in that regard, no. 21 Q: Thank you. In -- 22 A: I don't have a recollection of that. 23 Q: Now, in addition to that, Mr. Taman 24 states -- and this is at page 66. So, in your materials, 25 Mr. Harnick, if you simply flip backwards of the same
991 date, November 16th, 2005. If you simply flip backwards, 2 you should see a sixty-seven (67) and then you look right 3 above that. Do you have that? 4 A: Yes. 5 Q: All right. 6 MR. DERRY MILLAR: Sixty-seven (67)? 7 MR. JULIAN FALCONER: Yes, page 67, but 8 I'm at 66. But the way his passages appear, I've given 9 him 67, but we're looking at page 66, all right? Right 10 above it. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: And I'm at line 13. and that's on 14 page 66. 15 A: And that's on page...? 16 Q: Sixty-six (66). 17 A: Yes. 18 Q: So, that's above 67, and it starts, 19 "Question: And the idea"; do you have that? 20 A: Yes. 21 Q: "Q: And the idea was not the 22 Government was doing X, but the Premier 23 had, in essence, overridden the 24 position that the Solicitor General, 25 the Attorney General and their Deputies
1001 had agreed to was the right direction; 2 that essentially is what happened? 3 A: No, I don't think that I can say 4 that is what happened. In the first 5 place, the Premier, for practical 6 purposes in this kind of setting is the 7 Government. So, to somehow suggest 8 there is a bifurcation there is 9 misleading. And secondly, I don't know 10 what advice was taking place through 11 private conversations with the Premier. 12 I only know what was being said when I 13 was there." 14 But, I'm asking you, sir, is Mr. Taman's 15 evidence that in this setting, for all practical 16 purposes, Mike Harris is the Government; is that 17 accurate? 18 A: I -- I think I said that yesterday 19 when I said, in terms of the representations that were 20 being made, they were being made to -- to Mr. Harris, 21 because he was the -- the person that you really -- that 22 -- that certainly I, and I believe Mr. Taman -- I agree 23 with Mr. Taman, that had to be convinced. 24 25 (BRIEF PAUSE)
1011 2 Q: Mr. Taman refers to, at page 100 -- 3 COMMISSIONER SIDNEY LINDEN: I want to 4 remind you of the passage of time. 5 MR. JULIAN FALCONER: Yes. And-- 6 COMMISSIONER SIDNEY LINDEN: I know I 7 don't want to interrupt in the middle of a question, but 8 I want to remind you that you've now been cross-examining 9 for two (2) hours. 10 MR. JULIAN FALCONER: And I'm -- I'm -- 11 COMMISSIONER SIDNEY LINDEN: That's fine, 12 just that I'd -- 13 MR. JULIAN FALCONER: -- close to the 14 end, thanks. 15 COMMISSIONER SIDNEY LINDEN: -- like you 16 to bring it to a conclusion as quickly as you can. 17 MR. JULIAN FALCONER: Thank you. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: Mr. Taman says at page 100, and if 21 you go to 100 and then you look right above you'll see my 22 question: 23 "Q: I'm going to suggest to you that 24 whatever direction -- new direction you 25 were to take as a result of the Harnick
1021 direction you received from the Premier 2 in the morning, before 9:30, that 3 direction took on a whole new 4 acceleration following the dining room 5 meeting? 6 A: I don't think that's right. I 7 think that what happened at the dining 8 room meeting were two (2) things. 1) 9 was that I wanted to make sure that the 10 Premier really understood what was 11 involved in doing what he was asking. 12 And it was in that context that there 13 was a discussion about ex parte or not 14 ex parte injunction. And number 2) the 15 Premier made it perfectly clear what he 16 wanted to happen, and I came out of the 17 meeting with what I thought was a clear 18 instruction that I had received not 19 once, but twice." 20 Now, Mr. Taman -- let me ask you first of 21 all, does that accord with your recollection of the 22 events? 23 A: Well -- 24 Q: And to be fair to you, sir, this 25 seems to refer to a meeting with you, that that principle
1031 or premise of a meeting with you other than the briefing? 2 A: I -- I can tell you again, that I 3 never spoke to or met with the Premier. So, I don't know 4 where that came from, but I was involved at three (3) 5 times. 6 I had a meeting with Mr. Taman and Ms. 7 Todres very briefly on the 5th. I was briefed on the 8 morning of the 6th, and I went to the diningroom meeting 9 on the afternoon. 10 So, I -- I don't -- I never spoke with the 11 Premier, nor saw the Premier, nor did I receive any 12 instruction from him or from anyone in his office. The 13 first time I saw the Premier was in the dining room. 14 Q: Okay. You'll note Mr. Taman's -- 15 you'll note Mr. Taman's evidence refers to, firstly, a 16 notion that the Premier, quote: 17 "In the dining room [quote] 'made it 18 perfectly clear what he wanted to 19 happen', and I came out of the meeting 20 with what I thought was [quote] 'A 21 clear instruction'." Close quotes. 22 Do see that? 23 A: Yes. 24 Q: All right. Could you turn please to 25 Tab 35, the previous tab of Commission Counsel documents,
1041 so just flip one (1) tab back. And go in some four (4) 2 pages to what is marked as one-o-nine (109). And this 3 document for the record is Document Number 1012540, being 4 Exhibit P-940. 5 And it's the note -- the note that you 6 were asked to be -- to interpret by Commission counsel. 7 If you flip in four (4) pages you'll find Mr. Taman's -- 8 I'm sorry, five (5) pages, you'll find Mr. Taman's note. 9 It has a one-o-nine (109) in the top right corner? 10 A: Yes. 11 Q: All right. Do you see the reference 12 under ONAS meeting re. Ipperwash? And then it says: 13 "AG instructed by P that he desires 14 removal within twenty-four (24) hours. 15 Instruction to seek injunction." 16 Now, if Mr. Taman was right that the 17 Premier was the Government in this setting, and if he's 18 right that after the dining room meeting he had this 19 instruction, you'd agree with me that based on the tenure 20 of the dining room meeting that you heard, that this note 21 is entirely consistent with Mr. Taman having made the 22 note at the dining room meeting in terms of the sentiment 23 expressed? 24 A: Is your -- just so I understand, 25 sorry --
1051 Q: And I'll repeat my question because I 2 see you looking at your counsel and I just want to -- 3 A: No. I just saw him getting up. 4 Q: I -- I don't want to befuddle you. I 5 don't want to -- 6 COMMISSIONER SIDNEY LINDEN: You want to 7 make the question clear so -- 8 MR. JULIAN FALCONER: Yeah, that's why I 9 don't -- that's why -- and that's fair. Like I believe 10 that the question was a bit muddled, so I'll start it 11 over. 12 COMMISSIONER SIDNEY LINDEN: Mr. 13 Strosberg, do you have another objection, or was it just 14 that the question wasn't clear? 15 MR. HARVEY STROSBERG: Well, I -- 16 COMMISSIONER SIDNEY LINDEN: Let's see if 17 he can ask a clear question. Yes. 18 MR. JULIAN FALCONER: That's fine. And I 19 am doing my best and I'm almost through this area. 20 COMMISSIONER SIDNEY LINDEN: I'm not 21 saying -- move on. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: Let's carry
1061 on. 2 MR. JULIAN FALCONER: Well, you know -- 3 COMMISSIONER SIDNEY LINDEN: Let's carry 4 on, Mr. Falconer. 5 MR. JULIAN FALCONER: Thank you. 6 COMMISSIONER SIDNEY LINDEN: I don't want 7 to get sidetracked. 8 MR. JULIAN FALCONER: No, I know and I 9 get sidetracked. 10 COMMISSIONER SIDNEY LINDEN: No, let's 11 move forward. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: What I'm asking you, sir, is -- is 15 obviously you didn't make this note, but you were at the 16 dining room meeting -- 17 A: Well just -- just let me make sure I 18 understand your question. 19 Q: Well, I -- no, no I have to ask the 20 question again. 21 A: Well, no I want to make sure I 22 understand the question. 23 COMMISSIONER SIDNEY LINDEN: The witness 24 is trying to understand it so -- 25 MR. JULIAN FALCONER: I haven't asked it
1071 yet. So, even though he's trying to help in this -- in 2 terms of it, I've been asked to re-ask the question, so 3 either I re-ask the question or we go around in circles. 4 COMMISSIONER SIDNEY LINDEN: Let's hear 5 the question and then decide where we are. Carry on. 6 7 CONTINUED BY MR. JULIAN FALCONER: 8 Q: Thank you. And I -- I appreciate 9 your efforts, Mr. Harnick. I do. 10 I accept, and the evidence is clear, that 11 first of all you didn't make this note, and that second 12 of all you reject Mr. Taman's explanation for how the 13 note was made. All of that is on the record. 14 What, sir, I'm asking you, is the 15 sentiment reflected in this note, the spirit of the 16 instruction reflected in this note, that would have been 17 consistent with what you heard as the Premier's 18 instruction at the dining room meeting, correct? 19 A: Well are you putting it to me now 20 that this note was a note that Mr. Taman made at the 21 dining room meeting? 22 Q: I'm not allowed to do that. So, I'm 23 not doing it. What I'm doing -- 24 A: Well then I -- I don't understand 25 your question --
1081 Q: Well, I understand. 2 A: -- because that's what you were 3 asking me in your first go around. 4 Q: No I under -- I understand why you 5 think that, sir, but I as a technician have to do this 6 right. I can't say to you Larry Taman made that note at 7 the dining room meeting, because first of all, unless you 8 watched him pen the note, you can't testify in that area. 9 What I'm asking you: Is the sentiment 10 expressed, the instruction reflected in that note, 11 consistent with the instruction you received and the 12 group received from the Premier at the dining room 13 meeting? 14 And that, Mr. Commissioner, we can argue 15 about it, but all I'm asking is we've heard that 16 instruction was given, he's recorded an instruction. I 17 just want to know if it's consistent. 18 COMMISSIONER SIDNEY LINDEN: I'm not sure 19 that the word 'instruction' received at the dining room 20 is something that is in evidence. 21 MR. JULIAN FALCONER: No. That -- that's 22 Mr. Taman. I'll go back to the passage then -- 23 COMMISSIONER SIDNEY LINDEN: Yes. But, I 24 mean, you're saying that is consistent with instruction 25 at the dining room.
1091 MR. JULIAN FALCONER: Well, Mr. Taman 2 testified: 3 "The Premier made it perfectly clear 4 what he wanted to happen and I came out 5 of the meeting with what I thought was 6 a clear instruction." 7 That's Mr. Taman from the Premier. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 I understand that. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: And then I go back to note that, by 13 coincidence, happens to refer to an instruction, but 14 that's not my business to do with this witness. My 15 business is to simply ask him: Is the spirit of the 16 instruction expressed in this note, quote: 17 "AG instructed by P that he desires 18 removal within twenty-four (24) hours. 19 Instruction to seek injunction." 20 Is the spirit of this instruction 21 consistent with what you heard at the dining room 22 meeting? 23 A: What I heard at the dining room 24 meeting was that the Premier agreed with representations 25 that the best way to proceed would be to seek an
1101 injunction and -- 2 COMMISSIONER SIDNEY LINDEN: He has said 3 that on a number of occasions. 4 MR. JULIAN FALCONER: But, if the witness 5 is -- 6 COMMISSIONER SIDNEY LINDEN: He's 7 answering the question. 8 MR. JULIAN FALCONER: No, but if my 9 question is not repetitive but the witness' answer is 10 repetitive, I can't control that. So I'm -- 11 COMMISSIONER SIDNEY LINDEN: Well, the 12 witness is answering the questions -- 13 MR. JULIAN FALCONER: -- just going to 14 keep moving. 15 COMMISSIONER SIDNEY LINDEN: -- to the 16 best of his ability. 17 MR. JULIAN FALCONER: No and that's fair. 18 And I'm not saying he's not. But, in fairness, Mr. 19 Commissioner, this is clearly a completely different 20 question. He may have the same answer from something 21 else. But to be fair to me, this is a completely 22 different question. No one has asked it. And what I'm 23 trying to do is move quickly. 24 25 CONTINUED BY MR. JULIAN FALCONER:
1111 Q: So is that your answer? 2 A: My answer is that we were given an 3 instruction to seek an injunction as soon as possible. 4 Q: All right. Now the term, "as soon as 5 possible," Mr. Harris testified on discoveries, it's a 6 one-paragrapher and I want to find out if it means the 7 same thing to you as it did to him. When he was asked at 8 page 247 of the discoveries dated -- 247 of the 9 discoveries dated -- I apologize, I'll find the date in a 10 moment. 11 The 22nd day of November, 2001, it's one- 12 paragraph, if I can finish the question because he's 13 asked what he meant by "as soon as possible" at 14 discoveries and I want to find out if the Premier's 15 definition of "as soon as possible" was consistent with 16 Mr. Harnick's understanding of his instruction, that's 17 all. 18 MR. PETER DOWNARD: We apparently got no 19 notice that this document -- this transcript would be 20 referred to -- 21 COMMISSIONER SIDNEY LINDEN: I don't know 22 what it is -- 23 MR. PETER DOWNARD: -- and so I'm sitting 24 here and -- I don't -- I can see the page in front of me 25 now but --
1121 MR. JULIAN FALCONER: It's one -- it's 2 one paragraph. 3 MR. PETER DOWNARD: Well, that's fine. 4 That's fine. But one paragraph in a long transcript 5 taken out of context could be a problem. Maybe it will 6 be. Maybe it won't be. I'm not that concerned about the 7 substance -- 8 COMMISSIONER SIDNEY LINDEN: You just 9 haven't seen or -- 10 MR. PETER DOWNARD: I just haven't -- 11 COMMISSIONER SIDNEY LINDEN: -- had any 12 prior notice. 13 MR. PETER DOWNARD: I hadn't got prior 14 notice so I haven't got the document in front of me so I 15 can -- 16 MR. JULIAN FALCONER: Well, in fairness, 17 notice was given by counsel for the George family about 18 this document. So if Mr. -- if Mr. -- that doesn't -- 19 that doesn't cure the problem. But I do want you to 20 know, Mr. Commissioner, that notice was given about this 21 document in the context of this examination. 22 So, the issue of prejudice is a live one 23 because if Mr. Downard -- Mr. Downard got notice of the 24 document. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
1131 Yeah, I see -- 2 MR. DONALD WORME: I was simply going to 3 -- going to remind Mr. Falconer that this question had 4 been put to the witness and perhaps without having to -- 5 to put this document to him you can simply ask what his 6 understanding of the phrase, that I think that he's 7 driving at, means. And I think he can leave the rest to 8 argument. 9 COMMISSIONER SIDNEY LINDEN: Why don't 10 you just do that? Why don't you just ask him what his 11 understanding was? 12 MR. JULIAN FALCONER: Well, I -- I'll 13 explain right now why I can't. Because I want to avail 14 Mr. Worme and I want to keep this moving and I want to 15 get along because I'm at the end of my time and so I 16 respect that I've got to bring this to a close. 17 Mr. Commissioner, the document number I'm 18 referring to, which was given -- which was the subject of 19 notice in respect of the examination of this witness, the 20 document number I'm referring to is document number 21 11000017. 11000017. 22 COMMISSIONER SIDNEY LINDEN: Is it in our 23 binder? 24 MR. DONALD WORME: No, it is not in our 25 binder, Commissioner.
1141 COMMISSIONER SIDNEY LINDEN: It's in the 2 database? 3 MR. JULIAN FALCONER: And I'm looking at 4 one paragraph at page 247. 5 COMMISSIONER SIDNEY LINDEN: And this is 6 the examination for discovery of -- 7 MR. JULIAN FALCONER: Of Mr. Harris. 8 COMMISSIONER SIDNEY LINDEN: -- former 9 Premier Harris? 10 MR. JULIAN FALCONER: Yes. Dated 11 November 22nd, 2001. 12 COMMISSIONER SIDNEY LINDEN: Can you see 13 that, Mr. Harnick? Well, let's move it quickly but when 14 he stops... 15 THE WITNESS: I can't read that quick. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: And I'm at line 6 and I have one (1) 19 question and one (1) answer to ask you about at line 6 at 20 page 247. One (1) more page. Right there. Question 21 632: 22 "Question: [and this is Mr. 23 Klippenstein] 24 Is it accurate to say, as these notes 25 do, that at the time of that meeting
1151 you did, in fact, desire a removal of 2 the protesters within twenty-four (24) 3 hours?" 4 Mr. Harris answers: 5 "No. I think it's more accurate to 6 say, and the only time I recall twenty- 7 four (24) hours was with reference to 8 the injunction. It would be accurate 9 to say that as soon as possible, if 10 that could be one (1) minute, if that 11 could have been yesterday, as soon as 12 possible is an expression that has been 13 used to reflect, you know, so that I 14 think it's consistent with my view that 15 this occupation carried on for a long 16 period of time, and I think I have 17 expressed to you the reasons why that 18 was." 19 When Mr. Har -- now, Mr. Harnick, my 20 question to you is: When Mr. Harris says that as far as 21 he was concerned, as soon as possible could be one (1) 22 minute, could have been yesterday, that was your 23 understanding of his desire in terms of the definition of 24 as soon as possible; is that fair? 25
1161 OBJ MR. PETER DOWNARD: It's a -- it's a 2 process objection. It's the same old bootstrapping. 3 It's the speech and the bootstrapping. I don't have any 4 difficulty with the substance of it. The substantial 5 question could be put without spending time on the 6 transcript. 7 COMMISSIONER SIDNEY LINDEN: All right. 8 The time has been spent the question has been asked, 9 let's get an answer and move on. 10 MR. JULIAN FALCONER: Thank you. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Could you answer my question? 14 A: Is -- is my understanding of as soon 15 as possible the same as his? 16 Q: Yes? 17 A: No, it isn't. My understanding is 18 that we had an instruction to get an injunction as soon 19 as possible. That it was left to the people who were 20 going to get the injunction as to how they were going to 21 deal with it. They knew what issues they faced in terms 22 of putting together either affidavits or viva voce 23 evidence, finding a judge, filing the application, seeing 24 whether an application could be served, and all that -- 25 and all of those technical things were left to them to
1171 do. 2 And I -- I wouldn't certainly believe that 3 you would -- you would -- that you put a time limit on 4 that. As soon as possible is, they were doing the work 5 in the field and they would determine what as soon as 6 possible meant. 7 Q: Fair enough, thank you. Now you 8 testified before in answers to other questions, you 9 didn't hear the words twenty-four (24) hours at the 10 dining room meeting, correct? 11 A: I -- I did not. 12 Q: Right. You noticed that the words, 13 twenty-four (24) hours, appears in the note done by Mr. 14 Taman; yes? 15 A: Yes. 16 Q: And I'm going to put to you, sir, 17 that Dr. Todres will testify in reference to the dining 18 room meeting, that the Premier appeared agitated and 19 annoyed and commented that he wanted the situation 20 resolved, quote: 21 "Within twenty-four (24) hours." Close 22 quotes. 23 That's Dr. Todres's anticipated evidence 24 that he quotes the Premier actually referred to twenty- 25 four (24) hours.
1181 Does that assist your recollection? 2 A: I -- I -- when I tell you I can't 3 recall, I can't recall. And I'm -- I'm not -- I'm not 4 disputing -- 5 Q: Yes, sorry, sir. 6 A: -- I'm not disputing what other 7 people's recollections might be when I don't have one. 8 Q: All right. So you're not in a 9 position to dispute -- 10 A: But -- 11 Q: -- what Dr. Todres says? 12 A: -- but I -- let me finish. 13 When I left that meeting, I was under the 14 absolute belief that we were to seek an injunction, we 15 were to do it as soon as possible, and as soon as 16 possible was to be defined by the people who'd be doing 17 the work to obtain the injunction. 18 COMMISSIONER SIDNEY LINDEN: Now, that's 19 pretty clear to me, Mr. Falconer. 20 MR. JULIAN FALCONER: No, that's fine, 21 I'm moving on -- 22 COMMISSIONER SIDNEY LINDEN: Are you 23 finished now? But, I mean you're way, way past your 24 time, and you keep -- 25 MR. JULIAN FALCONER: Thanks, and I'm --
1191 COMMISSIONER SIDNEY LINDEN: -- bringing 2 up new areas, so I'm looking at you -- 3 MR. JULIAN FALCONER: -- well, I 4 understand and I'm moving -- 5 COMMISSIONER SIDNEY LINDEN: -- to wind 6 it down. 7 MR. JULIAN FALCONER: Well that's fair, 8 Mr. Commissioner, but -- 9 COMMISSIONER SIDNEY LINDEN: You're 10 bringing up new areas, that's all. 11 MR. JULIAN FALCONER: -- to be -- to be 12 fair to counsel, that what has been now termed the 13 bombshell was dropped yesterday morning. 14 COMMISSIONER SIDNEY LINDEN: I'm not 15 interested in hearing your speech -- 16 MR. JULIAN FALCONER: And some of us -- 17 COMMISSIONER SIDNEY LINDEN: -- I just 18 want you to finish -- 19 MR. JULIAN FALCONER: All right, no, 20 but -- 21 COMMISSIONER SIDNEY LINDEN: -- your 22 examination. 23 MR. JULIAN FALCONER: Fair enough, but 24 I'm -- the difficulty I had in preparation is I didn't 25 know in the -- in the formal sense about this, so I just
1201 want to, in the most important of terms -- 2 COMMISSIONER SIDNEY LINDEN: Are you 3 almost finished now, I just -- 4 MR. JULIAN FALCONER: Yes, yes -- 5 COMMISSIONER SIDNEY LINDEN: -- want to 6 make sure that you -- 7 MR. JULIAN FALCONER: -- I'm almost 8 finished. 9 COMMISSIONER SIDNEY LINDEN: -- have the 10 chance to do what you need to do -- 11 MR. JULIAN FALCONER: Thank you. 12 COMMISSIONER SIDNEY LINDEN: -- but you 13 need to do it. 14 MR. JULIAN FALCONER: Thank you. The 15 current -- 16 COMMISSIONER SIDNEY LINDEN: I'm sorry. 17 Yes, Mr. Downard...? 18 MR. PETER DOWNARD: I don't wish to take 19 further time on this now. 20 COMMISSIONER SIDNEY LINDEN: I'm sorry, 21 you don't wish to make argument now? 22 MR. PETER DOWNARD: I don't wish to make 23 -- I don't wish to make argument or spend much more time 24 on this right now. But, I simply want to go on record as 25 saying that this talk about the bombshell and other sorts
1211 of behaviour we've seen, and speeches -- 2 MR. JULIAN FALCONER: Well, I withdraw 3 the reference to the bombshell, but I also resent that 4 every time counsel objects he chooses to personalize it 5 to me. 6 COMMISSIONER SIDNEY LINDEN: He does not, 7 and I've had enough of this with all of you. Now, let's 8 stop this. There is no need to refer to a bombshell, 9 there's no need for this to occur. 10 MR. DERRY MILLAR: And with respect, 11 Commissioner, the -- the -- Mr. Falconer asked for some 12 time, we gave him the time overnight -- 13 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 14 MR. DERRY MILLAR: -- and this kind of 15 editorialism, I -- I really think we shouldn't do it. 16 COMMISSIONER SIDNEY LINDEN: Long after 17 the time has expired. Now let's move on -- 18 MR. JULIAN FALCONER: Thank you. 19 COMMISSIONER SIDNEY LINDEN: -- and see 20 if you can bring it to a conclusion. 21 22 CONTINUED MR. JULIAN FALCONER: 23 Q: Can you assist, Mr. Harnick, have you 24 been in contact with Premier Harris in the last two (2) 25 years, in terms of conversations about the Ipperwash
1221 case? 2 A: I have not had any conversations with 3 Mr. Harris about the Ipperwash case. I see Mr. Harris 4 infrequently. We serve on a -- a public hospital board 5 together and I -- I can't recall the last time I would 6 have seen him there. But that would be roughly the only 7 contact I would have with him. 8 Q: So it's fair to say the agony of 9 decision-making that you referred us to yesterday, that 10 was not something you shared with Mr. Harris or the 11 process by which you came to a decision to reveal what 12 you revealed yesterday; that wasn't something you shared 13 with Mr. Harris? 14 A: That was not. That was me alone and 15 it was my own agony. 16 Q: And subsequent to your evidence 17 yesterday morning, have you spoken to Mr. Harris? 18 A: I have not. 19 Q: All right. Mr. Harnick, I want to 20 thank you for your patience, sir. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much, Mr. Falconer. I know it's taken a little 23 longer but I'm glad that you had an opportunity to 24 conclude it. 25 Now, I think we're going to take a short
1231 break now and then we're going to hear from Mr. 2 Rosenthal. Do you have a -- I'm sorry, somebody wanted 3 to say something? 4 Do you have a reasonable estimate as to 5 how long you might be? 6 MR. PETER ROSENTHAL: I had said an hour 7 and a half (1 1/2). 8 COMMISSIONER SIDNEY LINDEN: And that 9 you're not going to repeat any of the areas that have 10 already been gone into. 11 MR. PETER ROSENTHAL: I will try to bring 12 out the more useful questions, sir. 13 COMMISSIONER SIDNEY LINDEN: Let's take a 14 break. We'll take a short break. We'll take a break 15 until eleven o'clock and then we'll see if we can finish 16 by 12:30. 17 THE REGISTRAR: This Inquiry will recess 18 for fifteen (15) minutes. 19 20 --- Upon recessing at 10:51 a.m. 21 --- Upon resuming at 11:06 a.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed. Please be seated. 25
1241 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 4 Rosenthal...? 5 MR. PETER ROSENTHAL: Good morning, Mr. 6 Commissioner. May -- may I begin by thanking you and 7 your Counsel and other Counsel for your indulgence in 8 allowing me to go out of order. Thank you very much. 9 10 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 11 Q: And may I begin by saying good 12 morning to you, sir. 13 A: Good morning. 14 Q: My name is Peter Rosenthal, I'm 15 Counsel for some of the Stoney Point people of the name 16 Aazhoodena and George Family Group. 17 And I should like to begin, similar to the 18 way Mr. Scullion began yesterday, in thanking you for 19 your courage and integrity in reporting the Premier's 20 statement. I do very much understand how difficult that 21 must have been for you, and I do genuinely appreciate 22 that, sir. 23 A: Thank you. 24 Q: Now, I wanted to clarify some of the 25 surrounding circumstances a little bit further, if I may.
1251 And I presume, given the agonizing decision, you would 2 not have testified to that effect if you were not very 3 sure that you were giving accurate testimony; is that 4 fair, sir? 5 A: Correct. I came here to tell the 6 truth. 7 Q: Thank you. Now, a certain image 8 formed in my mind of a scene in the dining room when you 9 described that several times yesterday, and I would like 10 to put that to you and see if that's in accordance with 11 your actual recollection. 12 I gather that this was at the very 13 beginning of the meeting and I assume that people would 14 have been talking, as people do when they gather for a 15 meeting, sort of small talk among themselves, and then it 16 was interrupted by Mr. Harris making this remark; is 17 that...? 18 A: No. I -- I was probably -- 19 COMMISSIONER SIDNEY LINDEN: Just before 20 you answer the question, I just want to make a comment 21 just before you answer it. I know, Mr. Rosenthal, you 22 weren't here yesterday but I also know that you've been 23 watching carefully on the -- 24 MR. PETER ROSENTHAL: Absolutely, sir. 25 COMMISSIONER SIDNEY LINDEN: -- on the
1261 web cast, and I'd just ask you to please not repeat or 2 not go over matters that have been dealt with in great 3 detail, so -- 4 MR. PETER ROSENTHAL: Yes, sir. There 5 are certain particular points about this that I'm going 6 to go for that haven't been firmly established, and in 7 particular the one that I just asked. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 MR. PETER ROSENTHAL: So, may I continue 10 then, sir? 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: That -- was it before the meeting 15 actually began, to your recollection, or -- 16 A: As I said yesterday, I was probably 17 one of the -- the last people to enter the room. 18 Q: Yes. 19 A: And one of the -- the first thing I 20 heard was the remark that the Premier made as I was 21 taking my seat, or as I had just taken my seat, and I did 22 not know what it was in response to. 23 Q: Yes. I understood that, sir, but I 24 had thought that -- I gleaned from your evidence that 25 upon that remark being made there appeared to be a
1271 silence that -- 2 A: Yes. 3 Q: Is that correct? 4 A: That's correct. 5 Q: And you expressed your shock at it. 6 Did you feel -- did you feel there was sort of a shock in 7 the room about that remark and it was a shocked silence? 8 COMMISSIONER SIDNEY LINDEN: I believe, 9 Mr. Rosenthal, again, with all due respect, that these 10 matters were canvassed in previous examinations and so 11 far all of the questions you've asked have been asked. 12 I believe, now I may be wrong -- 13 MR. PETER ROSENTHAL: With respect, sir, 14 I don't believe that's exactly so. 15 COMMISSIONER SIDNEY LINDEN: All right. 16 MR. PETER ROSENTHAL: But I'll move to a 17 slightly different aspect of it. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: You -- you heard Mr. Harris' voice 21 saying this. You were quite familiar with Mr. Harris' 22 voice by September of 1995; is that correct? 23 A: I -- I said yesterday that I -- that 24 I believed it was Mr. Harris' voice. 25 Q: Are you absolutely sure it was Mr.
1281 Harris' voice? 2 A: I am. 3 Q: Because one gathers from some of the 4 cross-examination there may be evidence that someone else 5 made a similar remark, and if so, that would have been in 6 addition to the remark that you heard from Mr. Harris; is 7 that fair? 8 A: Well, I mean that's -- I -- I didn't 9 hear a similar remark. 10 Q: You didn't hear any other remarks? 11 A: I didn't hear another remark made of 12 -- of that nature so I -- I can't answer that question. 13 Q: No, but the remark that you heard was 14 definitely, in your understanding, in Mr. Harris' voice? 15 A: I -- I said that. 16 Q: Yes. Now, counsel for Mr. Harris 17 asked you if Mr. Harris' stating that, that he wanted the 18 fucking Indians out of the Park, could have been meant to 19 be a private comment to an individual and you said you 20 weren't sure; is that correct? 21 A: That's correct. 22 Q: But in any event, it was certainly 23 loud enough that it was clearly audible throughout the 24 room, in your estimate? 25 A: That's correct.
1291 2 (BRIEF PAUSE) 3 4 Q: Now, you frankly admitted to Mr. 5 Falconer earlier today that your declining to acknowledge 6 that statement in the legislature was at least partially 7 due to your friendship and respect of Mr. Harris, 8 correct? 9 A: Well, it's a very different forum 10 than the forum we are in today, it's a highly politically 11 charged forum. 12 Q: Yes. 13 A: And I'm under oath and I came here to 14 tell the truth and I -- I've done that to the best of my 15 ability. 16 Q: Yes, sir. Now, as you know I 17 informed your counsel and you were aware this morning 18 that I was going to ask you about a different forum and - 19 - thank you, sir. 20 May you please give a copy of -- to -- one 21 to the Commissioner and one to the Witness, Mr. Worme? 22 A: Thank you. 23 Q: And this is a -- a portion, sir, of 24 your examination-for-discovery with respect to the civil 25 suit in this matter and I understand that you were
1301 examined for discovery on September 24, 2001; is that 2 correct to your recollection, sir? 3 A: Yes. 4 Q: And I should like to ask you, first, 5 if you gave certain answers to certain questions at that 6 examination-for-discovery. And I'll be beginning at page 7 39 of the transcript; the first page that you have I 8 believe is page 38. 9 And going back further, and perhaps you 10 did this with your counsel this morning, it's clear that 11 what is being discussed is what we've called the dining 12 room meeting. 13 On page 39 you indicate you don't know who 14 called the meeting and so on. And beginning at line 21 15 question 153: 16 "Is it fair to say that the issue for 17 the meeting was the Ipperwash 18 situation? 19 You answered: 20 "Yes. 21 And that was pretty much the only issue 22 for the meeting." 23 Turning to the next page: 24 "Yes. 25 And can you describe how the meeting
1311 got started? [Question 155] 2 A: My recollection is that the 3 Premier would come in and sit down and 4 likely say something about where we -- 5 [sorry] where are we at here and people 6 would respond. 7 Q: Hmm hmm. And can you recall how 8 the discussion got started and what the 9 contents of the beginning of the 10 discussion were? 11 A: I have a recollection of people 12 that were there from likely Sol Gen and 13 MNR who basically advised what the 14 status of the occupation would have 15 been. 16 Q: Do you recall anything that they 17 said about the status of the 18 occupation? 19 A: Only that the Park had been 20 occupied by a number of people and 21 there really wasn't much more detail 22 that I can recollect. 23 Q: What happened after they had 24 advised on the status of the 25 occupation?
1321 A: The Premier remarked that once the 2 Park had been occupied there would be 3 no way to remove the occupiers and he 4 agreed, based on the recommendations 5 that other people had made, that the 6 best way to proceed would be to seek a 7 civil injunction." 8 And my first question to you, sir, about 9 what I've read to you is: Did you give those answers to 10 those questions at your examination-for-discovery in 11 September of 2001? 12 A: I did. 13 Q: And would you agree, sir, that the 14 question 155 at the top of page 40, "And can you describe 15 how the meeting got started?", would have, given what you 16 know, been more appropriately answered, as you answered 17 at this Inquiry, by the Premier stating, "I want those 18 fucking Indians out of the Park," right? 19 That should have been your answer to 20 question 155, sir? 21 A: Well... 22 23 (BRIEF PAUSE) 24 25 A: Certainly that was my answer that I
1331 gave yesterday and that's the answer. I don't know that 2 I took this question to be a specific question of what 3 did the Premier say. 4 Q: The answer you gave yesterday was the 5 truth, sir; is that right? 6 A: Yes, it was. 7 Q: And I would put it to you, sir, that 8 as you were being examined for discovery in September of 9 2001 you were clearly agonizing, as you've told us you've 10 agonized perhaps for ten (10) years, and you decided, at 11 that point, not to be forthcoming with a more correct 12 answer to question 155, sir? 13 MR. HARVEY STROSBERG: That -- that -- 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Strosberg...? 16 MR. HARVEY STROSBERG: With respect that 17 -- that -- that's not a proper question. The -- the -- 18 it was never a question that was specifically asked about 19 what the Premier said. This is not in contradiction with 20 what the witness has testified here. 21 To put this to him, to suggest a 22 contradiction, is wrong, in my submission. It wouldn't 23 be permitted for the purposes of impeaching the witness. 24 It's inconsistent with what counsel has said. 25 I don't know, he's congratulating him for
1341 telling the truth and now trying to impeach him. I don't 2 understand that. I don't understand the use of the 3 transcript for that. 4 And, in any event, the examiners did not 5 ask the question of what was it that was said by the 6 Premier when the Premier came in. That's different from 7 saying how did the -- how did the meeting get started? 8 It's a different question altogether. 9 COMMISSIONER SIDNEY LINDEN: The witness 10 already gave that answer. It's already -- 11 MR. HARVEY STROSBERG: In my -- in my 12 submission he should not be permitted to attempt to 13 impeach the witness. 14 COMMISSIONER SIDNEY LINDEN: The witness 15 has already given the answer that you've said that he did 16 not take the question asked at examination for discovery 17 in the same way. 18 So, what is your question? 19 MR. PETER ROSENTHAL: Yes, I forget the 20 question, sir. But may I respond to Mr. Strosberg's 21 comment. First off, I did sincerely congratulate the 22 witness on telling the truth at these proceedings. 23 And I wanted to emphasize that that was a 24 very agonizing decision and in my respectful submission 25 there is no contradiction between doing that and pointing
1351 out that he did not volunteer that information in 2 September of 2001. 3 And I wish to continue to explore that 4 briefly, if I may, sir. 5 MR. HARVEY STROSBERG: Let me respond. 6 The witness, at examination for discovery, does not have 7 an obligation to volunteer evidence. In fact, the first 8 thing that you're taught in civil procedure is to tell 9 your clients not to volunteer. 10 It's a different process. Their 11 obligation is to answer the specific question. 12 COMMISSIONER SIDNEY LINDEN: Yes, 13 that's -- 14 MR. PETER ROSENTHAL: Yes. And the 15 specific question, may I then fasten on that, sir, was, 16 question 155: 17 "Can you describe how the meeting got 18 started?" 19 Would you not agree, sir, that a more 20 correct answer to that question would have been, the 21 answer you gave us here, with the Premier's statement? 22 OBJ MR. HARVEY STROSBERG: And I object to 23 the question. That was the question I objected to. 24 COMMISSIONER SIDNEY LINDEN: Yes. Mr. 25 Worme, do you want to --
1361 MR. DONALD WORME: It would appear that 2 Mr. Rosenthal wants to make his argument now and it's 3 simply not appropriate. 4 COMMISSIONER SIDNEY LINDEN: Yes, we have 5 got... 6 MR. PETER ROSENTHAL: With respect, Mr. 7 Commissioner, I don't want to make the argument now, I 8 want the answer to the question: Would he now agree that 9 it would have been more appropriate for him to answer the 10 question: 11 "And can you describe how the meeting 12 got started?" 13 With the answer, The Premier said, "I 14 want the fucking Indians out of the Park." 15 COMMISSIONER SIDNEY LINDEN: You can make 16 that argument when the time comes. You've got the answer 17 that he gave then. 18 MR. PETER ROSENTHAL: Yes. 19 COMMISSIONER SIDNEY LINDEN: And you've 20 got the answer that he gave now. The questions aren't 21 exactly the same. You're going to have to make some 22 argument to draw that together. I think you should move 23 on. 24 MR. PETER ROSENTHAL: Sir, with great 25 respect, in addition to my argument I would like his
1371 opinion, as to the person who knows himself best on both 2 occasions, as to whether he would agree -- 3 COMMISSIONER SIDNEY LINDEN: He's already 4 given you an answer and his answer was, he thought he was 5 responding to a different question. 6 MR. PETER ROSENTHAL: Yes. 7 COMMISSIONER SIDNEY LINDEN: So I think 8 you should move on. He didn't volunteer the information 9 that he has at this inquiry, but he believed that he was 10 responding to a different question as examination-for- 11 discovery. 12 MR. PETER ROSENTHAL: Yes. And I -- 13 well, I will accept your instruction, of course. 14 COMMISSIONER SIDNEY LINDEN: Thank you, 15 Mr. Rosenthal. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Now, you did, at the examination-for- 19 discovery, answer, question 158, and: 20 "The Premier remarked that once the 21 Park has been occupied there would be 22 no way to remove the occupiers and he 23 agreed based on the recommendations 24 that other people had made, that the 25 best way to proceed would be to seek a
1381 civil injunction." 2 Correct, sir? 3 A: That's correct. 4 Q: Now, I would put it to you that your 5 evidence at this proceeding was that the Premier first 6 made the statement, "I want the fucking Indians our of 7 the Park" and then he seemed to -- perhaps, taken aback 8 by it; that wasn't exactly your terminology. 9 And there was a pause. And then he made 10 that second statement there such as you indicated in 11 discovery; is that correct? 12 A: Well, what I -- what I felt was the 13 most important aspect and I still believe is the most 14 important aspect of all of this evidence, and you can 15 colour it any way that you want, the fact is that at the 16 end there was an agreement, and the Premier agreed that 17 the best way to proceed would be to seek the civil 18 injunction. 19 And to me the -- the most important aspect 20 of all of this is not what people may have said and when 21 but it's, in fact, what decision was made by the 22 Government and that's what the decision was. 23 Q: Yes, sir. Well, perhaps I should 24 deal with that now then, sir. 25 We've had much evidence at this Inquiry,
1391 and much of the evidence suggests that there were several 2 things going on simultaneously. There was the 3 application for an injunction, but there was also the 4 request that the OPP remove the people from the Park, and 5 there was also a public statement issued that the 6 Government had asked for the removal and so on. 7 Just to put that as background, sir. 8 Now -- 9 OBJ MR. HARVEY STROSBERG: I'd like to make 10 an objection, Mr. Commissioner. This is an improper way 11 to make a question. You ask questions, counsel doesn't 12 make a statement. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. HARVEY STROSBERG: I'd ask you to 15 please direct counsel to do that. 16 COMMISSIONER SIDNEY LINDEN: Again, Mr. 17 Strosberg, because this is such a long and difficult 18 proceeding, sometimes it's necessary to put context to a 19 witness so that he can answer a question. 20 MR. HARVEY STROSBERG: Well, in -- in 21 fairness, the statement that was made would -- there 22 would be at least some people who would take view with 23 the accuracy of the submissions of the -- 24 COMMISSIONER SIDNEY LINDEN: I was 25 wondering if some --
1401 MR. HARVEY STROSBERG: -- of the evidence 2 that would -- that the statement that was made. 3 COMMISSIONER SIDNEY LINDEN: Yes. Now, 4 that may be so. 5 MR. HARVEY STROSBERG: So, this isn't in 6 uncontradicted evidence by way of background. 7 COMMISSIONER SIDNEY LINDEN: Yes. I was 8 wondering that, Mr. Strosberg, and I was looking to see 9 if someone did. 10 MR. HARVEY STROSBERG: No, but that -- 11 but, that's precisely the point. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. HARVEY STROSBERG: And -- and it's 14 not a question, I mean, if you say I agree that there may 15 be some circumstances, but it has to be uncontradicted -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. HARVEY STROSBERG: -- and the very 18 point that the counsel has put is -- is a matter that's 19 an issue and you'll have to be -- you'll have to deal 20 with that. It can't be put as a fact to the witness and 21 that's the -- that's the evil in approaching the cross- 22 examination in this fashion. 23 COMMISSIONER SIDNEY LINDEN: The 24 potential evil. Yes, thank you. 25 MR. PETER ROSENTHAL: Well, with respect,
1411 Mr. Commissioner, I have been called worse than evil but 2 I don't think I'm being evil. 3 COMMISSIONER SIDNEY LINDEN: No -- 4 MR. HARVEY STROSBERG: I wasn't -- 5 COMMISSIONER SIDNEY LINDEN: No. It 6 wasn't personal, Mr. Rosenthal. 7 MR. HARVEY STROSBERG: I wasn't 8 suggesting Mr. Rosenthal was -- 9 COMMISSIONER SIDNEY LINDEN: There's no 10 need to make it personal. 11 MR. PETER ROSENTHAL: But -- 12 MR. HARVEY STROSBERG: I wasn't. It had 13 evil in the question and the approach, not in counsel. 14 COMMISSIONER SIDNEY LINDEN: Yes, I 15 understand that. 16 MR. PETER ROSENTHAL: It was my question 17 and it was not evil, sir, and it was with the intent to 18 bringing out the truth. In any event, I shall move on, 19 if I may. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: I would like to make the excerpt from 24 the examination-for-discovery that I asked this witness 25 about, the next exhibit if I may. And I have a copy that
1421 I could give for that purpose. It's just at pages 38 2 through 40 of that examination-for-discovery. 3 THE REGISTRAR: P-983, Your Honour. 4 COMMISSIONER SIDNEY LINDEN: 983? 5 THE REGISTRAR: 983, Your Honour. 6 7 --- EXHIBIT NO. P-983: Mr. Charles Harnick 8 Examination- for-Discovery, 9 pages 38 to 41, Sept. 24, 10 2001. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Now, as I think we can gather from 14 your evidence so far, by September of 1995 you had 15 acquired a great deal of respect for your Deputy 16 Minister, Mr. Larry Taman; is that fair? 17 A: Yes. 18 Q: And you read the transcripts of his 19 testimony here and you know that that respect was 20 reciprocated, as far so we could tell, from his testimony 21 here, right? 22 A: Yes. 23 Q: And you told us this morning that he 24 was, in answer to a general question about civil servants 25 protecting their Minister, you I think, declined to
1431 answer the question generally, but said that he was 2 someone who was concerned about that, to your 3 observation? 4 A: Yes. 5 Q: Now, there may have been some 6 confusion as to Mr. Taman's evidence about when he made 7 the note about you being instructed by the Premier. That 8 -- that note of course -- perhaps, Mr. Millar could put 9 it on the screen, but I don't necessarily need you to 10 look at it, we're all familiar with it. 11 It's at your Tab 35, P-940, Inquiry 12 Document 3000776, where Mr. Taman wrote: 13 "AG instructed by P that he desires 14 removal withing twenty-four (24) hours. 15 Instructed to seek injunction." 16 Now, Mr. Taman of course was asked about 17 that at some length. And he testified on November 15 in 18 these proceedings, beginning at page 190, line 6, he was 19 asked: 20 "But, we can be absolutely sure that 21 you wrote that before the diningroom 22 meeting, can we not? 23 A: I think that must be right. 24 Q: Yes. So, whatever exact time, it 25 was certainly before the diningroom
1441 meeting? 2 A: Yes. 3 Q: And you wrote that as a result of a 4 discussion that you had with the 5 Attorney General, shortly before 6 writing the note? 7 A: Right. 8 Q: And you wrote the note soon after 9 the discussion. You're quite sure it 10 was an accurate transcription of the 11 discussion? 12 A: Yes." 13 Now, that was part of Mr. Taman's 14 evidence. And then, sir, you've been referred to other 15 references to the Attorney General, how they've been 16 instructed, I could turn you to a couple other references 17 that we've had, and the evidence notes of Julie Jay and 18 so on, and it's including a statement attributed to Mr. 19 McCabe and so on. Now, sir, it is ten (10) years later 20 and -- 21 MR. HARVEY STROSBERG: I don't -- 22 COMMISSIONER SIDNEY LINDEN: He's trying 23 to get to the question. 24 MR. HARVEY STROSBERG: -- I don't know 25 what he's referring to.
1451 COMMISSIONER SIDNEY LINDEN: Well, he 2 said it was ten (10) years later. 3 MR. HARVEY STROSBERG: No, I'm talking 4 about the previous instructions by Julie Jai. I -- I 5 can't follow the recitation of facts. 6 MR. PETER ROSENTHAL: Sorry, I was trying 7 to be expeditious. I'll be happy to fill in My Friend on 8 that in as much detail as he wishes. 9 MR. HARVEY STROSBERG: I just want him to 10 make -- ask the question. 11 MR. PETER ROSENTHAL: I -- I must put a 12 context to the question, Mr. Commissioner. I -- 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MR. PETER ROSENTHAL: -- and -- and may I 15 try and ask the question? 16 COMMISSIONER SIDNEY LINDEN: Yes, you 17 may. Mr. Strosberg hasn't been here for all of the 18 evidence. I know that he's familiarized himself with it, 19 but -- 20 MR. PETER ROSENTHAL: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- some of 22 us are a little more familiar perhaps. And he's trying 23 to shortcut it and if he doesn't do it properly, then 24 you, of course, right to object. So, let's carry on. 25 MR. PETER ROSENTHAL: And I respectfully
1461 request, Mr. Strosberg, that you wait until I ask the 2 question, and then if you have an objection we'll deal 3 with it. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now, sir, I was trying to put it into 7 context for you, your respect for Mr. Taman, his evidence 8 that he had made the note right after talking with you 9 and so on, and the fact that it's ten (10) years later, 10 sir, and the fact that you've told us that with respect 11 to the other remark from Premier Harris you agonized over 12 it. 13 Now, the Commissioner's going to have to 14 make findings of fact at the end of the day, sir. And 15 would you agree that given all of that, it is reasonable 16 to assume that Mr. Taman was accurate when he told us 17 that he wrote that right after speaking to you, and he 18 accurately recorded what he learned from you at the time, 19 although you have forgotten it over the ten (10) year 20 period? 21 COMMISSIONER SIDNEY LINDEN: I don't 22 think that's -- 23 MR. HARVEY STROSBERG: That's not a 24 matter for him, that's a matter for you. 25 COMMISSIONER SIDNEY LINDEN: I don't
1471 think that's a question to ask this witness, so -- 2 MR. PETER ROSENTHAL: With -- with great 3 respect, sir. It's a question of how seriously he is 4 sure of the opposite, and -- and -- 5 COMMISSIONER SIDNEY LINDEN: Well, you 6 can ask him what he's sure of and what his testimony is, 7 but you're asking him about Mr. Taman's -- 8 MR. PETER ROSENTHAL: Yes, sir. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: In -- in one (1) or two (2) of his 12 answers, Mr. Taman said, when confronted by your counsel, 13 that you might say something opposite, said, that might 14 be so in one (1) or two (2) senses. He said if Mr. 15 Harnick said that, I would yield to him. He didn't with 16 respect to this, but he did with respect to some other 17 issues. 18 Would you agree, sir, that given the 19 circumstances, you would on balance, yield to Mr. Taman's 20 recollection as to what you told him on that occasion? 21 A: Well, I wouldn't, because I can tell 22 you that I never was instructed by the Premier in any 23 way, shape or form, or anyone in the Premier's office, to 24 seek removal within twenty-four (24) hours, or whatever 25 the -- the note indicates.
1481 And I can also tell you, and you've -- 2 you've indicated in -- in the question that you've asked, 3 that you believe, or you've postulated, that this 4 preceded the dining room meeting. And I can tell you 5 that the only decision that was made by the Government 6 was made at the dining room meeting, which came after 7 this purported instruction. 8 So, in -- in that sense, Mr. Taman and I 9 both went to a meeting in the Premier's dining room, at 10 some time after he wrote this instruction, or wrote this 11 notation, which I disagree with, nd the -- the decision 12 was made that we would seek an injunction at that 13 meeting, which post -- was post in time to when you say 14 this -- that this note was. 15 Q: Now, sir -- 16 A: So -- so -- 17 Q: -- we've had some evidence -- 18 A: -- can I -- can I just finish? 19 Q: Certainly. 20 A: So, that if -- if there was any 21 disagreement between Mr. Taman and me, it would have been 22 resolved by the fact that we had a dining room meeting 23 that clarified what the instruction was after this -- 24 long after this note was made by Mr. Taman. 25 MR. PETER ROSENTHAL: I'm going to move
1491 on, Mr. Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Mr. Rosenthal. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now, sir, we've had some evidence 7 that at the dining room meeting the word 'holocaust' was 8 mentioned. 9 Now, do you recall that, sir? 10 A: I don't recall the word 'holocaust' 11 being mentioned. It's something that I would be -- or 12 would have been and still be particularly sensitive to. 13 I'm a member of the Board of the Canadian Society for Yad 14 Vashem and that's a remark that -- that I would -- I 15 would remember if -- if I'd heard it. 16 Q: Now, you told us that you came in 17 late to the meeting you thought, perhaps, right? 18 A: That's somewhat accurate. 19 Q: So, a possible explanation for your 20 failing to recall any particular thing that someone else 21 recalled might be that it was said before you arrived; is 22 that fair? 23 A: Well, I -- I -- I'm not sure -- I'm 24 not sure who you're -- you're putting -- said that they'd 25 heard that.
1501 COMMISSIONER SIDNEY LINDEN: No, but 2 that -- 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: In any event -- 6 MR. HARVEY STROSBERG: You can't recall 7 something -- 8 COMMISSIONER SIDNEY LINDEN: It is in 9 evidence. 10 MR. HARVEY STROSBERG: -- if you're not 11 there. 12 COMMISSIONER SIDNEY LINDEN: No, we 13 understand that -- 14 MR. HARVEY STROSBERG: It's like asking 15 how long the car was behind you before he ran into you. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 Something may have happened before he came, but that's 18 for argument later. 19 MR. PETER ROSENTHAL: I just asked -- 20 asked him about coming late and possibly not hearing it, 21 because of that I think it was appropriate and I want to 22 move on quickly if I may. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: Now, you were -- had a dual role at
1511 the time as Minister responsible for Native Affairs and 2 being Attorney General, as well. 3 Now, would you agree that part of your 4 role as Minister Responsible for Native Affairs required 5 you to be attentive to the interests and concerns of 6 First Nations people, particularly? 7 A: Yes. 8 Q: That was one of your roles within 9 Cabinet to be particularly attuned to those concerns; is 10 that fair? 11 A: Yes. 12 Q: Now, this occupation of Ipperwash 13 Park, you understood that it had to do with some First 14 Nations standard kinds of issues about possible land 15 claims and burials and so on, although you didn't know 16 any details; is that fair to say? 17 A: Well, I -- I mean, at various stages 18 I learned that that was the case. 19 Q: Yes. And you learned some greater 20 detail as time went on. But, towards the beginning you 21 knew it had something to do with those issues but didn't 22 know specifics; is that fair? 23 A: And I -- that's fair. 24 Q: Thank you. In any event, it 25 certainly was a First Nations issue in your view; is that
1521 not so, sir? 2 A: I'm not sure that I -- 3 Q: You wonder why I'm even asking you 4 that question, sir? 5 A: Well, I -- I'm -- I'm not -- I'm not 6 sure what you mean by "it's a First Nations issue". 7 Q: Yes. The reason I ask you that, sir, 8 is that we've had evidence from Ms. Hutton that the 9 Premier did not regard it as a First Nations issue. He 10 regarded it simply as an illegal occupation of a park. 11 Now -- 12 A: Oh, okay. You're referring now -- I 13 understand. You're referring to the occupation? 14 Q: Yes. 15 A: All right. As opposed to land claims 16 or... 17 Q: Yes. 18 A: All right. 19 Q: I'm referring to the occupation, and 20 I'm suggesting that you, as Minister for Native Affairs, 21 you certainly knew it was a First Nations issue, in that 22 general sense; isn't that fair? 23 A: Well, certainly I -- I knew that 24 there were issues around Camp Ipperwash and -- and 25 Ipperwash Park. I knew that the occupation had occurred
1531 and we had a protocol or guidelines that were to be 2 followed in terms of how we would deal with that so -- 3 Q: If it was a First Nations issue? 4 A: Well, it -- it was a -- I mean, in 5 that sense, a First Nations issue -- 6 Q: Yes. 7 A: -- because the InterMinisterial 8 Committee met. The InterMinisterial Committee 9 deliberated and they provided certain recommendations to 10 me. 11 Q: Yes. Now, one of the important 12 functions of that InterMinisterial Committee, as you 13 understood it, was to, in situations like this, try to 14 avoid violence; isn't that correct? 15 A: Yes. 16 Q: And one of the tools at their 17 disposal for doing that, as you understood it, was the 18 possibility of their appointing a facilitator/negotiator 19 who could, in the short run, try to ease tensions and try 20 to help find a -- a solution to the problem; is that 21 fair? 22 A: The guidelines refer to that and I 23 think that's what I said yesterday in -- 24 Q: Yes. 25 A: -- in my evidence.
1541 Q: Now, we've had evidence from Julie 2 Jai, for example, that the insistence by Ms. Hutton that 3 the matter had to be resolved very quickly, was one of 4 the matters that precluded discussion of that at the 5 InterMinisterial Committee meetings. 6 COMMISSIONER SIDNEY LINDEN: Now, just 7 before you answer -- 8 MR. PETER ROSENTHAL: And my question to 9 you, sir -- 10 COMMISSIONER SIDNEY LINDEN: -- Mr. 11 Harnick, Ms. Perschy has an objection. 12 MR. PETER ROSENTHAL: Oh, sorry. 13 OBJ MS. ANNA PERSCHY: I made the same 14 objection yesterday. My question is, that this witness 15 is being asked about meetings that he didn't attend. He 16 doesn't know anything about these meetings. So, he's 17 already testified as to -- as to the limited knowledge 18 that he has based on the briefings that he had. 19 I appreciate Mr. Rosenthal wasn't here 20 yesterday, but we've covered this yesterday. And I had - 21 - I have the same objection today that I had yesterday 22 and you ruled on it yesterday. 23 MR. PETER ROSENTHAL: With respect, Mr. 24 Commissioner, I did not ask any question at all, so could 25 she say I was asking a question about the meeting
1551 yesterday -- 2 COMMISSIONER SIDNEY LINDEN: Well, you -- 3 MR. PETER ROSENTHAL: And I did read the 4 transcript very carefully, sir. And what I was asking 5 him is -- is -- I was putting to him some evidence that 6 we've had and then I was going to ask him a question, but 7 I was interrupted before I asked the question. 8 And it was not going to be about the 9 quality of that evidence or the truth of it or anything 10 that depended upon his being at that meeting. It was 11 something that depends upon his being the Minister 12 Responsible for Native Affairs and I should like to ask 13 that question if I -- 14 COMMISSIONER SIDNEY LINDEN: Mr. 15 Strosberg...? 16 MR. HARVEY STROSBERG: I -- I thought 17 that there was a question. I may have misunderstood, but 18 I thought the question was to the effect that Ms. 19 Hutton's or -- or Ms. Hutton's insistence eliminated the 20 consideration of a facilitator. I thought that was, in 21 essence, what the question was. 22 MR. PETER ROSENTHAL: No. 23 MR. HARVEY STROSBERG: And if that's not 24 what the question was then I don't have an objection. 25 But, I -- I don't understand how the Witness can be --
1561 can be -- I don't even understand the wind-up that 2 relates to Ms. Hutton -- 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. HARVEY STROSBERG: -- and her 5 insistence that there -- or in her insistence can be 6 wind-up to this Witness on a question where he didn't 7 have any interaction with her. 8 COMMISSIONER SIDNEY LINDEN: Let's start 9 again and see if you can -- 10 MR. PETER ROSENTHAL: But, Mr. 11 Commissioner, I'm very -- 12 COMMISSIONER SIDNEY LINDEN: You want 13 to -- 14 MR. PETER ROSENTHAL: -- cognizant of 15 time and time is a'wasting. 16 COMMISSIONER SIDNEY LINDEN: Well, 17 let's -- 18 MR. PETER ROSENTHAL: I haven't asked the 19 question yet and -- 20 COMMISSIONER SIDNEY LINDEN: Well -- 21 MR. PETER ROSENTHAL: -- I wish My 22 Friends would wait until I do so before they object to 23 it. 24 COMMISSIONER SIDNEY LINDEN: Well, I'm 25 not going to go over the record and see.
1571 MR. PETER ROSENTHAL: Yes, but in any 2 event, I just put a little background which is necessary 3 and my question then if I may is -- 4 COMMISSIONER SIDNEY LINDEN: You -- 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: -- did you become aware during this 8 time period of the possibility of this Committee 9 appointing a facilitator/negotiator and were you 10 concerned about whether or not they were doing that? 11 A: Well, I -- I -- what I knew was that 12 we had guidelines that officials from various Ministries 13 had come together as part of this Committee, that they 14 deliberated. I had people come to me to brief me and 15 provide me with a recommendation. 16 And, as I said yesterday, my assumption 17 was that they would have reviewed the various options and 18 then they came to me with an option that -- that was 19 reasonable, that they were recommending and that I 20 accepted. 21 Q: And that was the injunction option? 22 A: Yes. 23 Q: But, you understood, sir, that that 24 was not something that was going to lead to anything 25 immediate; isn't that fair?
1581 A: That's correct. 2 Q: And would you not have understood, 3 sir, that in a situation like that -- 4 A: And -- and may I -- may I say that 5 that's the first time someone has put to me that -- so -- 6 so that I could acknowledge that following the course of 7 an injunction was not to find an immediate solution -- 8 Q: Yes. 9 A: -- but it was to work this through 10 over a -- over a period of time under the Court's 11 supervision and -- and that's exactly why I thought that 12 this was a very reasonable approach that was being 13 recommended to me. 14 Q: And you understood, sir, as Minister 15 Responsible For Native Affairs that during that interim 16 period, before the matter was resolved, there was a 17 danger in a situation like this of something unsafe 18 happening. 19 There could -- there's always a danger in 20 -- in a situation like that that can become tense; isn't 21 that fair? 22 A: Well, certainly, you know, if you're 23 asking me whether I knew about police and policing 24 operations and -- 25 Q: No, sir.
1591 A: -- what -- what I knew was that there 2 was -- there was a group of people occupying the Park and 3 while they were occupying the Park the Government would 4 be going to seek an injunction. 5 Q: And I would put it to you, sir, that 6 your responsibility as Minister of Native Affairs would 7 have included, in order to try to protect those people 8 from any dangers that might result from tension of a 9 situation like that, insuring that some sort of 10 facilitator/negotiator were appointed in the short run to 11 try and ease tensions. 12 A: Well, could I -- 13 Q: Is that not fair, sir? 14 A: -- could I say, earlier in my 15 evidence I indicated that when I was briefed one (1) of 16 the -- the techniques to reduce tension was in fact 17 seeking an injunction. And -- and seeking injunctive 18 relief had been something that had -- had been used in 19 the past and it was, I was advised, was a good way to 20 reduce tension. 21 And that it was something that the 22 Ontario Provincial Police were part of -- of including 23 into the guidelines, and you know, I think -- well I knew 24 that the Committee was meeting, I knew what the options 25 for their consideration would be.
1601 And they came to me with very specific 2 recommendations, and it was my assumption that they had 3 taken a look at all of the options and they came to me 4 and made a recommendation to me, that this was what they 5 felt should be done in the circumstances, and I agreed 6 with them. 7 MR. PETER ROSENTHAL: Mr. Commissioner, 8 I'm reluctant to cut the witness off, but I'm also 9 anxious to get answers to my questions. 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: And -- and, sir, my -- my question, 14 if I may reiterate was. 15 Did you not feel it was your 16 responsibility, given the danger in the short term, to 17 ensure that there be some sort of facilitator or 18 negotiator appointed, to try to avoid such danger? 19 A: We -- we had guidelines and the 20 guidelines were -- were deliberated over by a Committee. 21 The Committee considered those things and then officials 22 of -- of the Ontario Native Affairs Secretariate came to 23 me with a recommendation. 24 And as I told you, it was my assumption 25 that those options were considered and this was the
1611 recommended course of action and I accepted it. 2 Q: Yes, but you also told us, sir, that 3 you knew that an injunction would take a long time to 4 have any effect; right? 5 And I'm putting to you that you rec -- you 6 should have recognized in your responsibility, that in 7 the short run there was danger of miscommunication 8 between, for example, police and occupiers. 9 MR. HARVEY STROSBERG: I stand to be 10 corrected, but I didn't think the witness said that it 11 would take a long time to get an injunction. 12 COMMISSIONER SIDNEY LINDEN: Well he 13 thought it would take some time, I think. I'm not sure 14 if he said long time or it would take time, I think he -- 15 THE WITNESS: I recognized -- I 16 recognized that it would take some time. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: But did you not recognize the short 21 term danger in the interim, sir? 22 A: I -- I knew that officials who had 23 been part of this Committee had looked at the options -- 24 MR. PETER ROSENTHAL: Okay, with respect, 25 Mr. Commissioner, I --
1621 COMMISSIONER SIDNEY LINDEN: Gone back 2 and forth three (3) times on this and -- 3 MR. PETER ROSENTHAL: Yes, well -- 4 COMMISSIONER SIDNEY LINDEN: -- you 5 need -- 6 MR. PETER ROSENTHAL: -- and he's not 7 answered the question, in my submission, but I'll save 8 that for submissions if I may. 9 THE WITNESS: With respect, to me, I 10 think I am answering the question and you just don't like 11 the answer. 12 COMMISSIONER SIDNEY LINDEN: It's not 13 fair to say he hasn't answered the question, he has. 14 It's not an answer -- 15 MR. PETER ROSENTHAL: Well I'll save it 16 for submissions, Mr. -- 17 COMMISSIONER SIDNEY LINDEN: -- you are 18 expecting. Yes. 19 MR. PETER ROSENTHAL: -- Mr. 20 Commissioner. But I do want to get to certain important 21 points if I may. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: Now, we had evidence from Mr. Taman
1631 that he understood you at one (1) point to be taking, as 2 he had advocated, a go-slow approach as it was termed, to 3 dealing with the matter. But then his evidence was you 4 changed your instructions with that respect upon, he 5 understood, your receiving instructions from the Premier. 6 Now, what I wish to ask you, sir, is -- 7 COMMISSIONER SIDNEY LINDEN: He's putting 8 to him, Mr. -- 9 MR. HARVEY STROSBERG: I don't believe 10 that -- I think Mr. Taman withdrew that position after he 11 said it. 12 COMMISSIONER SIDNEY LINDEN : Well I -- 13 MR. HARVEY STROSBERG: And in any event, 14 that because we have a -- again we have a dispute about 15 the summary of the evidence. 16 COMMISSIONER SIDNEY LINDEN: Yes, well 17 I'm not sure if anybody is going to dispute that summary, 18 if somebody does then we'll have to deal with it. 19 MR. PETER ROSENTHAL: I can read the 20 transcript if necessary. 21 COMMISSIONER SIDNEY LINDEN: Yes. It 22 would be better if you do then there'll be no dispute. 23 MR. PETER ROSENTHAL: You can look at, 24 Mr. Strosberg, if you want to see testimony about that 25 from among other places, you can look at --
1641 MR. HARVEY STROSBERG: I -- I dispute 2 that that is what he said. 3 MR. PETER ROSENTHAL: -- November -- may 4 I give you the reference, sir, November 14, 2005 at page 5 90 and subsequently. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Now, sir, I didn't ask a question 9 yet. My question was -- 10 MR. HARVEY STROSBERG: Just a moment, if 11 I may, in cross-examination you changed -- you changed -- 12 in cross-examination he changed that position, and if 13 we're going to have to have a fight about what Mr. Taman 14 said, we'll have to have a fight about it. 15 But I can't understand why counsel simply 16 can't just put the question to the witness without 17 reference to the evidence of Mr. Taman. 18 MR. PETER ROSENTHAL: And I'm trying to 19 put the question, I haven't been allowed to, sir. 20 COMMISSIONER SIDNEY LINDEN: Okay -- 21 MR. PETER ROSENTHAL: May I put the 22 question? 23 COMMISSIONER SIDNEY LINDEN: -- the 24 premise to your question is not agreed to by Mr. 25 Strosberg --
1651 MR. PETER ROSENTHAL: Yes, I appreciate 2 that. 3 COMMISSIONER SIDNEY LINDEN: -- as a fair 4 representation of -- 5 MR. PETER ROSENTHAL: I appreciate that, 6 but may I -- 7 COMMISSIONER SIDNEY LINDEN: So, let's 8 get at the question. 9 MR. PETER ROSENTHAL: -- regardless of 10 the premise, may I take your counsel's advice, sir, and 11 put the question. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Would you dispute Mr. Taman's 15 evidence in the following respect, that at some point at 16 the beginning of this you and he had agreed that a go 17 slow approach was appropriate. 18 Do you dispute that evidence, sir? 19 A: I -- I don't recall any discussion 20 about a go slow approach per se. I had a meeting with 21 officials who had been part of the InterMinisterial 22 Committee, Mr. Taman was part of that meeting, a 23 recommendation was made to seek an injunction. 24 We then went to a meeting some hours later 25 after or following the Cabinet meeting that was the
1661 dining room meeting, we went to that dining room meeting 2 and we sought concurrence from other involved Ministries 3 to -- to seek the injunction. 4 So an injunction was recommended to me in 5 the morning, I went to a meeting with Mr. Taman in the 6 afternoon. Mr. Taman was the one who made the 7 representations at that meeting in the afternoon and we 8 were -- we received the concurrence of -- of others there 9 to seek an injunction. 10 MR. PETER ROSENTHAL: I shall move on, 11 Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Thank you, 13 Mr. Rosenthal. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Now, sir, one of your 17 responsibilities as the Attorney General of Ontario at 18 this time period I gather was advising the Government if 19 there was any danger that they were behaving unlawfully 20 in any respect; is that correct? 21 A: Well, it was to take the role as -- 22 as legal advisor to the Government. 23 Q: And that would include if you 24 observed something that you thought might be unlawful on 25 the part of the Government for you to investigate and
1671 determine that and give advice that they behave lawfully; 2 isn't that fair? 3 A: Well, you would give them advice and 4 they would choose to either accept it or not accept it. 5 Q: Yes. But your responsibility -- 6 A: On various issues. 7 Q: -- included such advice; is that 8 correct? 9 A: Yes. 10 Q: Is that correct, sir? 11 A: That would be a way of -- of saying 12 it I suppose. 13 Q: Now -- 14 A: But one of the roles of the Attorney 15 General is to be the legal advisor to the Government. 16 Q: Yes. Now you were aware during 17 September 4, 5 and 6, 1995 days that there was a concern 18 about the possibility of the Government either actually 19 directing or being seen to direct the police, right, you 20 were aware of that concern being raised? 21 A: Yes. 22 Q: Now, as the Chief Law Officer of the 23 Crown did you see a problem with government officials 24 telling the OPP that they wanted the people removed from 25 the Park?
1681 A: I -- I don't know who gave that 2 instruction. I certainly wasn't aware that anyone gave 3 that instruction. And -- and certainly I haven't heard 4 that any government official gave instructions to the 5 Ontario Provincial Police as to their operations. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. PETER ROSENTHAL: Well-- 8 COMMISSIONER SIDNEY LINDEN: It's another 9 matter. Yes, Mr. Downard...? 10 MR. PETER DOWNARD: My -- my concern is - 11 - is that when we're going to be going to essentially 12 matters that are the subject of evidence, one should be 13 taking us to a specific reference. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. PETER DOWNARD: I mean, there's no 16 evidence to support what the witness just took from Mr. 17 Rosenthal's question and -- 18 COMMISSIONER SIDNEY LINDEN: And we go 19 off on a tangent. 20 MR. PETER DOWNARD: Yes. 21 COMMISSIONER SIDNEY LINDEN: So if you're 22 going to ask a question that's based on the evidence, we 23 should refer to it, I mean -- 24 MR. PETER ROSENTHAL: Well, I don't have 25 specific references for everything written here --
1691 COMMISSIONER SIDNEY LINDEN: If you 2 summarize it, that's fair. 3 MR. PETER ROSENTHAL: There are some 4 things that we all know though. 5 COMMISSIONER SIDNEY LINDEN: Yes, that's 6 what I'm saying. If you summarize it and if it's 7 summarized accurately and fairly -- 8 MR. PETER ROSENTHAL: Yes. 9 COMMISSIONER SIDNEY LINDEN: -- no one 10 will take objection. But on some matters there's 11 considerable controversy -- 12 MR. PETER ROSENTHAL: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- and on 14 those matters you have to refer to the transcript -- 15 MR. PETER ROSENTHAL: Yes. 16 COMMISSIONER SIDNEY LINDEN: -- exactly. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: So perhaps more precisely I might say 20 that we've had evidence that -- that lawyers instructed 21 the InterMinisterial Committee that you could ask -- you, 22 government official, MNR officials and so on -- could ask 23 the OPP to remove them from the Park but you could not 24 demand that they do so, you could not order them to -- 25 A: Hmm hmm.
1701 Q: -- and we've also had evidence that 2 in fact officials of MNR did request of the OPP that they 3 remove persons from the Park, okay? 4 COMMISSIONER SIDNEY LINDEN: Stop. Stop 5 there for a minute. Now this is all background to a 6 question that you're going -- 7 MR. PETER ROSENTHAL: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- to ask 9 and so far no one has objected to the accuracy -- 10 MR. PETER ROSENTHAL: Good. 11 COMMISSIONER SIDNEY LINDEN: -- of the 12 background. Now, let's -- 13 MR. PETER ROSENTHAL: Now, the question 14 is the following -- 15 COMMISSIONER SIDNEY LINDEN: Oh, I'm 16 sorry -- 17 MR. PETER ROSENTHAL: You shouldn't have 18 said that possibility. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MR. PETER DOWNARD: To be -- to be fair, 21 the evidence should be complete and it should also be 22 added that the evidence My Friend is referring to also 23 included the restriction that Mr. Hutchinson conveyed at 24 the meeting that the OPP could not be asked how -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
1711 MR. PETER DOWNARD: -- or when to remove. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. PETER ROSENTHAL: Yes. 4 COMMISSIONER SIDNEY LINDEN: Okay. Okay. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Yes, exactly, that -- and I'm happy 8 to be as detailed as anyone wishes here, sir -- it was 9 that the OPP has been asked to remove them from the Park, 10 although how and when to do it is up to them is what the 11 evidence has been in several sources here, sir. 12 Now, do you, as someone who was the Chief 13 Law Officer of the Crown, you told us you -- you don't 14 recall being aware of that at the time; is that -- is 15 that your evidence, sir? 16 A: I was not aware of that. 17 Q: Well, I -- 18 A: And -- 19 Q: -- I would put it to you, you can't 20 be sure ten (10) years later that you were not aware of 21 it, all you can tell us is that you don't recall being 22 aware; isn't that fair? 23 A: I -- I wasn't aware of the -- the 24 involvement, and I -- I think you're referring to Scott 25 Hutchinson?
1721 Q: No. I -- yes, I'm referring to Scott 2 Hutchinson having said that at one point but that -- 3 that's not what I'm asking you about, sir. I'm asking 4 you about -- I'd like to ask you the following question, 5 sir. 6 As the Chief Law Officer of the Crown 7 would there be concern on your part if it had been -- if 8 you'd been informed that we are going to ask the OPP to 9 remove them but while we cannot demand that they do so 10 and we cannot tell them how and why to do so, we're going 11 to ask them to; would that have caused you concern, sir? 12 A: Well, let me -- the only way I can 13 answer this question for you is -- is -- is to tell you, 14 I think I've given this as part of my evidence earlier, 15 how I approached this issue. 16 And I approached this issue based on the 17 fact that we had guidelines. And the guidelines set out 18 a process. And as Attorney General I wanted to be sure, 19 A), that we followed the process and B) that the decision 20 that we made was a decision that was contained as part of 21 those guidelines. 22 And I was sure -- I was satisfied that the 23 process had been followed. I was satisfied that the 24 decision that was made was a -- a decision that flowed 25 from and was contained in the guidelines and that by
1731 seeking the injunction we were providing the tools that 2 the OPP would need to reduce tensions and hopefully 3 safely end the occupation; that's the way I approached 4 it. 5 COMMISSIONER SIDNEY LINDEN: Now, that's 6 an answer. 7 MR. PETER ROSENTHAL: With respect -- 8 COMMISSIONER SIDNEY LINDEN: That's an 9 answer to the question. 10 THE WITNESS: And that's the only way I 11 can answer that question. 12 MR. PETER ROSENTHAL: With great respect, 13 Mr. Commissioner, it is a statement. It has nothing to 14 do with the question. 15 COMMISSIONER SIDNEY LINDEN: Well, I 16 think it's an answer to the question. 17 MR. PETER ROSENTHAL: Well, with great 18 respect -- 19 COMMISSIONER SIDNEY LINDEN: And I think 20 that he's done his best to answer the question. 21 MR. PETER ROSENTHAL: Mr. Commissioner, 22 my question was, whether he would have had concerns 23 about -- 24 COMMISSIONER SIDNEY LINDEN: He explained 25 that he felt that the process had been followed.
1741 MR. PETER ROSENTHAL: Yes. 2 COMMISSIONER SIDNEY LINDEN: And that's 3 the essence of his answer. 4 MR. PETER ROSENTHAL: But would he have - 5 - may I respectfully ask one more time for clarity, sir? 6 Because in my respectful submission, his answer had 7 nothing whatsoever to do with the question. 8 COMMISSIONER SIDNEY LINDEN: Well, you 9 can make that argument when the time comes. But I 10 believe that he's answered the question a number of times 11 in a number of different ways so I think you should move 12 on. 13 It may not be an answer that -- 14 MR. PETER ROSENTHAL: Okay. 15 COMMISSIONER SIDNEY LINDEN: It certainly 16 wasn't a short answer but it's an answer that responds to 17 the question. 18 MR. PETER ROSENTHAL: But with great 19 respect, Mr. Commissioner, I disagree and I should like 20 to ask another question and would ask that we be very 21 attentive to whether or not he is responding to the 22 question. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: Now, would you, as chief law officer
1751 of the Crown, have been concerned if you were aware that 2 the Government was putting out a public message that the 3 OPP had been asked to remove the people from the Park? 4 Would you have been concerned about that, 5 had you been aware, sir? 6 A: I would have been concerned about 7 something like that if we hadn't been following protocol 8 and the guidelines that were in place. And my concern 9 and my role was to ensure that we followed those 10 guidelines. 11 Q: But given the -- 12 A: And I was satisfied that we did. 13 Q: And am I taking it then, sir, that 14 given your belief that those guidelines were being 15 followed, you would not have been concerned about such a 16 public statement; is that your answer, sir? 17 A: In -- in conjunction with the fact 18 that we were following the guidelines, that's my answer. 19 Q: I see. Now, sir, as the chief law 20 officer of the Crown, would you have been concerned if a 21 member of the provincial parliament of the Progressive 22 Conservative Party met with the incident commander at 23 Ipperwash Park on the evening of September 6th, 1995. 24 And, in response to a question from an 25 officer there as to whether there was anything from the
1761 Solicitor General, informed them that they were meeting 2 today. 3 The Solicitor General was meeting today; 4 would that have caused you concern as chief law officer 5 of the Crown? 6 A: Yes. 7 Q: Yes. And, sir, if that MPP had, at 8 that same meeting, given the incident commander the 9 understanding that there was a view that if the police 10 can't handle the situation it might be necessary to bring 11 in the Military; would that cause you concern if an MPP 12 was saying that to an incident commander in these 13 circumstances? 14 A: If indeed -- if, indeed, that was 15 being said, yes, it would cause me concern. Did I know 16 that that was, in fact, taking place? I did not. And -- 17 Q: No, I appreciate that, sir. 18 A: And as well, the -- my knowledge was 19 that the Government had made a decision. The decision 20 was to seek the injunction and that was the only decision 21 that the Government had made. 22 Q: I understand your evidence in that 23 respect, sir. You've indicated that you would have been 24 concerned had you been aware but you were not aware, as 25 far as you recall; is that fair?
1771 A: I was not aware. 2 Q: Thank you. Now similarly, sir, and 3 the last question of that type: If that MPP had advised 4 in those circumstances, the OPP Incident Commander, that 5 in his view he, the MPP, he thought they should be out of 6 the Park, the people should be out of the Park, would 7 that cause you concern? 8 A: I think -- I think, certainly, yes it 9 would. And the perception of -- of an MPP having those 10 discussions I think is -- the perception is more than the 11 reality, but yes, it would cause me concern. 12 Q: But would you agree that the reality 13 of the impact might be hard to judge but the perception 14 is clearly bad? 15 A: Well, the reality of the impact is, I 16 suppose, best described by the people who that MPP spoke 17 to. 18 Q: Now, sir, if you could please turn to 19 Tab 44 of your documents which is Exhibit P-442 to these 20 proceedings and is Inquiry Document 1000891. This is the 21 Injunction Order that was granted, sir? 22 A: Yes. 23 Q: And I just simply wish to ask you 24 about one paragraph of that Order, paragraph 4. Now it 25 might be of assistance if Mr. Millar could do his usual
1781 help. I'm on the last matter that I've listed there, 2 sir, which is the Injunction Order and paragraph 4 3 thereof. 4 COMMISSIONER SIDNEY LINDEN: You have a 5 copy in front of you, do you Mr. Harnick? 6 THE WITNESS: Yes. 7 COMMISSIONER SIDNEY LINDEN: It's on the 8 screen. 9 THE WITNESS: I'm looking at paragraph 4. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: Yes, sir. And I noticed that you 13 were reading it and I was pausing to allow you to do so 14 at your leisure. 15 16 (BRIEF PAUSE) 17 18 A: Yes. 19 Q: Now, sir, this paragraph is an Order 20 that agents and servants of the Government of Ontario, 21 that are directed to do so by any Minister or Deputy 22 Minister, have to do certain things, like remove camping 23 equipment and so on. 24 Now were you aware at the time, sir, that 25 this was one of the terms being included in this
1791 Injunction Order? 2 A: I -- I don't know if I can -- my -- 3 my understanding was that this was directed to the 4 removal of these various things -- 5 Q: Yes. 6 A: -- after the occupation would have 7 ended. I think that's -- 8 Q: That may or may not be so, sir. That 9 wasn't my question. My question was, were you aware, in 10 general, of this paragraph of the Order? 11 A: No. 12 Q: No. Was it the practice while you 13 were Attorney General to include, in Orders, directions 14 to agents and servants of the Government of Ontario, such 15 as this? 16 A: That -- that would be -- the details 17 of this Order were not something that I would be 18 directing or seeking, but they would be things that would 19 have been left to the person seeking the injunction. 20 Q: Yes. But you -- you would have been 21 responsible for it as Attorney General; is that correct? 22 A: Well -- but -- but in terms of the 23 detail, how the work was done and the substance of each 24 every paragraph contained in the Order, that would be a 25 matter of the discretion of the person doing the work in
1801 conjunction with instructions being received from a 2 Deputy Minister or an Assistant Deputy Minister. 3 Q: Well having read this over now, 4 whatever you may or may not have learned about it ten 5 (10) years ago, would you agree that it would appear to 6 be an order that applies to anyone who works for the 7 Government of Ontario and would appear to place such a 8 person in contempt if that person did not follow 9 directions by the Minister or Deputy Minister, such as 10 outlined in that order? 11 Sorry, there's an objection to the 12 question, so don't answer until we here it. 13 MR. HARVEY STROSBERG: This witness was 14 the Attorney General. Policy -- the -- Attorney Generals 15 make policy issues. The question of whether or not this 16 paragraph is a general form in an injunction that's found 17 during his tenure is not something that the witness would 18 deal with as a matter of policy, nor would he necessarily 19 know. 20 The question of whether a servant of the 21 Crown would be in contempt of court by not following an 22 order of the Minister or Deputy Minister is a matter of 23 law. It's not a matter of opinion -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. HARVEY STROSBERG: -- for this
1811 witness. The question is clearly improper, in my 2 submission. 3 COMMISSIONER SIDNEY LINDEN: Perhaps the 4 witness could be asked what his interpretation of the 5 section is. 6 MR. PETER ROSENTHAL: Yes. 7 MR. HARVEY STROSBERG: But it -- we have 8 a court order -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. HARVEY STROSBERG: -- and -- sorry... 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: We've had 15 some other evidence about this paragraph, Mr. Strosberg. 16 Some people attribute different -- 17 MR. HARVEY STROSBERG: Well, I -- I 18 understand that. But -- but at the end of the day -- at 19 the end of the day the interpretation of a court order is 20 a matter of law. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. HARVEY STROSBERG: It's not a matter 23 of opinion for -- for this witness -- 24 COMMISSIONER SIDNEY LINDEN: No. 25 MR. HARVEY STROSBERG: -- nor is he in a
1821 position to talk about what the intent of it was. 2 COMMISSIONER SIDNEY LINDEN: But he was 3 asked if he knew about it. 4 MR. HARVEY STROSBERG: And he said -- he 5 said that -- 6 COMMISSIONER SIDNEY LINDEN: He did not. 7 MR. HARVEY STROSBERG: -- he did not. 8 And so to ask him today to tell you what it means is to 9 ask an expert opinion from him based on what -- what he's 10 reading. He's -- that's not the kind of evidence you get 11 from a witness, with respect. 12 The -- the interpretation -- if -- if this 13 was counsel who drafted it and wanted to ask what he 14 intended, that might be one thing. To ask him to 15 interpret an order that's issued and entered, in my 16 respectful submission, is not for him, it's for you to 17 say what it is. 18 COMMISSIONER SIDNEY LINDEN: I think we 19 asked some of these question of Mr. McCabe, did you not? 20 MR. PETER ROSENTHAL: Yes, sir. But we 21 have the Attorney General of Ontario. This was -- 22 COMMISSIONER SIDNEY LINDEN: Yes, but the 23 Attorney General of Ontario does not participate directly 24 in the preparation -- 25 MR. PETER ROSENTHAL: Yes, but, sir, --
1831 COMMISSIONER SIDNEY LINDEN: -- of these 2 matters. 3 MR. PETER ROSENTHAL: -- would you agree 4 -- may I ask -- 5 COMMISSIONER SIDNEY LINDEN: Well, he can 6 only be asked -- 7 MR. PETER ROSENTHAL: -- a supplementary 8 question? 9 COMMISSIONER SIDNEY LINDEN: -- things 10 that he knows about. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Now, sir, you'd -- I would put it to 14 you that you don't recall now, ten (10) years later, how 15 much of the details of the Order requested you were 16 informed of by Mr. McCabe, Mr. Taman or other people at 17 the time; is that fair? 18 A: I -- I wouldn't have been involved in 19 the details of that. I can tell you from reading this, 20 you look at paragraph 3 and it -- it says what you're 21 enjoined from and then once that -- you're enjoined from 22 all those -- those things. 23 And then after the -- after that, I mean, 24 the way this was interpreted to me, and I can't -- I 25 mean, it may have even been recently, was that once that
1841 took place then -- then -- then you had the authority to 2 remove the things that were left. 3 Q: Yeah. I understand your evidence in 4 that respect, sir, as far as the -- what you understood 5 the timing of the effect of this would have been. 6 But I'm asking you, sir, as the Chief Law 7 Officer of the Crown responsible for ensuring that the 8 Government behaves lawfully and so on, would you agree, 9 sir, that this paragraph appears to bind the servants and 10 agents of the Government of Ontario to orders by 11 Ministers or Deputy Minister; would you agree with that, 12 sir? 13 COMMISSIONER SIDNEY LINDEN: Now, that -- 14 again, I think Mr. Strosberg is right; that's a matter of 15 interpretation. It's in the Order and that's fine. It's 16 in the Order, you can make that argument if you wanted 17 to. 18 He didn't have anything to do with 19 drafting it. 20 MR. PETER ROSENTHAL: With great respect, 21 Mr. Commissioner, we have the Attorney General of Ontario 22 who was responsible -- 23 COMMISSIONER SIDNEY LINDEN: But he 24 didn't -- 25 MR. PETER ROSENTHAL: -- at the time for
1851 ensuring that they -- that the Government behaves 2 lawfully. 3 COMMISSIONER SIDNEY LINDEN: Ultimately 4 responsible -- 5 MR. PETER ROSENTHAL: And I want to ask 6 them were they -- were they behaving lawfully in this 7 case. 8 COMMISSIONER SIDNEY LINDEN: Ultimately 9 responsible. 10 MR. PETER ROSENTHAL: Yes. 11 COMMISSIONER SIDNEY LINDEN: But he 12 didn't have anything to do with drafting this. 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: And I'm not 15 sure that he can answer many more questions about it. 16 MR. PETER ROSENTHAL: Well, with great 17 respect, I would just request that he be given the 18 opportunity to answer and if he can't answer then I'll 19 move on. 20 COMMISSIONER SIDNEY LINDEN: What's the 21 question? I wanted you -- 22 MR. PETER ROSENTHAL: I've rephrased it 23 to try to take into account an objection. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
1861 Q: My question then would be: As Chief 2 Law Officer of the Crown at the time, would you agree 3 that there's a potential problem here in having an order 4 that binds agents and servants of the Government of 5 Ontario to follow the instructions of Minister or Deputy 6 Ministers in this fashion. 7 OBJ MR. HARVEY STROSBERG: Well, I object to 8 the question because it calls for an interpretation of 9 the Order. It's the same question phrased somewhat 10 differently. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. PETER ROSENTHAL: But with respect, 13 Mr. Commissioner it calls -- 14 MR. HARVEY STROSBERG: And it doesn't 15 matter that he's -- he was the former chief law officer. 16 It's a matter of law as to what -- 17 COMMISSIONER SIDNEY LINDEN: We can't 18 hear. Unfortunately, Mr. Strosberg, when you speak from 19 your place we can't hear you and neither can the 20 transcript unfortunately. 21 MR. HARVEY STROSBERG: I'm sorry. It's a 22 matter of -- the -- the scope of the Order is a matter of 23 law. It doesn't matter how you put it, the 24 interpretation and the impact of the -- of an injunctive 25 order is for you to decide whether it bounds someone,
1871 whether someone would be in contempt if they didn't flow 2 it, whether it's a matter of policy, is bad policy. It 3 is a matter for you. 4 But, the interpretation of the legal 5 affect of that on a person who was a servant, agent, or 6 officer of the Crown is a matter -- is a matter for you, 7 not for this Witness. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 I think I agree with that and I'm going ask you to move 10 on. It doesn't help us whatsoever to have -- 11 MR. PETER ROSENTHAL: Well -- 12 COMMISSIONER SIDNEY LINDEN: -- his view 13 at this point, so I think we better move on. 14 MR. PETER ROSENTHAL: With great respect, 15 I -- I should have liked to have responded, Mr. 16 Commissioner, but -- 17 COMMISSIONER SIDNEY LINDEN: Well, you've 18 made your point -- 19 MR. PETER ROSENTHAL: Okay. 20 COMMISSIONER SIDNEY LINDEN: -- before. 21 I don't want to cut you off, but... 22 MR. PETER ROSENTHAL: With great respect, 23 may I just respond as follows. 24 We have the person who was responsible -- 25 COMMISSIONER SIDNEY LINDEN: Ultimately.
1881 MR. PETER ROSENTHAL: -- ultimately 2 responsible -- 3 COMMISSIONER SIDNEY LINDEN: Yes. Yes, 4 but not -- 5 MR. PETER ROSENTHAL: -- and this is done 6 in his name. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. PETER ROSENTHAL: And I can't ask 9 him -- 10 COMMISSIONER SIDNEY LINDEN: You -- 11 MR. PETER ROSENTHAL: -- about his 12 interpretation of it? 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. PETER ROSENTHAL: Which may or may 15 not accord with a judge's interpretation, may or may not 16 accord with the Commissioner's -- 17 COMMISSIONER SIDNEY LINDEN: It's after 18 the fact. The order has been made. 19 MR. PETER ROSENTHAL: Yes. 20 COMMISSIONER SIDNEY LINDEN: You can ask 21 him and you did ask him about preparation of it; that 22 would be proper in my view, if he had anything to do with 23 developing it, preparing it, or instructions given with 24 respect to it, then I think that would be appropriate, 25 but --
1891 MR. PETER ROSENTHAL: With respect -- 2 COMMISSIONER SIDNEY LINDEN: -- you're 3 asking him after the Order was made, his interpretation 4 of it. I don't think that's helpful. 5 MR. PETER ROSENTHAL: Well, perhaps I 6 could ask a slightly different question? I'm not sure if 7 it would be objected to? 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: Were you aware of any problem in the 11 functioning of the Ontario Government that would require 12 the Government to seek court orders that servants and 13 agents of the Government do what they're told by 14 Ministers and Deputy Ministers? 15 COMMISSIONER SIDNEY LINDEN: You see, Mr. 16 Rosenthal, I don't interpret this clause in the way that 17 you're suggesting at the moment. 18 Now, I understand at some point in time 19 you or other counsel are going to make an argument -- 20 MR. PETER ROSENTHAL: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- about 22 what this means, but at this point in time that is not a 23 statement that I agree with or understand at this moment. 24 MR. PETER ROSENTHAL: I -- I appreciate 25 that, sir.
1901 COMMISSIONER SIDNEY LINDEN: Whether or 2 not this is simply a standard form clause that's put in 3 injunctions routinely, I don't know any of that at this 4 point. 5 MR. PETER ROSENTHAL: Yes. 6 COMMISSIONER SIDNEY LINDEN: So I'm not 7 prepared to draw conclusions from this that you seem to 8 be drawing -- 9 MR. PETER ROSENTHAL: Absolutely. 10 COMMISSIONER SIDNEY LINDEN: -- and that 11 is not evidence at the moment. 12 MR. PETER ROSENTHAL: Yes, sir. No, and 13 I'm not suggesting that any of us draw any conclusions at 14 this point. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. PETER ROSENTHAL: What I want from 17 this Chief Law Officer of the Crown is his understanding 18 and that might help us to draw certain conclusions. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MR. PETER ROSENTHAL: Not necessarily 21 about the meaning of it, but about what the Government 22 was doing during this time period. 23 COMMISSIONER SIDNEY LINDEN: Well, what 24 it requires is for him to interpret it and I don't think 25 that's useful or helpful at this stage. So I would ask
1911 you to move on. 2 MR. PETER ROSENTHAL: Thank you. Well, I 3 do wish to be useful, Mr. Commissioner. I will simply 4 end by saying I do, in spite of any of the foregoing, 5 greatly appreciate your courage and integrity in 6 reporting the Premier's statement to us. Thank you very 7 much, sir. 8 THE WITNESS: Thank you. 9 COMMISSIONER SIDNEY LINDEN: Thank you, 10 Mr. Rosenthal, I appreciate you trying to be cooperative. 11 I do appreciate it. Thank you. 12 MR. PETER ROSENTHAL: Thank you. 13 Do you have any re-examination, Mr. Worme? 14 MR. DONALD WORME: No. 15 COMMISSIONER SIDNEY LINDEN: No, I'm 16 sorry. You're before him. Excuse me, Mr. Strosberg. As 17 counsel for Mr. Harnick it's your turn. 18 Do you have some questions, Mr. Strosberg? 19 MR. HARVEY STROSBERG: I do. 20 COMMISSIONER SIDNEY LINDEN: Can you make 21 some reasonable estimate as to how long you might be? 22 MR. HARVEY STROSBERG: Ten (10) or 23 fifteen (15) minutes. 24 25 (BRIEF PAUSE)
1921 CROSS-EXAMINATION BY MR. HARVEY STROSBERG: 2 Q: Mr. Harnick, I want to -- want to 3 start by asking you about the -- the case of Regina and 4 Nikal, N.I-K-A-L, that was referred to by Mr. Falconer. 5 And you'll recall that he talked about a Notice of 6 Withdrawal in the docket that -- from the Supreme Court 7 of Canada. 8 A: Yes. 9 Q: Do you have that brief of documents 10 before you? It would be Tab 4. 11 A: Yes, sir. 12 Q: Would you turn, please, to -- to Tab 13 4 of that brief of documents. 14 MR. HARVEY STROSBERG: Commissioner, do 15 you have it? 16 COMMISSIONER SIDNEY LINDEN: Yes, I think 17 I do. Yes, I do now. 18 19 CONTINUED BY MR. HARVEY STROSBERG: 20 Q: And if you turn to the date, it's 21 about six (6) or seven (7) pages in, it says 1995/11/06. 22 COMMISSIONER SIDNEY LINDEN: Is there a 23 page number at the top of the -- 24 MR. HARVEY STROSBERG: Fortunately -- 25 COMMISSIONER SIDNEY LINDEN: There is a
1931 page number at the top right-hand corner -- 2 MR. HARVEY STROSBERG: All right. It's 3 F-420, thank you. They're all F-420's aren't they. 4 COMMISSIONER SIDNEY LINDEN: No, mine 5 are -- 6 MR. HARVEY STROSBERG: It says page 9 of 7 24. 8 COMMISSIONER SIDNEY LINDEN: Yes, that's 9 the page I was looking for, page 9 -- 10 MR. HARVEY STROSBERG: Nine (9) of -- 11 COMMISSIONER SIDNEY LINDEN: -- of 24. 12 MR. HARVEY STROSBERG: -- 24. 13 COMMISSIONER SIDNEY LINDEN: Nine (9) of 14 23? 15 MR. HARVEY STROSBERG: Nine (9) of -- 16 mine says 9 of 24. 17 COMMISSIONER SIDNEY LINDEN: All right. 18 And it's dated with the time and the date? 19 MR. HARVEY STROSBERG: Yes. In any 20 event, do you have that, Mr. Harnick? 21 THE WITNESS: Yes, I do. 22 23 CONTINUED BY MR. HARVEY STROSBERG: 24 Q: And you'll notice at -- at the second 25 last notation in 1995/11/06, Notice of Withdrawal?
1941 A: Yes. 2 Q: Were you aware that in this case not 3 only Ontario delivered a notice of withdrawal of its 4 factum, but the Attorney General of Quebec also did? 5 A: I see that. I wasn't aware of that. 6 Q: And then on the next page, 7 1995/10/31, that the Attorney General of Saskatchewan 8 delivered a notice of withdrawal? 9 A: Yes, I see that. 10 Q: And that then on the next page, which 11 is 1995/09/29, there's a notice of withdrawal by the 12 Attorney General of -- of Ontario? 13 A: Yes. 14 Q: And then at the bottom of the page, 15 1995, September 21 the Attorney General of Newfoundland 16 withdrew? 17 A: Yes. 18 Q: And therefore it appears that the 19 only note -- Attorney General that was left was the 20 Attorney General of Alberta as an Intervenor? 21 A: Yes, sir. 22 Q: All right. Thank you. Now -- 23 OBJ MR. JULIAN FALCONER: Mr. Commissioner, I 24 have an objection. And I don't criticize Mr. Strosberg, 25 he's just -- he's just inaccurate in regard to the style
1951 of cause indicates that the Attorney General -- it's at 2 Tab 3, the front page, the Attorney General for British 3 Columbia, the Attorney General for Alberta, are both 4 reflected in the style of cause as participants. 5 MR. HARVEY STROSBERG: Oh, right. Well, 6 we can deal with that in argument. I don't believe My 7 Friend is wrong about that, but I'll deal with that in 8 due course. 9 10 CONTINUED BY MR. HARVEY STROSBERG: 11 Q: Now, there was reference to an 12 examination for discovery of you in an action commenced 13 by the George family under the Family Law Act under 14 Section 66 -- section -- the -- arising out of the death 15 of Mr. George? 16 A: Yes. 17 Q: And you were sued in your capacity as 18 the Attorney General? 19 A: I was. 20 Q: And did you pay any amount to settle 21 this action? 22 A: None. 23 Q: Was any amount paid on your behalf? 24 A: Not that I am aware of. 25 Q: And -- and did you -- well, did this
1961 action ever go to trial? 2 A: No, it did not. 3 Q: Now, there's ref -- there's been 4 reference to -- to the dining room meeting, and you were 5 asked the question about whether you contradicted or 6 commented to Mr. Harris about his comment. Did you -- if 7 you had not concluded that Mr. -- that the Premier had 8 regretted his remark, would you have said anything? 9 A: Yes. 10 Q: And what would you have said? 11 A: I would have said that that remark is 12 completely inappropriate, and it shouldn't be a remark 13 that -- that would be made in a situation like this or 14 any other situation, and that -- that it would be 15 something that would -- that shouldn't be -- shouldn't be 16 part and parcel of a decision that we would be making in 17 terms of next steps and how to proceed. 18 Q: And did you -- there -- there was 19 some suggestion in cross-examination that -- that the -- 20 the Premier's remark was evidence of -- of racism, and 21 you've said that that was not the case? 22 A: That's what I said. 23 Q: And did you -- what was your 24 relationship with the Aboriginal community during your 25 course as Attorney General and Minister in charge of
1971 Aboriginal Affairs? 2 A: I thought that I had a positive 3 relationship with -- with Aboriginal people. I thought 4 that we, as a government and personally, had some 5 significant achievements over the -- over the four (4) 6 year period. 7 We had five (5) agreements in principle on 8 land claims that were settled. I -- I became personally 9 involved in many of those. I can tell you that it was 10 another claim that -- the agreement in principle came 11 more recently but it was a claim that I ensured was given 12 a very timely review so that it could be brought into the 13 negotiation process and it's now -- now been settled. 14 And I'm referring to the Rainy River 15 claim. We -- we had an economic development program that 16 the current government continues to run that the former 17 Minister of Native Affairs, about a year or so ago, 18 accepted an award for. 19 So, I'm very proud of those achievements. 20 I'm very proud of the fact that -- that I was able to 21 make appointments of Aboriginal people to places that 22 they had never been appointed to. And -- and I thought 23 that that was -- was a very significant -- very 24 significant achievement. 25 Q: And why did you do that?
1981 A: Because I think that it's very 2 important that the viewpoint that Aboriginal people bring 3 to the institution of government and to our court system 4 are very -- are very important. And I think that they 5 bring certainly something that -- that is very valuable 6 for us in terms of the kinds of decisions that are 7 systemically made. 8 And by that I mean within a plan like the 9 Legal Aid plan or the kinds of decisions that are made 10 when we're appointing judges or, indeed, the viewpoint 11 that they would bring to the -- to the benches as 12 judicial appointments. 13 Q: Did racism or prejudice play any part 14 in the decision making relating to the Ipperwash problem? 15 A: It did not. 16 MR. JULIAN FALCONER: Excuse me, 17 Commissioner. That question was framed to not only cover 18 decision making -- 19 COMMISSIONER SIDNEY LINDEN: Maybe it -- 20 MR. JULIAN FALCONER: -- that this 21 witness was part of. But -- 22 COMMISSIONER SIDNEY LINDEN: It may be a 23 bit too broad of a question of this witness, Mr. 24 Strosberg. 25 MR. HARVEY STROSBERG: Did --
1991 COMMISSIONER SIDNEY LINDEN: Perhaps you 2 can ask him what he -- 3 4 CONTINUED BY MR. HARVEY STROSBERG: 5 Q: To the best of your knowledge, 6 information and belief, did racism or prejudice play any 7 part in the decision making of Ipperwash that you were 8 involved in or of which you are aware? 9 A: No. 10 Q: Now, you made reference to the 11 guidelines. You called them the protocol? 12 A: Yes. 13 Q: And could you turn up the protocol? 14 A: That's the set at Tab 10. 15 Q: Tab 10, I believe. 16 A: Yes. 17 Q: To your -- 18 MR. DONALD WORME: P-498. 19 MR. HARVEY STROSBERG: Thank you. 20 21 CONTINUED BY MR. HARVEY STROSBERG: 22 Q: To your knowledge, did the issuance 23 or the attempt to obtain an injunction, in and of itself, 24 mean that there was no -- no ability at some later point 25 to -- to involve a facilitator or negotiator?
2001 A: No, that was always -- I mean, would 2 -- would continue to be an option. 3 Q: And -- and so when you look at 4 paragraph 11 of the guidelines, was it -- were these 5 options that were available to be used at any time or 6 were those options that had to be dealt with in the Order 7 that they're set out from A to G? 8 A: I -- I would read this and understand 9 this to be that those are things that you could refer to 10 at any time. 11 Q: And... 12 13 (BRIEF PAUSE) 14 15 Q: Yesterday, you were asked the 16 question of why you didn't disclose the statement that 17 you had talked about, about Mr. Harnick, and you said 18 that you weren't asked. 19 Did you want to clarify that? 20 A: I -- I was never asked, under oath, 21 specifically what was said. 22 Q: And was that what you meant by your 23 answer? 24 A: Yes. 25 Q: Did you -- did you do anything, you
2011 personally, directly or indirectly, that caused Mr. Deane 2 to shoot Dudley George? 3 A: Absolutely not. 4 Q: Did -- in your opinion, did the 5 decision to seek an injunction cause Mr. Deane to shoot 6 Mr. George? 7 OBJ MR. JULIAN FALCONER: I object, Mr. 8 Commissioner. Objection. This is clearly issues that 9 you, Mr. Commissioner, will have to make findings on. My 10 Friend eloquently spoke to the elicitation of opinion 11 evidence in the past. 12 And he's now seeking opinion evidence on 13 the very matters that go to the heart of this 14 Commission's mandate. So my submission is it's not -- 15 COMMISSIONER SIDNEY LINDEN: I don't find 16 that a helpful question, that I wouldn't find the answer 17 helpful. 18 19 CONTINUED BY MR. HARVEY STROSBERG: 20 Q: Thank you. With -- with the benefit 21 of hindsight, would you personally have done anything 22 different on September 5 or September 6, 1995? 23 A: I -- I -- as I said, part of the role 24 of this Commission is to take a look at the guidelines. 25 But given what the guidelines were at the time, my
2021 concern was that we follow the guidelines. 2 And -- and I believe that we did follow 3 the guidelines and we -- we followed the process set out 4 in the guidelines. So given what they are I -- I think 5 that I'm satisfied that this was the -- the proper 6 approach. 7 I -- I regret that things happened that 8 caused a tragedy but I -- I don't think it was as a 9 result of following the procedures from the guidelines 10 that that tragedy flowed. 11 Q: Thank you. I have no further 12 questions. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Strosberg. 15 Mr. Worme...? 16 17 RE-DIRECT EXAMINATION BY MR. DONALD WORME: 18 Q: I only have one -- one area to cover 19 with -- with Mr. Harnick. 20 I appreciate, Mr. Harnick, that you've 21 clarified your response to your counsel as to why you 22 didn't disclose this until -- until you were here on the 23 stand. And as I understand it, it was because it was 24 under oath. 25 But you will agree with me that I put the
2031 question directly to you in our preparatory meeting of 2 November the 18th. And I -- and I understand, obviously, 3 it wasn't under oath, but that question was put to you. 4 You can agree with that? 5 MR. HARVEY STROSBERG: That -- that -- 6 any preparatory meeting that was put with counsel is a 7 matter that was -- was, I understood, to be dealt with on 8 a preparatory basis. And unless this counsel's going to 9 get in the witness box and let me cross-examine him about 10 what was said and the circumstances under which it was 11 said, I say the question is improper. 12 COMMISSIONER SIDNEY LINDEN: I'm not sure 13 where you're going with this. 14 MR. DONALD WORME: Well the point simply 15 -- the point simply is -- 16 OBJ MR. JULIAN FALCONER: I have an objection 17 as well to raise. My objection is this, it concerns, 18 certainly, many of the parties here at the proceedings 19 that My Friend, Mr. Strosberg, elicited from this witness 20 that last answer which is: I only didn't speak because I 21 wasn't under oath. 22 And it's important that your counsel 23 inquire into this issue because that answer only came up 24 from Mr. Strosberg's question at the end. So none of us 25 get to inquire into this new revelation that the only
2041 reason he didn't come forward about it is he wasn't under 2 oath, per say. So it's got to be looked into. 3 COMMISSIONER SIDNEY LINDEN: I'm not sure 4 where we're going with this, Mr. Worme. Just wait a 5 minute. I'm not sure where we're going with this. 6 MR. DONALD WORME: I wasn't going to go 7 any further than simply that, Mr. Commissioner. But I 8 cannot accept that -- to leave that on the record that, 9 as Commission counsel, we were somehow derelict in our 10 duty, any suggestion or innuendo that we didn't do our 11 duty in terms of investigating this matter. 12 I didn't intend and nor do I intend to go 13 any further than that, sir. 14 OBJ MR. HARVEY STROSBERG: There was no -- 15 there was no suggestion that Commission counsel did -- 16 was derelict and I think that that -- that suggestion by 17 -- by counsel is -- is misconstrued unless -- unless they 18 say that they've examined witnesses under oath 19 previously, no one has suggested that that was the case. 20 And I don't understand the response. But 21 -- but they're not entitled to, in my submission, to ask 22 the question that was asked here, I object to that -- to 23 that question. And there's no transcript of -- of what 24 Mr. Worme said. 25 There was a transcript of -- of an
2051 interview that was done previously but now we're talking 2 about what was said between Commission Counsel and a 3 witness in preparation for that person to go on the 4 witness box. And that's not something that you want to 5 get involved in and ask -- and have those questions asked 6 and answered. 7 COMMISSIONER SIDNEY LINDEN: Yes...? 8 MR. PETER ROSENTHAL: Sorry, Mr. 9 Commissioner, but for those of us who are not in the 10 loop, which include me, can -- can we, first off, have on 11 the record, the conclusion? 12 I gather from what Mr. Worme is saying, 13 that this witness was asked on November 18 the direct 14 question and did not give the answer, but I don't think 15 that that's on the record, as to whether -- 16 MR. DONALD WORME: Well, that -- 17 MR. PETER ROSENTHAL: -- that's the 18 situation. 19 MR. DONALD WORME: And again, I'm sorry 20 to interrupt My Friend but that is not on the record. 21 I'm not in a position to give evidence. I simply asked 22 the witness if he could agree with me, either he does or 23 he doesn't. 24 COMMISSIONER SIDNEY LINDEN: We're having 25 a lot of action here and I'm not sure exactly where we
2061 are with this. 2 MR. JULIAN FALCONER: No but Mr. -- 3 MR. PETER ROSENTHAL: May I -- may I just 4 say the second point that I wished to make, was I agree 5 with Mr. Falconer that we now have, coming from his 6 Counsel at the end when we presumably would not get the 7 chance to examine about it, but you might wish to 8 consider that -- this assertion that the reason was 9 because he was not under oath. 10 And, of course, it raises the question of 11 did he not understand that he was under oath when he was 12 giving answers at the examination for discovery. 13 MR. JULIAN FALCONER: But it also -- 14 MR. PETER ROSENTHAL: In my respectful 15 submission, we should be allowed to cross-examine on that 16 one area. 17 COMMISSIONER SIDNEY LINDEN: We're 18 getting way off here -- 19 MR. JULIAN FALCONER: No, but I don't -- 20 COMMISSIONER SIDNEY LINDEN: -- and I 21 don't want to go any further. 22 MR. JULIAN FALCONER: But I made an 23 objection -- 24 COMMISSIONER SIDNEY LINDEN: Are you 25 going to proceed with this --
2071 MR. JULIAN FALCONER: Mr. -- 2 COMMISSIONER SIDNEY LINDEN: -- or are 3 you going to leave this? 4 MR. JULIAN FALCONER: Mr. Commissioner, I 5 made an objection -- 6 COMMISSIONER SIDNEY LINDEN: Because I 7 don't want to go any further with this. 8 MR. JULIAN FALCONER: But, Mr. 9 Commissioner, I made an objection and -- and Mr. 10 Strosberg responded. And the only difficulty Aboriginal 11 Legal Services of Toronto has -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN FALCONER: -- is it goes to 14 the heart of -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: -- the integrity of 17 your process. The obligation to be candid with your 18 Counsel in the interview setting -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. JULIAN FALCONER: -- is key. And if 21 a witness's evidence at the end of the day is, I was not 22 fully candid because I was not under oath, the 23 implications of that are extraordinary. So -- 24 COMMISSIONER SIDNEY LINDEN: Thank you, 25 Mr. Falconer.
2081 MR. JULIAN FALCONER: Well, but -- 2 COMMISSIONER SIDNEY LINDEN: I've heard 3 enough on this point. I've heard enough. 4 MR. JULIAN FALCONER: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 Do you want to say any more? 7 MR. DONALD WORME: I do not, Mr. 8 Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Do you want 10 to proceed with this area? 11 MR. DONALD WORME: I do not. 12 COMMISSIONER SIDNEY LINDEN: I would like 13 to bring it to a conclusion. 14 Yes...? 15 MR. DOUGLAS SULMAN: There is -- 16 COMMISSIONER SIDNEY LINDEN: Mr. Sulman, 17 do you have something to say about this matter? 18 MR. DOUGLAS SULMAN: Yes. I have a grave 19 concern. The issue of asking witnesses questions in what 20 they may have given in interviews, I think we need to 21 know that, those of us who have -- whose witnesses have 22 not come forward yet. 23 We all know that there -- there was a 24 caution given when -- when there were some transcripts 25 prepared that were to be helpful notes. It was on the
2091 basis of none of that being the ability to be cross- 2 examined on them. And we need to know that that is the 3 fact -- 4 COMMISSIONER SIDNEY LINDEN: That is the 5 position -- 6 MR. DOUGLAS SULMAN: -- and we need to 7 know that they're not going to be asked questions about 8 their preparatory time. 9 COMMISSIONER SIDNEY LINDEN: That is the 10 position. 11 MR. DOUGLAS SULMAN: Thank you. 12 COMMISSIONER SIDNEY LINDEN: That is the 13 position. 14 MR. DOUGLAS SULMAN: Thank you, Your 15 Honour. 16 MR. JULIAN FALCONER: Unless they put it 17 in issue. They put in issue though. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 Thank you, Mr. Falconer. Anything else? 20 MR. DONALD WORME: I do not, other than I 21 do want to thank Mr. Harnick for coming here and sharing 22 his testimony with us. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much, Mr. Harnick, for coming and giving us your 25 evidence.
2101 THE WITNESS: Thank you. 2 COMMISSIONER SIDNEY LINDEN: I know it 3 was difficult for you and I appreciate it. Thank you. 4 5 (WITNESS STANDS DOWN) 6 7 COMMISSIONER SIDNEY LINDEN: We will now 8 adjourn for lunch. 9 THE REGISTRAR: This Inquiry stands 10 adjourned until 1:45. 11 12 --- Upon recessing at 12:28 p.m. 13 --- Upon resuming at 1:47 p.m. 14 15 THE REGISTRAR: This Inquiry is now in 16 session, please be seated. 17 COMMISSIONER SIDNEY LINDEN: Good 18 afternoon. 19 MS. ELAINE TODRES: Mr. Commissioner. 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER SIDNEY LINDEN: I'd just add 24 before we start, you have some comment that you'd like to 25 make.
2111 2 (BRIEF PAUSE) 3 4 MR. DONALD WORME: Hi, everyone. Good 5 afternoon, Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Good 7 afternoon, Mr. Worme. 8 MR. DONALD WORME: The next witness we 9 would call is Dr. Elaine Todres. 10 11 ELAINE MELLER TODRES, Sworn on the Torah 12 13 EXAMINATION-IN-CHIEF BY MR. DONALD WORME: 14 Q: Dr. Todres, welcome, first of all 15 and -- 16 A: Thank you. 17 Q: You have a book of documents in front 18 of you which I'll ask you to keep and I'll refer you to 19 certain documents from time to time. 20 And the first thing that I would do, is I 21 would ask you to turn to Tab Number 1 which you will 22 recognize as your curriculum vitae. 23 My Friends will know that this has been 24 distributed earlier, electronically, so they will have 25 copies of this as well.
2121 And I wonder, Dr. Todres, if you would 2 just simply go through your curriculum vitae for us so 3 that we understand the credentials that you bring to this 4 -- to this Inquiry. 5 A: Very well. Perhaps I might -- I'll 6 try to do this succinctly and -- and provide what I think 7 might be relevant material, with respect to the work of 8 the 9 Commission. 10 I did my doctorate in Federal Provincial 11 Relations and in Political Theory and Political Science 12 at the University of Pittsburgh under the tutorship of a 13 man is recognized to be one of the greatest public policy 14 scholars in the United States. 15 And as a Canadian who expected to return 16 to Canada I knew that if my doctorate was not dealing 17 with Federal Provincial Relations, I wasn't likely to get 18 a job. And so I made sure that I was on a subject that 19 was relevant. It happened to be on the politics of 20 taxation. 21 But it placed me in an environment where I 22 learned on the ground and through a lot of interviews 23 with politicians and bureaucrats how Federal, Provincial, 24 and Inter-Provincial politics and bureaucracy operates in 25 Canada.
2131 And I'll move along. I -- I worked in the 2 Ministry of Revenue and moved up in the bureaucracy. But 3 I think for the purposes of the Commission, what was 4 interesting was my stint in the Ontario Women's 5 Directorate, which in many ways is a functional analog to 6 ONAS. 7 The Ontario Women's Directorate was 8 established in, I believe, 1983. I came over as a policy 9 analyst, quickly became the Director of Policy and then 10 became the Assistant Deputy Minister in 1986. 11 I worked under both Conservative and 12 Liberal regimes in both majority and minority 13 governments. I reported in that function as a Deputy -- 14 as an ADM, as an Assistant Deputy Minister to the 15 Attorney General of the Province at that time, Ian Scott, 16 and was given the specific responsibility for the 17 developing -- the Development of Legislation and Pay 18 Equity. 19 And in that capacity as the Assistant 20 Deputy Minister of Ontario Women's Directorate, worked 21 with all of the secretariats dealing fundamentally with 22 the issue of systemic discrimination. 23 ONAS, the directorate dealing with matters 24 pertaining to the disabled, the groups that were dealing 25 with racial minorities. We had finished the Bill. The
2141 Bill was tabled on pay equity and implemented, as I say, 2 under a minority regime. 3 The government of the day fell, there was 4 an election with the Liberal majority and I was appointed 5 the Deputy Minister of Human Resources and a secretary -- 6 or the Chair of the Civil Service Commission. 7 In that particular capacity, if I could 8 use the private sector and analogy I would have been 9 considered to be the Executive Vice-President of Human 10 Resources for the Ontario Government. 11 The Civil Service then was the size of one 12 hundred thousand (100,000) and in that capacity the 13 Government of the day was extremely interested in 14 enhancing the importance of human resources in -- in 15 decision making. 16 So we were -- I was given the task of 17 revising most of the infrastructure of the Government. 18 How you bargain, what the nature of the bargaining 19 relationships were. I was also given the task of 20 actually implementing the bargaining of employment equity 21 or the pay equity for the city -- for the Province of 22 Ontario. 23 And in that -- in that vein would have, 24 and I don't think we need to go into details now, but 25 would have constructed anywhere from ten (10) to twenty
2151 (20) Interministerial Committees with relevant deputies 2 to get the job done on a variety of fronts. 3 I did that for three (3) to four (4) 4 years. And I think for the purpose of today what's 5 extremely important, was I came into contact with the 6 most difficult of the labour relations components of the 7 Government and that is corrections. 8 Corrections was and is still the most 9 difficult area from a labour relations point of view. 10 And I spent a great deal of time working with the then 11 Deputy Minister of Corrections in the details and in the 12 difficulties that they would have dealt with, in the 13 course of which, of course, I touched on issues like 14 employment equity and non-smoking in jails and all that 15 sort of thing. 16 In 1990 I was appointed the Deputy 17 Minister of Culture and Communications. And I suppose if 18 there's a common theme in my resume is that I was 19 considered to be a policy deputy. That doesn't mean that 20 I wasn't interested in operations, but I was usually 21 moved to areas where there was a high priority from the 22 Government of the day to introduce new policy, new 23 frameworks, new legislation. 24 In the field of Culture and 25 Communications, not only did I have an arm's length
2161 relationship with twenty-six (26) varying agencies from 2 TVO, the broadcaster, to a variety of cultural agencies. 3 I was responsible for developing Ontario's 4 position with respect to telephony. This was at the 5 point where the Federal Government through the CRTC was 6 looking at deregulating telephony. In addition to which 7 I was asked to work on cultural strategies in cultural 8 industries and in the telecommunications and information 9 technology area. 10 That ministry had a large field structure 11 and was important not because of its size but because of 12 the nature of the people who sit on the boards of 13 agencies. That was a time of constraint and we had a lot 14 of very difficult issues and a lot of issue management. 15 You'll recall for example that the VGO (phonetic), the 16 Ontario Art Gallery was dark for a member of years. 17 In any event, that ministry transmogrified 18 into a number of forums and eventually became Culture, 19 Tourism, and Recreation. And I was given the unlikely, 20 from my family's perspective, responsibility for sport, 21 and that too proved to be interesting, huge expectations 22 and very little money, large grant programs and a huge 23 infrastructure. 24 There are something like one hundred 25 thousand (100,000) volunteers in Ontario in volunteer
2171 sport alone. So touching every community, and again a 2 series of policy prescriptives. 3 When the Government fell when there was an 4 election and we had a new government in 1995 I was 5 appointed the Deputy Minister of the Solicitor General 6 and the Deputy Minister of Corrections. 7 We had an enormous -- the Ministry staff 8 was fifteen thousand six hundred (15,600), but when you 9 added all of our staff it was a total of sixty thousand 10 (60,000) people who were reporting within that framework, 11 a very large and complex ministry, joined ministry. 12 And as my -- my sense of it was that I was 13 placed in that position because there were a series of 14 major policy issues that the Government of the day, not 15 to mention labour relations issues, that it wanted to 16 sort out and it felt that my background might be suited 17 to this -- this very large ministry. 18 I stayed there for two (2) years and then 19 moved into -- as you can see I worked in a -- in the 20 hospital sector as the CEO of a foundation and discovered 21 that it is easier to spend money than it is to raise 22 money. I did that for three (3) years. It was very 23 challenging and very enjoyable. And then established my 24 firm in the year 2000 where we concentrate on strategy 25 and governance and mediation.
2181 Q: All right. Let me just -- thank you 2 for that, Dr. Todres. Let me just take you back to your 3 position as Deputy Minister, initially, of the Ministry 4 of Culture and Communications. 5 A: Hmm hmm. 6 Q: You've indicated that commenced in 7 1991 -- 8 A: Hmm hmm. 9 Q: -- and to use your words 10 transmogrified into the Ministry of Culture, Tourism, and 11 Recreation. 12 Just with respect to that latter ministry, 13 that is the ministry that would be in charge of for 14 example the Cemeteries Act; am I right? 15 A: Well, it was actually responsible for 16 the Archives, the Provincial Archives. So it was then 17 that I became aware of the relationship between legal 18 pursuits on Native claims/land claims and the necessity 19 to turn to the Archive for information. 20 And we would have also dealt with the 21 Heritage Act and a variety of -- there was one (1) 22 particular piece of legislation, the name of which 23 escapes me, where we were concerned about bones and the 24 discovery of architect -- archeological artifacts. 25 The actual responsibility for cemeteries
2191 and such were clearly placed within the Ministry of what 2 we then called CCR, Consumer and Corporate Relations, 3 that had a branch specifically dealing with cemeteries. 4 Q: And in terms of the -- the number of 5 staff within that ministry, Culture, Tourism, and 6 Recreation do -- do you have any recollection of how many 7 staff, as the Deputy Minister, you would have oversight? 8 A: It was by this -- well, by -- of 9 course it was insignificant from the perspective of 10 Solicitor General and Corrections, but it might have been 11 five (5) or six hundred (600) people. 12 Q: And -- and a budget? 13 A: I don't recall. 14 Q: Do you recall the -- you've -- you've 15 already told us some sixty thousand (60,000) staff in 16 total at the Deputy -- pardon me at the Solicitor General 17 and Corrections Ministry. And do you know what the 18 budget would have been in -- in that ministry? 19 A: Well, I believed it was somewhere 20 around 1.2 billion. 21 Q: And -- and just as a general 22 description what would that ministry be responsible for? 23 24 (BRIEF PAUSE) 25
2201 A: Well, simply put, I used to describe 2 it to myself, not to others, as the Ministry responsible 3 for -- as the -- who is the enforcement arm of the State 4 in a sense. 5 It's had a variety of configurations. 6 There was a time, I remember, under Chief Justice 7 McMurtry's era when he was the Solicitor General, when he 8 was both the Solicitor General and the Attorney General. 9 But shortly after that period, it became 10 customary to separate the responsibilities as between the 11 Solicitor General and corrections -- and the Attorney 12 General. 13 And then as we moved toward -- there was a 14 movement in the Government in the early '90's, the notion 15 being that aggregation of large Ministries would improve 16 economies of scope and scale. 17 There was a notion that there was so much 18 inter-relationship between Corrections and Gen, it would 19 be a good idea to put them together. 20 So, what were we responsible for? We had 21 an assistant deputy Minister of -- of Policing Services-- 22 Q: All right. 23 A: That Assistant Deputy Minister would 24 have been responsible for the development of policy with 25 respect to municipal policing.
2211 That person would have been responsible 2 for investigations should there have been allegations of 3 corruption or misdoing in a particular force. Never 4 involved in, of course, the sep -- never being involved 5 in a -- in the operations. 6 But municipal regulation of municipal 7 police; that is to say provincial regulation and 8 municipal police. 9 We had the Coroner's office function and 10 with all that is attendant to it, including the Coroner's 11 Courts. 12 We had the Office of Emergency Measures, 13 that would have dealt with nuclear disasters, provincial- 14 wide emergencies and that would have included -- that 15 particular division also included firefighters and the 16 regulation of the Chief Firefighter. 17 I've forgotten his exact title, but there 18 is an actual uberboss of -- of all of this -- of the 19 firefighting organization, so that, for example, we would 20 have also been responsible for the firefighting school 21 that actually is the training ground for fire fighters in 22 Ontario. 23 We had a division, as all Ministries do, a 24 Chief Administrative Officer that would have dealt with 25 estimates and funding and human resources and so on.
2221 We had the Assistant Deputy Minister of 2 Corrections -- 3 Q: Perhaps I can just interrupt you 4 briefly if I may, Dr. Todres. You'll see up on the 5 screen -- 6 A: Oh, there it is. 7 Q: You were good enough to put together 8 a document which has been distributed both 9 electronically, as well as hard copies are available, and 10 you should have a pointer in front of you, and I ought to 11 have really asked -- put this up earlier -- 12 A: Oh, sure. 13 Q: -- and I apologize for that, in order 14 to facilitate your testimony. 15 So if you want to just go ahead and refer 16 to that document. First of all, you prepared that 17 document and -- and provided that to us today? 18 A: Well, thank you. Perhaps what I 19 might do is bottom up. I've constructed this -- I've 20 just dropped something -- 21 Q: Okay. 22 A: -- from the top down. But since we 23 were in the midst of discussing the divisions, why don't 24 I - shall I continue in that way? 25 Q: Yes, please and I'd ask you just to
2231 perhaps, ensure that -- either use the microphone that's 2 sitting on the table there -- 3 A: Thank you. 4 Q: Or ensure that the microphone in 5 front of you is properly picking up your voice so the 6 transcript -- 7 A: Okay. 8 Q: -- can be -- can be prepared. 9 A: So if we look at -- if we look at 10 this particular function, the ADM of Municipal Policing. 11 So, first of all, you'll see that the 12 Ministry had -- the deputy Minister had many people 13 reporting directly to it. 14 So, on our left, we would have had the ADM 15 of Municipal Policing and that person, to give you a 16 sense perhaps, I might illustrate with some of the 17 subject matter that that ADM might have been preoccupied 18 with. 19 We were looking at revisions to the Police 20 Services Act; we were looking at changes to civilian 21 oversight of policing; we were looking at the regulation 22 of private detectives, and that would have been the 23 responsibility of that ADM. 24 It had a number of branches; I don't 25 recall the specific structure at the moment, but he would
2241 have had directly liaison and would have been responsible 2 for identifying issues, working on policy, keeping me 3 informed of whatever issues I, and in turn the Minister, 4 would be needing to know. 5 This is the Office of the Chief Coroner. 6 And he had his headquarters in a regional structure as 7 many of you will be aware, of Coroners around the 8 Province. And his particular issues revolved not around 9 -- not only around what actually happened in Court but 10 they had serious infrastructure issues and still do 11 today; very inadequate facilities. 12 The ADM of Emergencies, at some point I 13 think we actually combined this particular program but 14 this was the Emergency Measures Office and Firefighters. 15 And this office was terribly important in functions like 16 that dreadful winter where there was an electricity 17 burnout and people were without electricity for a large 18 period of time. 19 The reason I'm going on in some detail, is 20 to paint the picture of just how many issues you can 21 imagine would be falling below the responsibility level 22 of every ADM. The ADM of Corrections, a very, very 23 difficult job. 24 And by the way I should point out that 25 each of these ADM's would have likely had a small
2251 contingent of people supporting that particular office 2 that would be dealing with issues and briefing notes 3 because they also had large field structures. And that 4 would be the mechanism by which they ascertained 5 information. 6 The Corrections job, a very, very 7 difficult one indeed. And as I recall we had at least 8 three (3) divisions. One (1) was adult supervision. 9 You'll remember perhaps at the time that the jurisdiction 10 for young offenders was divided as between the Ministry 11 of Community and Social Services and the Ministry of the 12 Solicitor General and Corrections. 13 We were responsible for the older youth 14 and the younger youth were the responsibility of 15 Community and Social Services. We were in fact the only 16 province in the country that had that particular division 17 and it brought forward a whole host of -- of issues. And 18 of course, we had parole and probation. 19 This area was also given the task of a 20 large set of new issues. The Government of the day was 21 interested in the privatization of jails and what led 22 ultimately to the construction of three (3) super jails 23 in Ontario; Maplehurst, Penetang and Lindsey. And they 24 have slightly different titles now but those are the 25 locations.
2261 So, a -- a very serious set of 2 responsibilities with a very large regional 3 infrastructure and enormous sets of issues that would 4 arise every single day with monotonous regularity. 5 Then of course the Commissioner of the 6 OPP, who reported to me directly. He or she too had a 7 support team directly reporting to the Office of the 8 Commissioner of the OPP. And I can't recall in detail 9 their structure but I -- I recall there being at least 10 three (3) Deputy Commissioners. 11 One (1) would have been responsible for 12 the field; one (1) would have been responsible for 13 policy; and one (1) was responsible for infrastructure. 14 The OPP was far ahead from all municipal police forces in 15 terms of technology, and so on. 16 And in this particular line of the change 17 of command, you'd have gone from the Incident Commander 18 all the way up through the normal chain through to the 19 Deputy Commissioner, through the OPP. 20 The support function from briefing notes 21 and so on would have been attached to the Commissioner's 22 office just as you would have seen that in -- in other 23 divisions. 24 And finally, I had this Chief 25 Administrative Officer who was responsible for human
2271 resources and information technology and finances; 2 actually keeping track of all of these expenditures and 3 ensuring that we were not in variance with the dollars 4 that would have been appropriated to us through the 5 Legislature. 6 So, this is the gang that reported to me. 7 This was my Senior Management Team. I would have met 8 with that Senior Management Team usually once a week. We 9 had other structures and if you're interested we can go 10 into that should you wish to. 11 My office, I apologize for the size of the 12 font, I try where all possible to -- to print legibly but 13 I think it's important for us to see who actually 14 reported to me directly in addition to the ADM's. 15 So I had an Issues Unit which was one (1) 16 of the largest Issue Units in the Government. Probably 17 as large, if not larger, that the Ministry of Health. 18 And that was simply a function of the number of issues 19 that we had ongoing at any one (1) particular time. 20 I had my Legal Services Branch reporting 21 to me, as other deputies would. I had a Communications 22 Branch reporting to me directly. And I had a tiny little 23 Investigations Unit that was dealing with sexual 24 harassment matters. 25 The Ministry of Solicitor General and
2281 Corrections accounts for something like 95 percent of the 2 issues before the Provincial Ombudsman and accounts 3 mostly emanating from the accused. And probably, I can't 4 give you statistics, I can tell you as a Deputy it feels 5 like we were responsible for 99 percent of the sexual 6 harassment allegations as between staff and one another, 7 mostly emanating from Corrections. 8 I was particularly sensitive to this area 9 because there were a number of Deputy Ministers in the 10 past in this particular field, who were fired as a result 11 of not taking appropriate steps in dealing with sexual 12 harassment. I would have seen the people who were 13 involved in this on almost a daily basis and if there 14 were matters of alleged criminality the OPP would have 15 been involved in official investigations. 16 On the other side was the executive 17 assistant and the administrative staff. Tony Vander Voet 18 was my initial executive assistant. I would have had the 19 Aboriginal police advisors Ron Fox and Scott Patrick. 20 They were located in this unit here because of the 21 unusual nature of the work; the negotiations that they 22 were working on in terms of Aboriginal policing were 23 intergovernmental. 24 And as a result of the nature of their 25 work they belonged in a place other than here and they
2291 reported directly to me, as they had for some time in the 2 past, for that particular ministry. 3 I also had policy advisors reporting to me 4 directly from both the policing and the corrections 5 perspective. So I would have had someone from 6 Corrections close to me who could give me a second 7 opinion as issues were bubbling forward as well as 8 someone from Policing; that was Barb Taylor in this 9 particular position. 10 I reported as all, as all deputy ministers 11 do, to both the Minister and the Cabinet Secretary. And 12 if I could just point out, I -- I'm sure this has been 13 covered before, but the way I've done this -- set up this 14 diagram is very deliberate. The bureaucratic side was 15 over here; the political side was over here. So the way 16 in which governments of Ontario have managed the overall 17 agenda is to have divided the persons who are the primus 18 inter pares, the most senior of the deputies. 19 The most senior deputy, from a Deputy 20 Minister's point of view, was the Secretary of Cabinet. 21 It would be through the Secretary of Cabinet that I would 22 officially receive instructions. I would have had to 23 write a performance agreement detailing what it is that I 24 was committed to doing in light of what the Government's 25 agenda was and I would have had very regular contact with
2301 the Secretary of Cabinet. 2 I served at the pleasure of the Crown and 3 -- which means I could be let go at the pleasure of the 4 Crown. I reported directly to the Minister. 5 The second arm, from the Premier's 6 perspective, is the Principle Secretary and this was the 7 political arm of government. These were the folks who 8 were making sure that whatever was arising from the -- 9 from bureaucracy was in alignment with the political 10 directions and the policy of -- directions of the 11 Government of the day. 12 So in that particular office, David 13 Linsdey, in those days, was the Principle Secretary. You 14 would have had an issues unit, you would have had a 15 legislative unit, and you would have had a series of 16 policy folks. 17 And just as there were policy folks here 18 in the Secretary of Cabinet you would have had a 19 communications function. And what I mean by policy, 20 there would have been a unit dealing with justice 21 matters, a unit dealing with social issues, a unit 22 dealing with regulatory issues and that was mirrored on 23 this side as well. And their job was to synthesize, from 24 their particular perch, what might not be obvious from a 25 line ministries point of view.
2311 The Minister had a Chief of Staff or -- 2 and -- and they were either called executive assistants 3 or chiefs of staff. And the ministers of the day would 4 have traditionally a legislative person whose 5 responsibility it was for briefing prior to Question 6 Period, tracking what was happening in the various 7 legislative committees, ensuring that Hansard, and so on, 8 was all delivered. 9 There would always be a communications 10 person or unit. There would be a constituency person 11 that was dealing with partisan matters and there would be 12 a series of policy folks. 13 So simply put, my responsibility was to 14 run an extremely large and complex ministry that had very 15 large -- oh, and I forgot one (1) thing that is 16 important. I may not have put it on this particular -- 17 and forgive me. 18 In addition to this we had four (4) or 19 five (5) agencies that reported directly to us. And in 20 practice, while the Parole Board on paper reported 21 legally to the Minister, it would be my role to make sure 22 that there were very regular contacts with those agencies 23 to determine when and where, in their governance 24 machinery, there might have been issues. 25 So, I don't recall all of them, but we
2321 would have had the civilian oversight, we would have had 2 the Parole Board, there probably were three (3) or four 3 (4) others. 4 So in addition to seeing all of these 5 people on a weekly basis I would have had a weekly 6 appointment with each person that reported to me directly 7 and I would have had very regularized appointments with 8 the civil servants who were the respective executives of 9 these various agencies that reported to me and who's 10 Chairs, in effect, reported to the Minister. 11 Q: Thank you for that explanation, Dr. 12 Todres. 13 Just with respect to this structure, this 14 is a structure that you would have inherited upon your 15 appointment as deputy Minister in June of 1995? 16 A: Yes. 17 Q: Did you make any changes to the 18 structure or...? 19 A: No, not initially. I think over the 20 course of two (2) years, because of staffing issues, I 21 think we may have combined the Chief Coroner position 22 with the -- this particular position here, I believe, at 23 the end of the day were -- were combined. And you'll -- 24 I've just forgotten the person the -- Dr. Jim (phonetic) 25 and I'm blanking on his last name, would have been
2331 responsible for both. 2 The fellow who's now working with the 3 Federal Government. 4 COMMISSIONER SIDNEY LINDEN: Mr. O'Marra 5 is giving you the pronunciation. 6 MR. AL O'MARRA: James Young. 7 THE WITNESS: Thank you, Jim Young. 8 MR. DONALD WORME: All right. 9 Commissioner, I would ask that this be marked as the next 10 exhibit, please. And perhaps I ought to have done that 11 before she referred to it, but I think -- 12 COMMISSIONER SIDNEY LINDEN: What number 13 is it? 14 THE REGISTRAR: P-984, Your Honour. 15 COMMISSIONER SIDNEY LINDEN: P-984. 16 17 --- EXHIBIT NO. P-984: Organizational chart of the 18 Ministry of the Solicitor 19 General drawn by the Witness 20 Dr. Elaine Todres, Nov. 29 21 2005. 22 23 CONTINUED BY MR. DONALD WORME: 24 Q: And given your significant experience 25 in government prior to your appointment as deputy
2341 Minister, Dr. Todres did you have any appointments with 2 Aboriginal issues and, if so, can you tell us about that, 3 in what capacity, those sorts of things? 4 A: My first involvement with Aboriginal 5 issues was in the context, actually, of taxation, where 6 we were concerning ourselves with tobacco tax and 7 gasoline tax and what occurred on and off reserves. 8 And I would have been aware of some 9 particular issues, although I was in a policy position 10 and wouldn't have been involved in operations. But that 11 was actually my first direct experience with our 12 constitution and how that actually relates on the ground 13 to specific policies like taxation. 14 On a more hands-on basis, when I started 15 working in Women's Issues as both the Director and 16 ultimately as the assistant deputy Minister for Women's 17 Issues, we, and our Ministers, had a very keen interest 18 in reaching to Aboriginal women. 19 And I first began to have conversations 20 with ONWA, the Ontario Native Women's Association and the 21 conversations were lengthy and complex. 22 The leadership was torn between 23 participating with us directly and their view of the 24 circle of life and the spiritual way in which they were 25 defining family. And so they were concerned that simply
2351 taking women out of that equation was something that they 2 had to think long and hard about. 3 And it was a time, it was a different era, 4 but it was a time when land negotiations and political 5 rights were being discussed in a particular context and 6 ONWA was wondering about where it best should place its 7 resources. 8 But we had many, many meetings. We met 9 with leadership from the Indian Friendship Centres; we 10 had meetings with them, they had meetings with us. 11 The meetings always began with ceremonies 12 -- with Aboriginal ceremonies and always ended with 13 Aboriginal ceremonies as we were trying to explore what 14 we could do in terms of employment and health care and 15 social services, that would make a difference for Native 16 women and Native families. 17 When I moved to the human resources 18 Secretariat, the Government of the day was struggling 19 with employment equity and it was asking itself, ought we 20 to legislate employment equity, or should we just exhort 21 companies to do good and to hire people and to be open 22 about their hiring? 23 And the Government of the day, and the 24 Minister of the day, asked me to launch a consultation 25 process across all of the four (4) or five (5)
2361 traditional areas that we would look at with respect to 2 employment equity, namely Aboriginal peoples, disabled 3 peoples, women, visible minorities -- I'm struggling to 4 see if there was a fifth, but I think those were the four 5 (4) areas. 6 And so I began, with my staff, a very long 7 and complex relationship with the Aboriginal leadership 8 of Ontario to determine, A) Who should be asked. And 9 that was a difficult set of conversations. 10 I can recall, for example, spending three 11 (3) or four (4) months trying to sort out whether Ontario 12 Metis would be involved in the discussions or not. And 13 it culminated in a two (2) or three (3) day consultation 14 process with Aboriginal people -- leaders. 15 And we also needed to look at -- how can I 16 put it? We wanted to make sure that the very process by 17 which we consulted could not be -- could not be subject 18 to accusations of being systemically discriminatory. 19 So I wanted to make sure, as did my staff, 20 that if we were holding meetings it would be at times 21 appropriate for -- for Aboriginal leadership to attend. 22 If we required subsidies or -- or financial reimbursement 23 so that individuals were able to attend, we wanted to do 24 so. And in order to do so I required certain permission 25 along the way.
2371 So that was my context and our -- our 2 objective, our policy objective was very simple. It 3 sounds very simple. It was to enhance the participation 4 of Aboriginal peoples in the Civil Service and to enhance 5 employment, both on and off reserve. 6 As I moved into Culture and -- and 7 Communications and Culture and Tourism, I was involved in 8 a number of ways, and my memory is going to fail me, but 9 one (1) of the most obvious was that we were in the 10 business of financing an incredible Aboriginal radio 11 station in Ontario. 12 And I'm blanking on the name, but it's a 13 very significant -- and I'm -- I'm looking to others who 14 have been so helpful to me before, but it was extremely 15 important to us to fund that particular radio station 16 because we believed that that radio station, in areas 17 where there were no telephones, was actually serving the 18 purpose of enhancing language skills and retaining 19 language. So individuals could speak in their own Native 20 language across the air waves. 21 And I'm pleased to say that I believe that 22 that station is still operational and still extremely 23 functional. So I would have had direct involvement with 24 the station and with the people who were involved. 25 We had a lot of discussion around
2381 archeology. And we were trying to fund, for example, 2 some sacred mounds in western Ontario that were very 3 close to Kenora and, again, I -- I don't recall that, but 4 that was a two (2) or three (3) year exercise. 5 We were convinced that it was extremely 6 historic. The -- the mounds, as I recall, were nine 7 thousand (9,000) years old. And we would -- we worked 8 very hard to see to it that it became a -- a heritage 9 site and I believe we were actually successful but it 10 took two (2) or three (3) years of perseverance. 11 I would have had experience with the 12 archivist who made plain to me something that I had never 13 realized before that whereas the Attorney General, when 14 seeking work on land claims, might go to management board 15 and seek additional funding for Crowns or for research to 16 do work in Aboriginal land claims, no one seemed to 17 connect the dots that those lawyers would then go to the 18 archives to say, Where is the material? 19 And the archives had been a traditionally 20 under-resourced, not thought about institution. So yet 21 another example of an unintended consequence. 22 But if one is actually looking at 23 Aboriginal matters and legal matters there's a whole 24 series of agencies and arms of government who wish to 25 help and who need to be involved and yet who might not
2391 necessarily have funding. 2 I would have had, probably, a number of 3 examples where I was looking at land claims and burial 4 sites and so on that would have been a normal part of 5 business in -- in culture. 6 As I moved to Corrections and the SG in 7 Corrections, the most powerful -- my -- my experience, of 8 course, began with my familiarity with the current -- the 9 then current status of Aboriginal policing. It was a 10 subject that I took a great deal if interest and would 11 have spent a great deal of time dealing with. 12 On the Corrections side we spent a great 13 deal of time looking at -- because the Deputy Attorney 14 and I were committed to developing a new construct in the 15 Government we were very desirous of creating this notion, 16 not of a ministry of justice, but a conceptual approach 17 to justice, that one has to look at all of the players. 18 We would have become aware of sentencing 19 circles and -- and the work of some of the Crowns in 20 Western -- in Rupert Ross I'm thinking of, and Kenora, 21 who's devoted his lifetime to looking at new approaches. 22 We were terribly concerned about that. 23 I would have met with various agencies 24 that specialized in treatment and parole and probation 25 for Aboriginal officers. I would have been in jails,
2401 visiting Provincial jails where I would have seen 2 Aboriginal leadership offering extremely important 3 services in the jails. 4 So that might be an overview of -- of my 5 experience. 6 Q: And I do appreciate that. The radio 7 station, might it be Wawatay out of Sioux Lookout. 8 A: Yes, WaWaTay. Thank you. 9 Q: I want to ask you to move -- to move 10 nextly, if we can talk about your -- your duties at the, 11 you call it, I think, MSG and Corrections. 12 A: A mouthful. 13 Q: Had you, before being appointed in 14 June of 1995, any prior working relation -- relationship 15 with the then new minister, Bob Runciman? 16 A: No. 17 Q: Or members of his staff? 18 A: No. 19 Q: And had you any exposure, education 20 or training in criminal justice, policing or corrections 21 prior to -- to your appointment, other than what you've 22 already told us? 23 A: No. 24 Q: Okay. And when you took on this new 25 position as Deputy Minister of MSG and Corrections, was
2411 there a formal orientation process that you would have 2 been taken through in order to familiarize yourself, if 3 you weren't, with the numerous issues that you've, I 4 think, indicated would come across your desk, any issues 5 that you ought to be alive to as the Deputy Minister? 6 A: I can't speak for the Secretary of 7 Cabinet but I can only describe to you what the -- the 8 expectation of a new deputy is upon a new appointment. 9 And I -- and I suppose, without sounding 10 unduly immodest, I think that, generally speaking, in the 11 appointment process, more seasoned or the senior people 12 are appointed to the more complex ministries. 13 It would be unusual to have a first 14 appointment as a deputy to a ministry like Solicitor 15 General and Corrections. 16 Q: And certainly from what you've told 17 us you've -- you've taken on increasingly complex and 18 larger ministries as a -- as a deputy. 19 A: So the expectation from the centre, 20 as we like to call it, was that a new deputy -- when you 21 were appointed to a new position, you would be expected 22 to bond with your minister within roughly thirty (30) 23 seconds of having taken the job. 24 And it would be your responsibility, 25 through extensive investment of time and energy, to
2421 become briefed on the issues as quickly as possible. 2 In the case of my appointment to the 3 Solicitor General and Corrections, the day following the 4 -- the -- my -- the intention to appoint me, I was called 5 on a Sunday night around 6:00 or seven o'clock at night 6 by the Secretary of Cabinet indicating that this would be 7 the new position for -- 8 Q: And forgive me for interrupting, the 9 Secretary of Cabinet, we've had some testimony here, that 10 would be Rita Burak? 11 A: Rita Burak. 12 Q: And you've also used the word 13 'Centre' and just so I'm clear, the Centre, as we like to 14 call it, I think you mentioned, that would be -- that 15 would be what? What are you referring to? 16 A: That would be the Central Agencies. 17 It's our familiar euphemism for Cabinet Office and the 18 Premier's Office and Management Board and Treasury Board. 19 Those -- those institutionalized organizations that are 20 responsible for ensuring that the collective -- that the 21 individual decisions meet with the collective will of -- 22 of Cabinet. 23 So on the deputy appointment process, as I 24 understand it, it's -- it's not something that -- that 25 most of us know about. As I understand it, the Secretary
2431 of Cabinet presents a list to the Premier. How it is 2 that that person comes up with that list, I wouldn't 3 know. 4 But the Secretary of Cabinet presents the 5 list to the Premier, the Premier makes his or her 6 selections. It is the Secretary of Cabinet who makes the 7 phone call because it is seen as being bureaucratic and 8 not politicized. 9 So I received that phone call on a Sunday 10 night and I was asked to see the Secretary of Cabinet the 11 following morning. She did not brief me on my 12 responsibilities. She would have assumed that I would 13 have had a general sense of what the Deputy Solicitor 14 General and the Deputy Minister of Corrections would be. 15 And she would assume that I would take my 16 professional responsibility to become as knowledgeable as 17 I needed to be as quickly as I needed to be on the issues 18 of the day. 19 What she did brief me on, however, were 20 the political priorities of the Government. So she had a 21 list in hand of five (5) or six (6) issues and it was 22 made clear to me that we were to deliver them and she 23 gave me the time -- rough timeframes. 24 And so they would have included things 25 like the change to an oath that municipal officers took.
2441 I don't remember what the change was; I can't recall 2 whether it was to include the Queen or to exclude the 3 notion of the Queen, but it had something to do with the 4 Queen. And that was something we had to do by 5 regulation. 6 There was a desire to deal with bullets 7 and the kind of ammunition that municipal police would be 8 permitted to use. 9 There was the issue of revisions to the 10 Police Services Act. There was the issue of a review of 11 civilian oversight of the police. 12 So that was the agenda that was given me 13 and I was told to become familiar with it. And it was 14 explained to me that -- she probably talked to me about 15 corrections as well, because it was at the point, this 16 point in time, where it became that the Government was 17 interested in the privatization of the building of large 18 jails. 19 So she would have made me aware of those 20 issues and indicated to me that whilst I would have had 21 to become familiar with the broad set of issues the 22 Solicitor General and Corrections was to deal with, I was 23 to make sure that our Ministry delivered these particular 24 products. 25 They were to be excellent and they were to
2451 be on time and she indicated to me that the Premier had 2 confidence in me, that I was -- I had a policy 3 perspective and that I had familiarity with Corrections 4 and wished me good luck. 5 Q: And her expectation that you would 6 familiarize yourself with your responsibilities, with the 7 obligations of that office, that in fact did happen, I 8 take it? 9 A: Yes. So I did what I would have 10 always done and did in every new posting. I met with my 11 senior management committee, my new senior management 12 committee, but first -- I met with the -- the Minister, 13 actually, very briefly I think, in the morning, to say 14 hello to one another. 15 That would have been the first time I 16 would have met Mr. Runciman and the first time I would 17 have met Ms. Hunt. 18 And then I met with my -- my new 19 colleagues in the Ministry, and they were all in uniform 20 as I recall. And I was probably as nervous about meeting 21 them as they were about meeting me. 22 And then we began the task of briefing. 23 So I would have probably spent anywhere between fifty 24 (50) to a hundred (100) hours in the first month or so 25 with not only collective briefings with my senior team on
2461 the hot spots that they saw; the issues that they had; 2 how it is that they were going to deliver on some of the 3 top priorities. 4 But I would have spent hours, if not days 5 with each of those assistant deputy Ministers, talking 6 about their resource base, talking about the policy 7 issues, talking about the operational issues. 8 And I would have made sure that we had 9 decent and, well, excellent briefing binders for the 10 Minister. We had a number of meetings with the Minister. 11 Not as many, perhaps, as I would have 12 liked at the time, but I was reminded of the fact that 13 our Minister was the former critic of justice and felt 14 that he was quite comfortable with -- many of the issues 15 that the Solicitor General and Corrections were facing. 16 So, we had maybe five (5) hours or ten 17 (10) hours, which in civil service language, isn't a lot 18 of time, spent on briefing with the Minister. And we 19 agreed that we would brief him and keep him up to speed 20 on issues as -- issues as matters were unfolding. 21 Q: And specifically with respect to your 22 office, might you have received information as part of 23 these briefings of potential conflicts that you might 24 encounter? 25 A: Oh, well, sensitive as I was to the
2471 complexity of the Solicitor General and Corrections, at 2 the first moment that I had when I was actually alone in 3 my office after meeting my senior management team, I 4 called the then-director of Legal Services, Diane Dougal, 5 to my office. 6 And I indicated to her that by the end of 7 the -- before the end of the day, I wanted a briefing 8 from her on anything I needed to do to avoid either 9 conflicts of interest, any steps that I -- any reminders 10 that I might have about what it is that either a Minister 11 of the Solicitor General or a deputy Minister of 12 Solicitor General and Corrections was prevented from 13 doing. 14 So, I wanted, in detail, the separation of 15 policy from operations and police; what happened when 16 people would call me with certain kinds of information; 17 how did we filter information to ensure that the Minister 18 mightn't receive, for example in a briefing note, the 19 name of a young offender, which would place him in a -- 20 in a very difficult position, politically. 21 And she did come to me that very 22 afternoon, very quickly thereafter, and gave me a very 23 detailed briefing. And what I recall is a note something 24 like the top ten (10) things to -- to avoid doing. 25 Q: Okay, can you recall for us any of
2481 those top ten (10) items? 2 A: Well, it was a -- you know, you don't 3 call in the middle of a police investigation; whenever 4 matters are before the Courts, the Minister is silent. 5 Our briefing notes, she indicated to me, 6 would often be disappointing in the sense that you would 7 say we are familiar with the issue, no comment. 8 Before the Courts it's -- at the Coroner's 9 office, we can't speak to those matters; that sort of 10 thing. 11 Q: Okay. And those conflicts might 12 arise in anyone of these units that you've described -- 13 A: In any one. 14 Q: -- which headed by an assistant 15 deputy Minister. 16 A: Yes. 17 Q: They were your senior team and you 18 would meet with them on a daily or if not -- or weekly, 19 if not daily basis? 20 A: Correct. 21 Q: Is that right? 22 A: Correct. And each of them -- I mean, 23 in Corrections, they had their own set of areas where 24 they were very, very sensitive to, particularly with 25 respect to youth.
2491 But in the Chief Coroner's office, where 2 we had legal counsel who were both representing the 3 Coroner and presenting findings and so on, it turns out 4 that there were a series of potential conflicts that 5 might arise as well. 6 So each of those areas had its own 7 peculiar set of -- of conditions where discretion, 8 professional judgment and knowledge of the law were 9 required. 10 Q: And you'll appreciate, Dr. Todres, 11 that one (1) of the things of interest here is the -- and 12 we've had evidence from Commissioner O'Grady and Chief 13 Superintendent Coles on the structure of the OPP -- 14 A: Hmm hmm. 15 Q: And perhaps you might just tell us a 16 bit more of that. You had a direct -- or -- or there was 17 a direct line reporting relationship there? 18 A: The -- the understanding -- it wasn't 19 just, of course, a matter of understanding it was a 20 matter of statutory requirements and -- and policy 21 framework. 22 The Commissioner reported directly through 23 me to the Minister. So it would have been -- we -- we 24 actually saw each other on a fairly frequent basis. He 25 was not only the member of the senior management team, I
2501 appoint -- I had an enormous and still do, an enormous 2 regard for him. 3 He became the Chair of my policy 4 committee. And I valued his advice because, at the time, 5 I was concerned that we were under enormous pressure to 6 develop policies but we were not -- we were an 7 operational Ministry, not used to writing Cabinet 8 submissions, not used to working on policy. 9 So he did that for me. The kinds of 10 conversations that he and I would have had would have 11 been around things like: if we have a 40 percent cut, and 12 there are a number of areas of -- of protection for the 13 OPP, Tom, where do you see your cuts, what significance 14 are they? 15 Can you contribute a greater percentage of 16 cuts in certain areas because the disproportion of burden 17 is falling on Corrections and Corrections had been a 18 traditionally under-financed area? 19 We spent a lot of time talking about 20 technology. He was involved, and I led, a number of very 21 important technology projects that had to do with radios 22 and satellites and that sort of thing. 23 We never discussed operations and it was 24 very clear where -- where the line was drawn. 25 Q: And that is something of considerable
2511 interest, as well. I wonder if you could just elaborate 2 on that, if you would, please. 3 Where is that line is drawn; what was your 4 understanding of it? 5 A: Well, our -- our interaction 6 principally revolved around policy. So, should there 7 have been a new policy on gun control, it would have been 8 something that I would have been obliged to communicate. 9 The -- the Commissioner, for example, 10 would have informed me -- there were times when, in areas 11 like biking gang -- wait, let me just think of the word 12 now. Bikers. 13 The Commissioner might have initiated a 14 joint task force as between the OPP and a number of other 15 municipal police forces. 16 And here I'd like to draw the distinction 17 between operations and policy. 18 He wouldn't have shared with me his 19 thinking or his options paper on whether or not there 20 ought to be a joint task force. 21 He wouldn't have discussed with me the 22 strategy that the joint task force would be engaged in as 23 it was going about its work. 24 But he would inform me, after the fact, 25 that such a decision had been made. And then that was
2521 his filter in terms of what it is that I needed to know 2 and my filter would have been, and is that something the 3 Minister ought to know? 4 And in a case like that, that would have 5 been something that we would have informed the Minister 6 about; other municipal police forces were involved. And 7 I would have spoken directly with the Minister. 8 Although from time to time when 9 Commissioner O'Grady came into Toronto for these weekly 10 meetings he would -- I don't know how frequently he 11 would, but he would, from time to time, meet with his 12 minister and keep him apprised of the state of the union 13 with respect to the Ontario Provincial Police. So -- 14 Q: And from -- from your perspective if 15 I can just interrupt briefly, Dr. Todres. From your 16 perspective that meeting is between the Commissioner and 17 -- and the Minister, did you see anything wrong with 18 that? 19 A: Absolutely not. 20 Q: All right. Continue. 21 A: So we would have -- as I say our -- 22 our contact primarily was around what I would have called 23 major budgetary or policy changes that we were seeing 24 forthcoming. Occasionally if there was a matter that he 25 believed he needed to inform me directly, he would call.
2531 And point of fact we had very rare phone 2 calls where he would call me directly. If there were 3 issue notes they would go through the traditional 4 channels, through the -- the approval process through 5 both the OPP and the approvals process through the Issues 6 Unit. 7 Q: All right. I want to take you to 8 some documents. But just before I do that I'm going to 9 ask you if you might just describe how the number of 10 issues -- I think you've indicated that there would be 11 significant number of issues and again you'll -- you'll 12 correct me if I'm wrong on that coming from these various 13 units under your -- 14 A: Yeah. 15 Q: -- under your authority? 16 A: So -- 17 Q: How were those looked after? How 18 were they managed? 19 A: So let me start by saying that you've 20 got old -- one (1) has old issues and one (1) has 21 emerging and new issues. 22 So any ministry of our size and complexity 23 would have had an issues book that detailed all of the 24 thorny issues in that particular division. And some of 25 them may have been years in the making and some of them
2541 may have been something that was brought to our attention 2 three (3) or four (4) months ago. And it was the job of 3 the Issues Unit and the respective ADM's to have up-to- 4 date books. 5 Those books, those issue books, were 6 subject to a whole series of protocol rules. So, for 7 example, one (1) government came in and informed us that 8 the language that was to be used was not to be the 9 language of anything other than a grade 5 student. 10 That kind of -- that was one (1) 11 government's view of simple language and how you have -- 12 how it is that you communicate an issue. But the -- the 13 prescription of what was in the form was very, very 14 detailed from the centre and from our ministry what 15 paragraph is written in what section and what the issue 16 and so on. 17 So every ADM was responsible for ensuring 18 that its policies, its issues were up-to-date. And some 19 of those issues would have been written by our Issues 20 Unit and some of them would have been written from the 21 field. 22 That was for your every day run of the 23 mill, but new issues arose every day. When the new 24 issues arose we had Mike Zimmerman who was responsible 25 for the Issues Unit and the Issues Unit was comprised of
2551 individuals first of all who were expert in 2 communications and issue management but also reflected 3 the various fields. Some of them would have had direct 4 policing experience or corrections experience. 5 There were a series of protocols that had 6 been established, both within ministries and from the 7 Centre. So we -- we need to think about two (2) 8 concurrent processes that would have occurred roughly 9 around the same time. 10 Around -- in other words there was a 11 process around which the Ministry apprised the Minister 12 of what was going on on a contentious issue. Whilst at 13 the same time in the Premier's office there was a regular 14 briefing of the Premier early on in the morning to 15 prepare him for Question Period at one o'clock, and those 16 processes were interrelated. 17 So in the case of our ministry, very early 18 in the morning the Issues Unit would meet with the 19 Communications person from our Minister's office. And 20 they would go through newspapers and clippings and 21 whatever other sources of information or if there had 22 been overnight transmittal of information from a jail 23 that hadn't made the newspaper that was problematic and 24 they would made an assessment then of which ones they 25 wanted to follow.
2561 Occasionally the executive assistant I 2 believe of the Minister's office would attend, but that 3 wouldn't have been her normal practice. And once that 4 was decided on, what it is that they were going to work 5 on and where the gaps and information would be, that 6 unit's job would be to liaise with the respective offices 7 to ensure that the information was brought forward as 8 quickly as possible. 9 And they would prepare the briefing notes. 10 Once the briefing notes were finalized and had gone 11 through both ADM sign-off, Assistant Deputy Minister 12 sign-off, it would come to the Deputy Minister's office 13 and my Executive Assistant would read them 14 And when you say how many, we would have 15 probably had five or six hundred (500-600) issues at any 16 -- in any day that were simmering on the -- on the back 17 burner. Not all of them were of the same intensity but 18 that would be the -- the number, as opposed to, in the 19 Ministry of Culture where maybe I had to be concerned 20 with seventy-five (75) or a hundred (100). 21 The Deputy Minister's office would review 22 those. I would rarely, if ever, look at an issue note 23 unless it was contentious. The Executive --- because of 24 the sheer volume and the sheer number of reports and 25 other issues that I have -- would have of the day.
2571 Once those were cleared by the Deputy's 2 office, if I was required to be involved, and I relied on 3 the discretion and the experience of my Executive 4 Assistant, I would be involved either in the wording or 5 making sure that things were clear with me. 6 That briefing note would go to the 7 Executive Assistant; to, in this case, Kathryn Hunt. 8 They would make sure that they would sign off and they 9 would be comfortable and then we needed to be ready for 10 the briefing time for the Minister. 11 Our Minister was popular with respect to 12 Question Period and was frequently asked questions since 13 we had a large portfolio. And depending on what his 14 preference would be, he would either be briefed by his 15 Legislative Assistant or he would be briefed -- he had a 16 great deal of respect and trust for the staff in the 17 Issues Unit. 18 And from to time he would -- they would -- 19 they would actually be asked to go to the Legislature or 20 wherever he was to brief him in the style in which he 21 wished to be briefed; whether it was in a long form or a 22 short form or however it is that he felt comfortable. 23 I would have rarely been involved in that. 24 I can -- I can think of, in the two (2) years that we 25 worked together, being called over perhaps once or twice
2581 to discuss a matter with him prior to Question Period. 2 At the same time, it was the 3 responsibility of our unit to flag those issues that 4 might be of interest to the Centre. So, what my -- my -- 5 what might one be prospectively, because it's always 6 difficult to predict what is going to become a problem 7 issue or not. 8 When we decide -- when the Government 9 decided to privatize jails, there was a process that the 10 Government wished us -- wished us to engage by which we 11 would have requests for tenders for communities to see 12 who would be willing to actually -- house, might be the 13 wrong word, but be the sponsor for land for a 14 correctional facility in their community. 15 And that was fraught with all sorts of 16 issues. So, if it was in a region where a number of 17 Ministers cared, for example, what was going on, that 18 might be something that a Premier might be asked a 19 question about. 20 So, the Issues Unit in the Premier's 21 office and Cabinet Office were expecting us to be on top 22 of things. They might be calling us to say, look we've 23 read something into the paper, when are we receiving it. 24 Because they also had their own schedule. 25 And I believe, I'm not certain, what the
2591 practice was -- was in the 1995 administration, but 2 generally speaking a Premier would be in -- would be 3 briefed by his or her staff 7:00 or 8:00, also eight or 4 nine o'clock in the morning with -- with a sense from the 5 staff about what the emerging issues were. 6 And there would be no doubt a specific set 7 of timing where the Premier would be expected to be 8 briefed on the -- whatever the contentious issue of the 9 day was. So, I guess my summary point on this is, as a 10 Ministry akin to health in terms of the size and 11 complexity and number of issues, we would have had very 12 well developed systems with a great deal of protocol 13 attached to them and with very tight timelines. 14 Q: All right. What -- what role, or 15 connection relationship if any, did you have with your 16 Minister's Executive Assistant, Kathryn Hunt? You 17 mentioned her a number of times. 18 A: Well she -- we worked closely, I 19 guess. In a -- in a phrase, I would say our relationship 20 was professional but testy. She -- I had come to, in the 21 course of my experience, defi -- seen the definition of 22 what the role of Executive Assistant would be in a 23 Minister's office, and I found it -- that in my 24 experience working with the Executive Assistant, that we 25 weren't ad idem with respect to what the -- what the
2601 respective job assignments would be. 2 So, there were times when she would, in 3 her haste to see that a briefing note was prepared, would 4 speak to a very, very junior person in a jail as a -- as 5 a matter was emerging to make sure that she got a handle 6 on it and the staff found that very, very troubling. 7 And -- 8 Q: Why so? 9 A: Well, because it's -- it's a bit like 10 -- it's a bit like employment equity. It -- staff who 11 were at a very junior level find it very intimidating to 12 receive a phone call from a Minister's office and can 13 easily be led to conclude that there's a political 14 interest in what it is that they're being asked to do. 15 And so we tried very hard, and I tried 16 very hard, to ensure that the protocols would be 17 established which is that there was a certain point in 18 time when it was appropriate for the political staff to 19 review. 20 And, I suppose, just a final point on 21 that. I was very concerned that after the fact, when 22 there were ten (10) or twelve (12) versions of a document 23 from 7:00 in the morning until 12:00, that a historian 24 could look at that, after the fact, and say, what did you 25 do to alter the facts?
2611 And, in fact, it was simply, in the case 2 of a jail riot, taking a while to shut down the 3 facilities, to actually deal with the person who was in 4 charge and the supervisor and it took several hours to 5 actually get the facts straight. 6 In addition to which, she found it 7 problematic to have me meet the Minister privately, and 8 so I rarely met him. In fact I -- I don't recall -- 9 perhaps one (1) time in the course of two (2) years where 10 I actually met with him privately and that would have not 11 been a normal discourse between a Minister and a Deputy. 12 So, in short, professional but testing. 13 Q: All right. Thank you. You had 14 spoken earlier about your understanding of the line, the 15 demarcation between government and the police services. 16 I'd ask you to turn your attention to the 17 document at Tab number 2 of the book of -- the brief in 18 front of you. 19 A: Hmm hmm. 20 Q: I'll tell you that this has been 21 marked as Exhibit P-578 in these proceedings. It's 22 entitled, Ministerial Control in the Ontario Provincial 23 Police, a Discussion Paper Prepared by the Legal Services 24 Branch of the Ministry of the Solicitor General, and it's 25 dated 1991.
2621 Have you, first of all, seen that -- that 2 document? 3 Did you -- were you aware of it during 4 your tenure as -- 5 A: No. 6 Q: -- Deputy Minister? 7 A: No. 8 Q: You have had a chance to review it, 9 in the meantime, however -- 10 A: Yes. 11 Q: -- in preparation for your attendance 12 here? 13 And having -- having done so, do you agree 14 generally with the analysis, the conclusions that are 15 reached there, with respect to police independence? 16 A: Yes, I do. 17 Q: And at Tab number 4 -- pardon me, 18 number 3, Dr. Todres. 19 A: Hmm hmm. 20 Q: This is a further document. It's 21 been marked as Exhibit P-579 here. 22 A: I took it to be -- it occurred after 23 I left, since there was a new title, the Ministry's title 24 had changed. But, I took from reading it that it -- it 25 looked to me like a PowerPoint distillation of the former
2631 document. 2 Q: Okay. You've told us earlier, and if 3 you'll -- if you'll look at page 26 and 27 of that 4 document. 5 No, sorry. There's no 26 in here. I'm 6 sorry, I'm just -- 7 A: Hmm hmm. Nope, the former one. Hmm 8 hmm. 9 Q: Of the -- of the former document, the 10 document you've indicated you were not familiar with, but 11 have reviewed it and agree with the conclusions in there. 12 you'll see at the bottom under Deputy 13 Minister's responsibility, you see the notation: 14 "The Deputy Minister should be 15 responsible for the development of 16 administrative policy for the 17 Ministry"? 18 A: Hmm hmm. 19 MR. JULIAN FALCONER: Sorry, what -- what 20 page? I apologise. 21 MR. DONALD WORME: Pardon me, page 26 of 22 the document at Tab 2, that is P-578. 23 MR. JULIAN FALCONER: Thank you. 24 25 (BRIEF PAUSE)
2641 CONTINUED BY MR. DONALD WORME: 2 Q: Can you see the first bullet on the 3 following page, Dr. Todres, 4 "The Deputy Minister may direct the 5 Commissioner to development and 6 implement plans to support the policy 7 objectives of the -- develop and 8 implement plans to support the policy 9 objectives of the Minister."? 10 A: Yes. 11 Q: And did you do that, with respect to 12 the Commissioner, that you would have been working with; 13 that would have been Tom O'Grady -- 14 A: Yes. 15 Q: -- I think you've already told us? 16 And secondly: 17 the Deputy Minister should convey the 18 Minister's interests and concerns to 19 the Commissioner." 20 And you've already told us that, on 21 occasion, he might do that on his own? 22 A: Yes. 23 Q: Had you occasion to communicate, as 24 it indicates there, the Minister's interests and concerns 25 to the Commissioner?
2651 A: Yeah. I think it's important to 2 state that Minister Runciman, as a former Just -- Justice 3 Critic was extremely sensitive to the demarcation between 4 policy and operations. 5 The kind of discussions either he or I 6 might have had with the Commissioner would have had to do 7 with matters like compliment size, infrastructure plans. 8 Commissioner O'Grady, if I -- if memory 9 serves was very interested in changing some of the 10 regional structures. We would have spent a great deal of 11 time talking about technology. We were extremely worried 12 about what it means not to have a provincial network for 13 the transmission of information. So those would be the 14 kinds of policy issues. 15 We have had, for example, even 16 conversation. As I recall Commissioner O'Grady was 17 actually the Chair of the Canadian Association of Chiefs 18 of Police and when the Government of the day was taking a 19 position or considering, in its early days, a position on 20 gun control, Commissioner O'Grady, in his role as the 21 Chair of the Canadian Association had a particular view 22 with respect to gun control. 23 That would have been considered to be a 24 policy issue and they would have likely had -- I seem to 25 recall that they would have had conversations on that
2661 subject. 2 We would have had conversations too about 3 the very real matter of what is the fundamental role of 4 the OPP. As we were considering opening up the Police 5 Services Act the real question arose as to what ought 6 municipal polices -- police forces to do in distinction 7 from what the OPP would do. 8 Or put in simple language, the OPP have a 9 certain degree of expertise with respect to investigatory 10 matters. Would we expect that to be mirrored in every 11 single police force, save and except for the large ones 12 like Toronto and Kingston and Ottawa? 13 So, we would have had a lot of discussions 14 about at the end of the day what is the provincial 15 responsibility to ensure adequacy of standards across the 16 entire province and what specific role might the OPP take 17 in that regard? 18 Q: All right. In the next bullet 19 following that: 20 "The Deputy Minister should report on 21 the activities of the OPP to the 22 Minister." 23 I take it from what you've told us you've 24 done that. You've described the position of Deputy 25 Minister as a conduit of information if I can put it that
2671 way flowing both ways. And your professional judgment, I 2 take it, would be used in conveying -- 3 A: Yes. 4 Q: -- the Minister's concerns as well to 5 the OPP? 6 A: Yes. 7 Q: Would that be fair? 8 A: That's true. And -- and the 9 Executive Assistant to the Minister was also very mindful 10 of that. So, we would occasionally be given some 11 operational details and the question would be: And how 12 much of that would be forwarded on? 13 We never wanted to place the Minister, on 14 the other hand, on a position where something of 15 significance occurred and he would be singularly unaware. 16 So, it might be that he would be informed 17 but without the degree of detail that would compromise 18 the office of the Minister. 19 Q: All right. Perhaps if I can ask you, 20 again at that same tab, Tab number 2, at pages 12 and 13n 21 under the heading, The Right to Know; do you see that? 22 A: Coming up. Yes. 23 Q: And first -- the first paragraph, 24 paragraph A: 25 "What right does the Minister have to
2681 be fully informed of matters respecting 2 the OPP?" 3 All right. Is that consistent with how 4 you understand that? 5 A: Yes. 6 Q: And that's what you were just 7 telling us. If you could go to the -- the -- 8 A: Yes. 9 Q: -- the rationale for this right to 10 know, and I'm quoting, is that: 11 "The Minister is ultimately accountable 12 in the legislature for the efficiency 13 and effectiveness of law enforcement in 14 the Province. He or she must, in the 15 normal course, be able to answer 16 questions on matters of operational 17 policy..." 18 How does that accord with what you've been 19 describing to us? 20 A: 100 percent. 21 Q: And then it goes on to -- to lay out 22 a number of exceptions, and those exceptions would be 23 questions concerning ongoing police investigations, all 24 right? You've already I think indicated that to us if 25 I'm not mistaken.
2691 "...where public answers could 2 jeopardize the safety of an individual 3 or hamper the conduct of an 4 investigation or proceeding." 5 And again that's consistent, I think, with 6 what you've told us? 7 A: So, an example might be, should -- 8 should I need -- have needed to be aware that a decision 9 would have been undertaken to lay charges on a matter? I 10 would have been formed -- informed after the decision was 11 made to lay the charges. 12 Q: All right. What if an incident were 13 to occur where the Minister wanted to take a hand in 14 there, what would your -- what would your duty be? 15 And I'm not suggesting that that happened 16 I'm simply inquiring, from the position of the Deputy 17 what would your job be? 18 A: As a hypothetical? If that -- my job 19 would have been to speak with the Minister to -- if -- if 20 it was my -- if it was in my judgment that that would 21 have been an incorrect thing to do from a statutory point 22 of view, we would have called in the Director of Legal 23 immediately. 24 And this is perhaps the job where I had 25 the greatest contact with legal counsel. I saw them all
2701 the time, every day. And in this particular case, to 2 more from the hypothetical to the real, Mr. Runciman was 3 very respectful of the legal advice that he received. 4 Q: All right. And did you understand 5 that the Solicitor General was entitled to demand or to 6 access operational information -- 7 A: Yes. 8 Q: -- directly from the Commissioner? 9 A: Yes. 10 Q: That is, yes, he could do so or no he 11 could -- 12 A: That he could -- 13 Q: -- not? 14 A: -- do so. 15 Q: All right. 16 17 (BRIEF PAUSE) 18 19 Q: And I take it that the exception to 20 that, would be those exceptions you've just spoken about? 21 A: And they were very -- they were very 22 rare, and they occurred, as I say, after the facts. 23 Q: All right. 24 25 (BRIEF PAUSE)
2711 COMMISSIONER SIDNEY LINDEN: I'd like to 2 take an afternoon break sometime -- 3 MR. DONALD WORME: This is as good -- 4 good a place as any, Mr. Commissioner. 5 COMMISSIONER SIDNEY LINDEN: -- good 6 time. 7 MR. DONALD WORME: This is as good a 8 place as any, sure. 9 COMMISSIONER SIDNEY LINDEN: Fine, we'll 10 take a break now. We'll take an afternoon break. 11 THE REGISTRAR: This Inquiry will recess 12 for fifteen (15) minutes. 13 14 --- Upon recessing at 3:00 p.m. 15 --- Upon resuming at 3:18 p.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed. Please be seated. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. DONALD WORME: 23 Q: And, Dr. Todres, in 1995 what was 24 your understanding of the Solicitor General's rights and 25 obligations with respect to directing policy matters?
2721 A: Well, as stated in this -- this 2 document and elsewhere, that is the responsibility of the 3 Minister to articulate policy. 4 Q: And -- and perhaps you may have 5 commented on it earlier, but I wonder if you would tell 6 us your understanding of the distinction between 7 operation and then policy. 8 A: Well let me give you an actual 9 example in -- in municipal policing. It was considered 10 to be a policy decision with respect to the type of 11 bullet that could be used when an officer would be 12 required to use a bullet, so to discharge a -- a fire, 13 you know what I'm saying, shoot a gun. 14 Q: Right. 15 A: When I was asked to look at that 16 particular policy issue I would have met under the 17 direction of my Minister, who was aware that this would 18 need to be done. I would have met with legal staff of 19 the Ministry, some of whom were experts in ballistics. 20 I would have met with the Chief Firearm 21 Officer, a title somewhat -- I'm -- I'm approximately 22 correct in describing that position, but he would have 23 been an OPP officer. 24 We would have met and we would have -- and 25 I would have asked the question: I understand that
2731 Government is wishing to change the policy direction with 2 respect to ammunition, could -- and I understood what the 3 reasoning was at the time, could you please explain to me 4 what we would need to do to implement that new policy 5 direction? 6 It would have been explained to me at the 7 time that we needed a new regulation and I would asked 8 the question as I did then: Well what would you actually 9 put in -- in the regulation? 10 And it would have been explained to me 11 that actually what we required was the specifications. 12 It would be as -- almost as though it looked as a 13 specification for a bullet of this size, of this density 14 and so on and so forth. And we would have created the 15 material, the arguments that the Minister would have 16 liked to have taken forward. 17 Given that it was a matter of regulation, 18 we would have had to take this not only to the Policy 19 Committees but to the Regulations Committee of Cabinet 20 for it to have been approved and that would have been the 21 type of direction that a Minister of the Solicitor 22 General would have sought to take. 23 An operational matter would be those kinds 24 of tactics that police officers or incident commanders 25 would analyse and synthesize in the course of actually
2741 making an operational decision. 2 And that would be something that a 3 Solicitor General or a Deputy Minister would never be 4 involved in. Now we might be involved in a policy, for 5 example, that should there be a shooting, there must be 6 an investigation by the Special Investigations Unit. 7 But not on what -- what were the 8 circumstances that would lead up to something like that. 9 Q: Or the deployment of a Tactical and 10 Rescue Unit, for example. 11 A: Or the deployment of a Tactical -- 12 that was a delegated responsibility where, as I say, 13 under some of the wording here, where one relies on the 14 professional training, discretion, experience, judgment 15 of the police officers involved. 16 And would never want to have Ministerial 17 involvement, particularly aside from the matter of 18 politicization of police forces. But we wouldn't want to 19 do anything that might harm the outcome, the potential 20 outcome of the decisions, not being experts in 21 operational matters. 22 Q: And if you could turn to page 17 of 23 that same tab, Document Number 2 of P-578. The page is 24 17 and 18. Do you see under -- under heading number 3; 25 The Right to Direct Operational Matters:
2751 A) What right does the Minister have to 2 intervene in operational matters 3 involving the exercise of quasi 4 judicial powers." 5 Do you see that? 6 A: Hmm hmm. 7 Q: And you've had a chance to review 8 those items, Dr. Todres, and how does that accord with 9 what you've just described for us? 10 A: It's completely in accord with what 11 I've described. 12 Q: And that would have been your 13 understanding of the Solicitor General's rights in 1995 14 and the obligations with respect to policing operations? 15 A: Yes. 16 Q: Thank you. Can I get you to comment, 17 if you would please, Dr. Todres, on the communication 18 between the Solicitor General and the police, in terms of 19 how did that occur? 20 A: Well, I can't speak to what specific 21 phone calls a Minister may or may not have made but, in 22 general, the position that the Minister took and that I 23 took is that there would be no direct interaction with 24 police officers or Chiefs on matters of operations. 25 The Chiefs around the Province, the
2761 municipal Chiefs were in daily -- let's just say they 2 were seized daily with the issue of what their 3 complements should be and what their particular 4 relationships were with their respective police services 5 boards. 6 And there might be time -- from time to 7 time where they would have wanted to communicate things. 8 But in the main, our minister and The Minister of the 9 Solicitor General would be in contact with organizations 10 that were representing the collectivity of police 11 officers. He would have met with the Ontario Chiefs of 12 Police, he would have met with the OPPA. 13 And he certainly did so because in that 14 term, in the early part of 1995, we were beginning formal 15 consultation processes with respect to the opening up of 16 the Police Services Act and amendments thereto. So that 17 would have been the nature of the contact. 18 On the other hand, when municipal policing 19 services would have, and I recall one (1) and I -- I'll 20 refrain from mentioning the particular municipality, but 21 I recall when there was an allegation of -- of fraud 22 and/or corruption and the Minister would have been made 23 aware of it, but given that an investigation was going on 24 with respect to the behaviour of a particular chief, that 25 would have been the beginning and the end; he would have
2771 had absolutely no contact either with that chief or that 2 police services operation. 3 Q: And you told us something about the 4 complement of staff that you would have to assist you in 5 the duties of the Deputy Minister. Did you have any OPP 6 officers within the ranks of such staffing? 7 A: Well, I'd just like to stand back for 8 a moment and give a little bit of a context. 9 When I became appointed, one (1) of the -- 10 as Deputy Solicitor General and Deputy Minister of 11 Corrections, one (1) of the first people that I spoke to, 12 on an informal basis, was the former incumbent Michelle 13 Melville (phonetic) who then became the Secretary of 14 Management Board, a very skilled and experienced 15 operational deputy minister. 16 And she explained to me, as others did 17 when I joined the Ministry, that in order to exercise the 18 responsibilities assigned to a deputy minister of 19 something as vast and large as -- as this particular 20 configuration was, it would have been impossible to do 21 so, in her opinion and the opinion of many others, 22 without the assistance of experts attached to the Deputy 23 Minister's office. 24 So it -- it became a custom for there to 25 be a representative of Corrections seconded from that
2781 division and to have a staff officer seconded from the 2 OPP. In this case it was Barbara Taylor. 3 So, I just want to be clear about my use 4 of words. While Barbara Taylor had been an OPP officer 5 and was retaining her rank and her pensionable rights and 6 so on, with respect to her position, she was fully 7 seconded to my office and took instructions from me 8 alone. 9 That would be the same case for Ron Fox 10 and Scott Patrick who were seconded officers; I wouldn't 11 have even recalled, perhaps, their rank, but seconded 12 officers from the -- from the Ontario Provincial Police. 13 They were attached to the unit called Aboriginal Policing 14 or a title something like that. 15 They would have retained their salary and 16 compensation rights, but they were fully seconded to my 17 office and took instructions from me alone and were not 18 in that sense considered to be OPP officers. 19 Notwithstanding the fact that I'm -- I'm 20 not a legal expert, but once sworn in as a -- as an 21 officer I believe that, seconded or not, should they 22 witness a problem they are not absolved of their -- of 23 their oath to -- to be a peace officer. 24 I may not have gotten the legalities 25 right, but for the -- for the purposes of reporting
2791 relationships, authority, and change -- chains of 2 command, those three (3) staff people, like the 3 Corrections people, reported to me and to me only. 4 Q: I'm just interested in something that 5 you -- that you commented on. The OPP officers that were 6 seconded to your office -- am I correct in saying that, 7 firstly? 8 A: Hmm hmm. 9 Q: That they continued to be and to have 10 certain functions, they continued as peace officers 11 notwithstanding that they are seconded to your office. 12 Were you aware of that in 1995? 13 A: No. 14 Q: And when did you become aware of 15 that? 16 A: Recently. 17 Q: All right. If I can just direct you 18 to -- again to Tab 2 at pages 13 and 14 under the heading 19 "C" in the middle of page 13, "What is the Deputy 20 Minister's Role in Informing the Minister?" 21 And you've taken a look at that and you 22 understand that the Deputy Minister is the Chief 23 Administrative Officer of the Ministry and he or she 24 should act as a buffer between the political authority 25 and the Commissioner. And I believe that's what you've
2801 already indicated, you -- the -- the function that you 2 had discharged? 3 A: Yes. 4 Q: How would the rest of the Government 5 be communicating with the police? How would they have -- 6 A: Well in normal circumstances there 7 would be no contact directly with the police. I -- I 8 recall my first learning of the role of the OPP when I 9 was the deputy Minister of the Human Resources 10 Secretariat and had received a very serious death threat. 11 At that point I had been informed that the 12 OPP were the force that actually protected deputy 13 Ministers and Ministers. And so in that sense, deputy 14 Ministers would have been aware of security concerns or 15 security concerns around the office or security concerns 16 in the OPP or matters of demonstrations on Queen's Park. 17 There may have been, in the minds of some 18 of our Ministries, like MNR, where they had quasi- 19 enforcement officers with or without the right to bear 20 arms. 21 It's possible that those kinds of 22 officers, who worked in parks, would have had operational 23 links, information links with the OPP. 24 But most Ministries, in the normal course 25 of affairs, subject to an Inquiry or an investigation
2811 taking place, would have had limited or no contact with 2 police. 3 Q: And if they wanted to get some 4 information on a policing issue, would -- 5 A: They would have come to our ministry. 6 They would have observed the protocols that we were the 7 primary conduit for information to and from. 8 Q: Thank you for that. I want to ask 9 you about the OPP Commissioner's role, but before I do 10 that I just want to cover off this last area. 11 On page 25 of the same document, the first 12 bullet at the top of the page reads: 13 "The Minister may ask to be informed on 14 the general activities of the OPP as 15 they pertain to any investigation or 16 activity." 17 And then it goes on to suggest -- 18 A: Hmm hmm. 19 Q: -- that there's a proper channel -- 20 A: Hmm hmm. 21 Q: -- for doing that -- 22 A: Hmm hmm. 23 Q: -- and that was through your office-- 24 A: Hmm hmm. 25 Q: -- as deputy Minister. And it goes
2821 on to read: 2 "To do otherwise might be seen as 3 political interference in the 4 operations of police." 5 A: Yes. 6 Q: And lastly: 7 "The Commissioner may refuse to make 8 full report if he believes it would 9 contain information disclosure which 10 would be contrary to public interest." 11 Had you any occasions where, in making a 12 request to the Commissioner, that there was a refusal to 13 provide you with -- with such information? 14 A: No. Well, let me step back by saying 15 I don't recall, in my two (2) years of serving Minister 16 Runciman, a requirement to ask details of the Solicitor - 17 - of the OPP, of the Commissioner on operational matters. 18 Q: Okay. What was your understanding in 19 1995, Dr. Todres, of the Commissioner's role and 20 obligations? 21 A: Well, the Commissioner was the chief 22 executive officer, if I can put it that way, of the 23 Ontario Provincial Police, responsible for, as any CEO, 24 of a very large and complex organization, responsible for 25 the administration and those matters of policy that fell
2831 below, I would call it meso policy, not macro policy, 2 those levels of policy that would fall within an 3 operational context of a -- of a police service. 4 In addition to which he was -- had 5 responsibilities to inform us, by statute, of matters 6 that I needed to know, and through me, the Minister ought 7 to know. 8 He was considered, also, to be an 9 extremely valuable member of the senior management team. 10 And in addition to his OPP responsibilities, would have 11 been expected to serve as -- as a proactive and engaged 12 member of the senior management team as we were looking 13 at things as serious as 40 percent cuts to the Ministry. 14 And he was considered to be, by us, in 15 addition to being the Commissioner of the OPP, I might 16 say, in perforce, being a leader, a leader in the 17 policing community. 18 Q: All right. And you see the comments 19 in that same document, lastly, Dr. Todres, at pages 27 20 and 28 under the heading. "Commissioner's 21 responsibilities." 22 You've had a change to review that -- 23 A: Hmm hmm. 24 Q: Can you tell us how that accords with 25 your understanding of --
2841 A: Completely -- 2 Q: -- that role. 3 4 (BRIEF PAUSE) 5 6 Q: In the diagram that you had provided 7 for us, P-984, which we'll put back up on the screen, 8 there is a police -- policing services division. 9 A: Yes. 10 Q: And you mentioned a number of names 11 earlier, including Ron Fox, Barbara Taylor. 12 Where would they fit within this -- 13 A: Right. 14 Q: -- within this -- this structure? 15 Where would the policing services division -- 16 A: So policing services was over here. 17 It was called -- I've incorrectly titled it actually. It 18 was Policing Services, meaning the regulation of 19 municipal police. 20 Barb Taylor was here, she was one (1) of 21 two (2) advisors that I had reporting to me on 22 substantive matters in the Ministry. So she would have 23 been the official liaison with the OPP. 24 And a very competent person and -- and 25 very able to read into the briefing notes. I had
2851 complete confidence in her as we have the Corrections 2 folks. And this is the -- the Ron Fox, Scott Patrick 3 unit. 4 Q: And if I may -- if I may, just for 5 the record, Dr. -- Dr. Todres, the area that you're 6 pointing at now is immediately adjacent to the box 7 marked, "Deputy Minister" -- 8 A: That's correct. 9 Q: -- on the left side. 10 A: Thank you. So, in fact, the -- the 11 municipal police, there were branch directors and so on, 12 it was the ADM and the person of Mr. Fred Peters who 13 reported directly to me. And this rather large Deputy 14 Minister's office had a particular unit attached to it 15 dealing with Aboriginal policing. 16 And as I indicated earlier, because it was 17 unusual in terms of its mandate, it wasn't strictly 18 Provincial whereas all of the ADM's had responsibility 19 for things -- over matters that were clearly Provincial, 20 it was Federal, Provincial in nature. It was highly 21 specialized. 22 And my former predecessors, both Ministers 23 and Deputies, felt that it was of sufficient interest and 24 importance that it required strategic placement attached 25 to the Deputy Minister's office.
2861 Q: And given the -- given the Federal 2 Provincial nature of that, did you have dealings then 3 with a Federal counterpart? 4 A: Yes, I did. I spoke to him on many 5 occasions and they range from Aboriginal policing, we 6 were extremely interested in notwithstanding the cuts to 7 see what we could do about, A) Changing the quality of 8 existing arrangements. 9 In other words, there were severe issues 10 with respect to capacity and equipment and even matters 11 like housing and the status of the buildings in which the 12 offices were located. 13 We were also very consider -- concerned 14 about the relatively small quantum of money actually 15 being allocated to Aboriginal policing. And it was the 16 view of the unit and myself that we wished to advocate, 17 both with our Minister and with the Federal Government, 18 our thinking being that again from a policing 19 perspective, one of the prerequisites for self-government 20 is the ability to have a competent independent and 21 adequate Aboriginal policing force. 22 So that would have been one of the 23 subjects I would have discussed with the Federal Deputy. 24 The Federal Deputy had a slightly different 25 organizational setup than we did. I called him, if I
2871 could, the Paperclip Deputy, in the sense that he had 2 three (3) independent agencies, arm's length agencies 3 reporting to him; CSIS, the RCMP and an independent 4 agency dealing with corrections. 5 So he would have had -- he was far -- and 6 none of those were "Federal employees" as it were, they 7 were employees of their own agencies. So the Deputy of 8 my Federal counterpart had essentially an ADM who was 9 essentially a policy person and someone who collected 10 briefing notes. 11 So he would have met regularly with the 12 Commissioner of the RCMP and so on. So it was a slightly 13 different relationship than the one we had. And we would 14 have talked about matters like DNA and testing and we 15 actually had a very serious and heated discussion on DNA. 16 17 We would have talked about -- now I won't 18 remember what it's called, but the Federal database of 19 perpetrators and so on and sexual offenders. So we would 20 have had regular contact. 21 And in these matters with Aboriginal 22 policing, the -- the challenge we faced was how it was in 23 the budgetary process we could try to convince our 24 political masters that this would be an area that would 25 require increased funding, not decreased funding.
2881 Q: And in your relationship with the -- 2 with your Federal counterpart, were there dealings or 3 discussions specifically related to Aboriginal matters 4 beyond Aboriginal policing? 5 A: Well we spoke -- we spoke in 6 September of 1995 about matters relating to Ipperwash, in 7 particular. But prior to that, I would have had 8 relatively limited contact with the Federal Deputy and I 9 don't think we had had any Federal Provincial meetings of 10 Justice Ministers at that point. 11 I later saw him in the federal/provincial 12 arena when Ministers of Justice got together. 13 Q: And just lastly on that -- on -- in 14 this area, was there -- how was the relationship? How 15 would you describe the working relationship with your 16 Federal counterpart? 17 A: Well again, to give this a bit of 18 context, perhaps, as an old hand at Federal/Provincial 19 relations, most of the Deputy Ministers, including 20 myself, had very strong and positive relationships with 21 the Federal -- with our Federal officials, our 22 counterparts. 23 The Government of the day, however, was 24 re-thinking Ontario's relationship with the Federal 25 Government and was changing the tone and the nature of
2891 discussions so -- and in other portfolios it was very 2 evident. So I will only say that at the staff level we 3 had excellent and -- and very collegial relations. 4 Q: You've indicated that you had met 5 with the former Deputy Solicitor General -- 6 A: Hmm hmm. 7 Q: -- at some early part in your -- 8 A: Hmm hmm. 9 Q: -- of your tenure? 10 A: Yes. 11 Q: And she would have explained some of 12 the things that you might anticipate? 13 A: That's right. She would have 14 explained the structure and, as a matter of fact, I think 15 that I sought her advice early on, probably within the 16 first two (2) or three (3) days. I valued her advice; 17 she was very seasoned and very numerate. 18 And she would have talked to me about some 19 of the top-line issues from her perspective, whether it 20 was financing, policy issues, administrative concerns 21 that she might have had, and she was very responsible in 22 terms of making sure that the handoff of the baton, if I 23 can put it that way, was as smooth as possible. 24 Q: Would she have described or 25 introduced you to the -- the people that you've indicated
2901 were in charge of Aboriginal policing? You've identified 2 Ron Fox as being one (1) of them. 3 A: Yes, she would have explained the 4 nature of that unit. She would have explained the 5 presence of Barb Taylor in the office and the 6 Correctional staff in the office. 7 Q: And explained their -- their roles as 8 well; is that right? 9 A: Yes. 10 Q: And can you recall, for us, what that 11 explanation was? 12 A: Well, I don't -- I can't -- I can't 13 recall verbatim what she said, but the gist of her 14 argument was that this was a very large and complex 15 ministry, that the tradition had arisen whereby, in 16 addition to issue units and ADM's working on this, in 17 order to meet the machinery of Government's requirements 18 for constant awareness and being on top of issues, that 19 it was difficult for a deputy to have that kind of 20 substantive knowledge without access to advisor's who 21 weren't caught up in the day-to-day operational issues. 22 And remember, these were -- each of these 23 ADM's had very, very difficult, highly stressful, 24 operational jobs. So I became persuaded of her argument. 25 And she indicated, at length, what the secondment meant;
2911 that these were not officers of the OPP, that they were, 2 in fact, seconded to me -- would be seconded to me and 3 would maintain the appropriate relationship with the 4 Deputy and the Minister and the filtering of appropriate 5 information both backwards and, you know, both to the 6 Minister and from the Minister. 7 Q: You mentioned earlier that you only 8 recently became aware that Ron Fox continued to see 9 himself as a peace officer within the meaning of the 10 Police Services Act? 11 A: That's correct. 12 Q: And I take it that that wasn't 13 explained to you -- 14 A: No. 15 Q: -- by your predecessor? 16 A: No. 17 Q: All right. 18 19 (BRIEF PAUSE) 20 21 Q: Did Mr. Fox or other seconded OPP 22 officers have a reporting obligation to anybody else 23 other than you, to your knowledge? 24 A: No. 25 Q: Did Mr. Fox ever advise you that he
2921 had ongoing responsibilities as a peace officer? 2 A: No. 3 Q: Did he ever indicate to you that he 4 was concerned, as a seconded police officer, that he may 5 run into conflict of interest type situations? 6 A: We -- I don't recall having a 7 conversation like that. But I can tell you that, from a 8 matter of practice, and in terms of what it is that we 9 discussed, that he appeared to me to be a very seasoned 10 man with a great deal of professional judgment, who 11 thought very carefully about what level of detail he 12 wished to share with me and would flag those kinds of 13 issues that he believed were sensitive and not to be 14 presented directly to the Minister. 15 And from our perspective, I will say to 16 you that we always felt that the presence of an executive 17 assistant in a room, from the political side, was 18 tantamount to a Minister being in a room. 19 So, we would have been very careful. In 20 most cases, perhaps not in all, but in most cases. At 21 least, that -- that was always my position as, I suppose, 22 a political scientist, not just a Deputy Minister, that 23 we would be very careful. 24 In the main there may have been a few 25 exceptions, for me to be briefed first by either Ron and
2931 Scott and/or Barbara Taylor on matters pertaining to 2 policing before we made the call about whether or not it 3 was time to involve the Minister's staff, prior to the 4 Minister being briefed. 5 So, that was our standard operating 6 procedure. 7 Q: And aside from the professional 8 judgment as well as the experience that each of you would 9 have brought to these positions, was there anything in 10 writing by way of a protocol or a guideline that would 11 assist in ensuring that those kinds of conflicts were 12 able to be identified and avoided? 13 A: Not that I'm aware of. 14 Q: Okay. Did Mr. Fox ever tell you that 15 he was -- that he had such concerns about potential 16 conflicts? 17 A: Not in the early days of our being 18 together, no. 19 Q: I can tell you that Mr. Fox did 20 testify here and on July the 11th, on the transcript at 21 page 18 to 21, he -- he confirmed for us that he did have 22 these concerns, but also confirmed that there was never 23 such conflict that did arise. 24 25 (BRIEF PAUSE)
2941 Q: How do you -- how can you describe 2 the working relationship that you had with Mr. Fox? 3 A: Well, I had the highest regard for 4 him. He was, I suppose, one of the -- if I had to share 5 with you the three (3) or four (4) characteristics that I 6 admired most about someone working in our Ministry, they 7 would have had to have been: Calmness under pressure; 8 the ability to exercise judgment; the ability to respond 9 quickly to matters emerging. And he fulfilled all of 10 those conditions. 11 I considered him to -- and in his 12 particular case, and in the case of Scott Patrick, I 13 would have wanted to see someone in Aboriginal policing 14 who had a set of values that would have supported 15 Aboriginal policing that would have supported a respect 16 and an admiration for Native culture, and I found that in 17 Ron Fox. 18 Q: And insofar as their filling those 19 positions in the -- in the manner that you've described, 20 do you know what their qualifications were? 21 Did you have any part in -- in selecting 22 them? 23 A: No. I inherited, as it were, the 24 staff that were in my office. But I was led to believe 25 in discussions, I suppose, over the -- over the -- in the
2951 beginning of my tenure in that position, with both Barb 2 Taylor and Ron, maybe not with Scott, that these were -- 3 these were positions that were valued. 4 They were considered to be important 5 stepping stones in one -- in one's career. For many 6 people on the operations side who were contemplating 7 promotion, it would have been very useful for OPP 8 officers, just as it would have been for rank and file 9 civil servants to have both operational and policy 10 experience. 11 It was considered, if I can put it this 12 way, a coveted position to be able to have -- to be able 13 to sit on a perch where one looked at the Province as a 14 whole, would have experience with the political and 15 bureaucratic systems in the centre in way in which one 16 couldn't in a normal, if I can put this, in a normal 9:00 17 to 5:00 job in the OPP. 18 So the sense I was given was that the 19 Commissioner would have thought long and hard about who 20 it was that occupied that position and what the 21 particular requirements were. 22 Now, I don't recall whether the deputy sat 23 on an interview board or whether, in fact, the person was 24 nominated and accepted by -- by the deputy. 25 But I do remember when -- when Barb Taylor
2961 was promoted to become my executive assistant and 2 therefore her position on that particular chart was made 3 vacant, that I did have conversations with the OPP. 4 There was an extensive search. It was 5 considered to be, you know, a high profile developmental 6 opportunity, as we would say, in bureaucratese. And I was 7 afforded the opportunity to meet with one (1) or two (2) 8 candidates. 9 And I found the two (2) -- if I recall 10 correctly, there were one (1) or two (2) candidates that 11 were presented to me and I was particularly interested in 12 one and hired that person at the time. 13 So I feel that the OPP took that position 14 very seriously because it was the conduit subject to 15 everything that we've just said. The statutory 16 requirements and was seen as a very serious position 17 indeed in one's career. 18 Q: Part of their duties would be to 19 provide you with briefings -- 20 A: Hmm hmm. 21 Q: -- as you've indicated to us. 22 And did I understand you correctly that 23 in terms of those briefings you would want to avoid 24 having political staff in the room? 25 A: Well I think in order to exercise the
2971 filter which is that it was my responsibility as the 2 Deputy Minister to sort out the operational from the 3 policy and what data and information needed to be 4 presented to the Minister. 5 As a matter of practice I would have tried 6 not to have political staff present. And I mean, we 7 might -- I might just spend a moment or two on that to 8 provide context. 9 I don't think -- well my -- my view of 10 British Parliamentary democracy and ministerial 11 accountability through experience has been defined such 12 that it is highly problematic for a Minister to stand 13 behind a defence that he wasn't in the room but his 14 assistant was. 15 And to stand behind that argument and say, 16 oh and therefore I wasn't informed. So as a matter of 17 practice in order to ensure that the Minister was 18 protected in most, perhaps not all cases, I would have 19 had a private briefing. 20 And as it turns out Mr. Fox and Mr. 21 Patrick actually had offices very close to mine, 22 literally half a desk, you know, a desk away, I would 23 have met with them first. 24 They would have checked with me first and 25 then we would have determined whether or not we wanted to
2981 go through the next step which was calling the Executive 2 Assistant again, you know, a half a floor away, brief her 3 and then determine when it is that we were going to brief 4 the Minister. 5 If it was extremely urgent, if he were in 6 the office, we would work carefully to see him 7 immediately. If it was of a lesser import -- or less 8 problematic, we would fit it into the weekly briefing. 9 Kathryn and I strive very hard to have at 10 least a weekly briefing with the Minister on -- the three 11 (3) of us and there would be formal briefings with the 12 Minister with content staff coming before him. 13 Q: In terms of your observation and 14 comment, that the Executive Assistant is tantamount to 15 having the Minister in the room, do you know how widely 16 that sentiment was shared? 17 A: Well I would have suspected that that 18 would be what most Deputy Ministers would assert. 19 Q: All right. What about Mr. Fox and 20 Mr. Patrick? 21 Do you know whether or not they subscribed 22 to that? 23 A: Yes. Well -- I don't recall having 24 direct conversations but their behaviour would suggest 25 that they did which is why they briefed me first and then
2991 we made a collective decision about what we would do with 2 our next steps. 3 Q: We'll turn then to the summer of 4 1995, Dr. Todres and I -- I know that we were speaking 5 generally about structure and such and that you were 6 appointed as you've indicated at the outset of your 7 testimony in June of 1995. 8 Your appointment would have came from the 9 Premier? 10 A: Correct. Via the Secretary of 11 Cabinet. 12 Q: And what was your understanding upon 13 your appointment with respect to the new Government's 14 focus? 15 Specifically with respect to Aboriginal 16 issues? 17 A: Well let me begin again by placing 18 just a little bit of context on your question. Although 19 I was not the Deputy Solicitor General during the 20 election lead-up to the Conservative Party becoming the 21 Government of the day. 22 In my other portfolio I like every other 23 seasoned deputy minister would have been following very 24 carefully the campaign commitments of all three (3) 25 parties throughout the election.
3001 And we would have been on high alert, if I 2 can put it that way, to ensure that should there be a new 3 government, we would be prepared with briefing books and 4 all of the transitional requirements for a new minister. 5 So I would have assumed, I didn't expect - 6 - I didn't know where my appointment would be come the 7 election, but that no doubt would have been done by my -- 8 my current -- the staff and the Solicitor General in 9 Corrections. 10 I would have read prior -- there was a 11 hiatus between the Government winning the election and 12 the Deputy Minister appointments. 13 There were a fair number of Deputy 14 Ministers who had been fired by the new Government. I 15 think that it wouldn't take much to infer that those were 16 -- were candidates that they didn't feel were sympathetic 17 to the new set of political direction. 18 So, I would have read documents, I would 19 have read the Common Sense Revolution and would have had 20 a sense that this was a law and order government, where 21 Aboriginal issues were not, to say the least, a high 22 priority. 23 When I got the job, and when I was briefed 24 by -- by the Secretary of Cabinet, should Aboriginal 25 matters have been a priority area, they would have been
3011 communicated to me at the first meeting and they were 2 not. 3 It was clear to me within the next month 4 or two (2), and I'm not sure how I became aware of that, 5 whether I was introduced to this in a Deputy Minister's 6 Council which was a -- I think it was a weekly meeting 7 that we'd all went to. 8 At least if not a weekly, then a bi-weekly 9 meeting Chaired by the Secretary of Cabinet to keep all 10 of the deputies informed of the latest policy 11 developments. 12 Early on in the tenure of the new 13 government, it was made plain to me that the set of 14 policies that had been developed by the former government 15 were no longer -- I want to say operational, but were no 16 longer of the policy framework -- were no longer adopted 17 by the -- by the current government. 18 Q: All right. As an example of that, 19 I'll ask you to turn to Tab number 5. It's a -- 20 A: Yeah. 21 Q: Exhibit P-643, statement of political 22 relationship, SPR guidelines, questions and answers. 23 It's dated August of 1992 and prepared by 24 the Ontario Native Affairs Secretariat. 25 First of all, had you -- have you seen
3021 this document before? 2 A: I don't recall seeing it. In my 3 portfolio then I would have been the deputy Minister of 4 Culture and Communications. 5 But I certainly recall it being prepared 6 and approved. 7 Q: Okay. 8 A: And if I may say, it was a very 9 significant development with respect to government-to- 10 government relationships between the Province and First 11 Nations peoples and the senior civil service was 12 extremely excited about this particular document and felt 13 that it was a significant development. 14 Q: When this was brought in, as you were 15 deputy Minister of Culture, Tourism and Recreation, did 16 you have any obligation to operationalize this, if I can 17 put it that way, within your Ministry? 18 A: Well we would have, you know, the 19 policy people would have reviewed it. I would have to 20 look carefully to see whether there were specific 21 provisions. 22 But a lot of it, I thought, had to do with 23 roles and responsibilities with respect to the Native 24 Affairs Secretariat and how it actually engages in 25 negotiations.
3031 Ours were more operational, but I suspect 2 that what would have happened that should new policy 3 development arise or in the course of doing our work with 4 grants, we would have had to have taken this framework 5 into account to see whether or not we needed to adjust 6 any of our out -- extant processes and procedures. 7 I have no vivid recall of that, but that 8 would have been the normal course of events. 9 Q: Was it a document that was used in 10 your duties as deputy Minister of Solicitor General and 11 Corrections? 12 A: No. I mean, what was made plain to 13 me, and I don't recall how, was that this was no longer 14 the policy. The policy as contained in this document was 15 no longer the official policy of the Ontario Government. 16 Q: All right. And when you say you 17 don't know how, I appreciate that you can't tell us 18 specifically, but -- but can you tell us whether it was 19 by way of a memo, by way of a ...? 20 A: No, I don't recall a memo, but it may 21 have been in the -- in the early days when the Secretary 22 of Cabinet was briefing all of us in terms of new 23 approaches. 24 We met quite frequently to understand what 25 the policy frameworks were and I suppose the other way of
3041 looking at it was that, from the perspective of the 2 senior staff who worked in the Premier's office, the 3 policy document was the Common Sense Revolution. 4 And if matters were not contained in that 5 particular document, they were not the policy of this 6 government. 7 Q: Well, let's turn to that Common Sense 8 Revolution document. You'll find that at Tab 6, it's 9 marked as Exhibit P-922. 10 Let me tell you that this is probably not 11 the -- the document that was originally used as, perhaps, 12 campaign material if I understand correctly, but it was 13 taken off -- off the internet, off the web. 14 A: Yeah. 15 Q: And you've had a chance to review 16 this before coming here to testify today? 17 A: Hmm hmm. 18 Q: In terms of the -- what were the 19 policy implications or imperatives of the Common Sense 20 Revolution within the Ministry that you then came into? 21 A: If I take you to page -- I believe 22 it's 6, under law enforcement. 23 24 (BRIEF PAUSE) 25
3051 Q: Page 6 of 17? 2 A: Thank you, yes. 3 Q: All right. 4 A: Page 6 of 17: 5 "People of Ontario are rightly 6 concerned about community safety in the 7 Province and increasing the incidents 8 and particularly the -- the increasing 9 incidents of violent crime so funding 10 for law enforcement and justice will be 11 guaranteed." 12 First of all, now how would that have been 13 operationally translated? 14 One of the first set of instructions we 15 were given was to meet this 40 percent cut target and 16 when we were given general instructions each of us would 17 have been given areas that said those are high priority 18 areas, they must not be touched. 19 So, in operational terms that would have 20 meant the Deputy Minister of Correctional Services and -- 21 and Solicitor General, you find the cuts but you can't 22 cut police officers. Those are sacrosanct. 23 So that what that meant for us in terms of 24 a budgetary challenge and remember this wasn't the first 25 year we'd been cutting, we'd been cutting staff for ten
3061 (10) years. 2 That would have meant from the perspective 3 of the Ministry the disproportionate percentage of cuts 4 would have had to fall on Corrections because so much of 5 the OPP would have been protected and at Municipal 6 Services we were a regulatory body we weren't -- we 7 weren't controlling the local municipal budgets of 8 police. 9 So that would have been the imperative. 10 Under Number 2 Helping make our community 11 safety and our justice system more efficient and at less 12 cost there were two (2) policy issues that arose from 13 that particular paragraph. One was could we take a look 14 yet again at what community policing means? 15 And there were a series of initiatives. I 16 recall looking at Japan and a variety of other 17 jurisdictions and we took to mean efficiency the prospect 18 of privatizing our jails. The government had a strong 19 conviction that the private sector could do a much better 20 job than the public sector in -- in the running of jails 21 and in the financing of the construction thereof. 22 And find in our justice system through 23 greater efficiencies, this is an important sentence as 24 well because what it would have meant was whereas in 25 other ministries if you met your cut targets you
3071 essentially, if I could put it in a metaphor, you place 2 that money in a bucket or in an envelope and that 3 envelope was deposited in the Central Bank called 4 Management Board of Cabinet. In other words, you got no 5 credit for your deposit, you just had to make the deposit 6 of the savings. 7 For the Ministry of the Solicitor General 8 what they were saying was if you can find internal 9 efficiencies you maybe by management board given the 10 opportunity to reinvest those efficiencies in other 11 operations. 12 So if you could squeeze a few staff in a 13 particular function maybe you could actually turn it over 14 to Parole and Probation or to a community savings project 15 or whatever. 16 So in effect what the law, what The Common 17 Sense Revolution did for us and a few other ministries 18 and I don't remember it may have been Education and a few 19 others; it may have been Health, we were in a slightly 20 privileged circumstance with respect to some areas being 21 protected. 22 Having said all of that, in political life 23 there's always a yin and a yang so while some were 24 protected others were seriously not protected and the 25 Corrections budget was severely curtailed and overnight
3081 Parole and -- halfway houses were shut down in a blink of 2 an eye. 3 4 (BRIEF PAUSE) 5 6 Q: If I can ask you to turn to Tab 7 Number 7, it's P-924 Bringing Common Sense to Community 8 Development? 9 Is this the document that you would 10 have...? 11 A: This I believe is the document I 12 would have read, yeah. 13 Q: All right. Just before I turn to 14 that if I can just bring you back to The Common Sense 15 Revolution, 9 -- P-922, we have had a chance to look at 16 it in the Inquiry thus far and you'll agree with me that 17 there isn't anything that deals specifically with 18 Aboriginal issues? 19 And for the record you're nodding your 20 head -- 21 A: Yes, that's right. 22 Q: -- in the affirmative, right? 23 And so if we turn to 924 Bringing Sense to 24 Community Development under the -- the headings -- under 25 the heading, Highlights, it's pages 4, 5, 15, 16, 17, and
3091 18. 2 You've had a chance to review those. 3 And I guess the only question that I 4 wanted to ask you, is whether there was anything that 5 arose out of that document that you would be required to 6 operationalize within the Ministry you were in? 7 A: Not -- not particularly. What was 8 conc -- what was of concern to us from the Aboriginal 9 policing point of view was that it would be very 10 difficult for us to garner support for increasing support 11 to those particular -- to that particular vote and item 12 and that was indeed borne true. We did not receive 13 additional funding. 14 Q: All right. And what happened to 15 that? What happened to that program? 16 A: I don't believe it was cut. I would 17 have to -- we would have to ask staff. We went to great 18 effort to see that it was sustained. We also made 19 arguments to increase the funding for -- on the basis of 20 need. 21 But the spirit of the revol -- of the CSR 22 as we called it was to a decrease not increase special 23 initiatives in the Aboriginal world. 24 Q: If you can turn lastly in this 25 particular line to the next document at Tab 8. It's P-
3101 925, it's a document entitled "The Voice for the North 2 Report of the Mike Harris Northern Focus Tour." The 3 date on that you'll see is January 1995. 4 And this is some excerpts from that 5 particular document which I understand you've had an 6 opportunity to review? 7 A: I've only briefly read it I must 8 confess. 9 Q: And even in that brief review of 10 that, are there -- was there any items in there that had 11 implications for the Ministry that you were then in? 12 A: Well the way I would answer it is 13 that the momentum would stop. 14 Q: All right. 15 A: It wouldn't affect policing per say. 16 It wouldn't affect Corrections per say. But those 17 underlying conditions that lead to certain issues would 18 not be addressed. 19 Q: And if I can just go back to -- to an 20 earlier comment that you had made and see how this -- see 21 how this squares. 22 That is you had commented earlier that at 23 least one of the areas coming out of the Common Sense 24 Revolution that was protected with policing? 25 A: Yes.
3111 Q: And on the other hand Aboriginal 2 policing received no new monies, is that fair? 3 A: That's my recollection. 4 Q: All right. 5 A: So that would have been in the spirit 6 of language like perhaps not so much in this document, 7 but in the former document. That we have to respect 8 other rights as well. We have to respect conservation 9 rights as well as hunting rights and so on. 10 In other words, the way the Centre defined 11 policing was exclusive of Aboriginal policing. 12 Q: Okay. And is there any policy reason 13 for that that you can tell us about? 14 A: Well I -- I can't speak to the 15 motivation of those who wrote the CSR, but those who 16 interpreted at the Centre of the CSR would have said that 17 the Common Sense Revolution was not -- was to change -- 18 that we were silent on -- on Aboriginal policies or we 19 were going to not extend it. 20 There was a new take on it. And it wasn't 21 an area that they -- they wished to see grow. That's all 22 I -- that's all I can really say on that point. 23 Q: And what of the commitments that 24 might have been made by previous administrations to 25 Aboriginal groups or Aboriginal people?
3121 A: Well what I do recall early on in the 2 mandate of the new Government, I recall attending a 3 meeting with Minister Runciman and Minister Hodgson and 4 probably the Deputy of Minister Hodgson of a Provincial 5 meeting of Chiefs. 6 And I -- I can't say whether that was a 7 meeting that they had called specifically or whether 8 given the timetable and the difficulty it is and 9 achieving large meetings, whether that was an ONAS led 10 meeting that had been planned for months in advance prior 11 to the election. 12 And if memory serves, the purpose was to 13 be polite but to inform the Chiefs of Ontario that there 14 would be a new approach and a new policy, framework, 15 whatever it would be and the current framework was no 16 longer in place. 17 Q: All right. Dr. Todres, in the 18 summer of 1995 as part of the numerous briefings that 19 you've indicated to us, were you briefed with respect to 20 the OPP's policies and practices relative to blockades, 21 Aboriginal blockades specifically or protests? 22 A: Well, I don't recall having a 23 specific briefing on that, but the -- the ONAS position 24 and the general tenor of the discussions I'd had was an 25 emphasis on conciliation, on -- on discussion, on
3131 negotiation, on -- on slow but sure. So that would have 2 been what would have been communicated to me. 3 Q: Okay. If I can ask you to turn to 4 Tab Number 4, it's a briefing note for the 5 Interministerial Policy Forum dated November 26th, 1991. 6 We've marked it here as Exhibit P-472. 7 Can you tell us if you were aware of this 8 document back perhaps even in 1991 or certainly in 1995? 9 A: I wasn't aware of the document, but I 10 would have been aware of the conclusions contained in the 11 document. 12 Q: And -- 13 A: And that was the approach that was 14 taken. I recall when the Interministerial Committee was 15 actually formed during the NDP regime and these were the 16 operating tenets or the principles under which 17 negotiations were undertaken. So I was familiar with 18 that; not this particular document but the -- 19 Q: All right. 20 A: -- the sum and substance of it. 21 Q: And during that summer of 1995, while 22 I appreciate it would have been enormously busy for you, 23 perhaps that's even understating it, do you recall 24 whether you would have had a briefing on the emerging 25 situation at Ipperwash first of all with respect to the
3141 Ipperwash Base; that is Camp Ipperwash? 2 A: Yes. 3 Q: And you know who would have provided 4 that briefing? 5 A: I had a detailed briefing on 6 September 5th, but I would have had generic briefings, 7 more general briefings in -- in either July and August. 8 I usually take a holiday in the summer so I may have been 9 away for several weeks in either July or August, but I 10 would have -- I would have received -- and I was aware of 11 the general outlines of the topography, the issues in 12 general, yes. 13 Q: And -- and again I'm sorry if I've 14 already asked this and perhaps you've answered, but can 15 you tell us who it was who would have provided the 16 briefing? 17 A: Oh, I'm sorry, it would have been -- 18 it would have been primarily Ron Fox and Scott Patrick 19 who would have apprised me of that? 20 Q: Okay. If I can ask you to turn to 21 Tab Number 10, it's MSGC Issue; it's Exhibit P-561 22 Inquiry Document 2000987. 23 The issue -- you'll see at the top and 24 it's dated July 12th of 1995 and you'll see the issue is 25 Acquisition of Camp Ipperwash by Kettle/Stony Band?
3151 A: Yes. 2 Q: And specifically do you recall seeing 3 this as a -- as an issue note? 4 A: I -- 5 Q: Would this be the type of thing that 6 would be brought to your attention? 7 A: I wouldn't have necessarily seen the 8 note. I don't recall seeing the note in particular, but 9 this would have been the subject of a verbal briefing. 10 Q: Okay. And just from -- from that 11 answer you seem confident that you would have been 12 briefed on that? 13 A: Hmm hmm. 14 Q: There are what I'm going to suggest 15 to you are updated versions of that same document at Tabs 16 10 and 11; those are Exhibits P-561 -- 17 A: Hmm hmm. 18 Q: -- and 587, respectively. 19 Do you recall seeing those documents or -- 20 or receiving briefings? 21 A: I recall -- I -- I can't specifically 22 recall the briefings, but they differ little with the 23 exception of a couple of points that are added toward the 24 end as more information was made available. 25 And in the course of -- of performing
3161 their duties Scott and -- and Ron would have kept me up 2 to date. 3 Q: All right. 4 A: I may have read them, but they 5 certainly would have given me a verbal briefing. 6 Q: And we are told here in -- in this 7 Inquiry, Dr. Todres, that on the 29th of July of 1995 8 that people that had earlier been on the Camp, on the 9 Army Base, had moved into the built-up area; that is the 10 barracks area? 11 And were you made aware of that? 12 A: Yes. 13 Q: All right. And do you know how it 14 was that you would have been made aware of that? 15 A: I had a -- I had a briefing. 16 Q: I'm sorry? 17 A: By Ron -- by -- I recall being made 18 aware of that. 19 Q: All right. And in terms of your 20 being made aware of that did you get any sense of the 21 degree of concern or -- or level of anxiety or any such 22 thing? 23 A: At that stage of -- of -- at that 24 stage in time, it was a watching brief. We weren't 25 particularly concerned; we were aware of the
3171 circumstances. It was a complex case. 2 But there were no alarm bells ringing, no. 3 Q: And at Tab 12, Dr. Todres, it's 4 Inquiry Document 2000985. It's marked as P-562. 5 And it's a further issue note dated July 6 31st of 1995, and you'll see that it's been updated to 7 include now the occupation of the barracks land. 8 Do you recall seeing the document again 9 or -- 10 A: I don't recall seeing it in 11 particular, but on the point about followup with respect 12 to establishing dialogue between police and Stoney Point 13 First Nations, I can't say specifically whether it was a 14 July 31st or thereabouts, because one appreciates that 15 these things have a tendency to be blended with one 16 another. 17 But I was made aware by Ron Fox that there 18 were attempts to reach out to the Mennonite community who 19 had experience in negotiations and that there were a 20 number of efforts underway. 21 I wouldn't have been, perhaps, apprised of 22 every single detail, but that there were efforts underway 23 to do just this, to establish dialogue between police and 24 Stoney Point First Nations people. 25 Q: And the Mennonites you referred to,
3181 might that be the Mennonite Central Committee? 2 A: Yes. 3 Q: All right. And the function of this, 4 as you understood it, or -- or as was told to you? 5 A: Negotiations -- was to initiate 6 healthy, respectful dialogue and to push negotiations 7 along. 8 Q: All right. To your knowledge, was 9 that contact ever made with the Mennonite Central 10 Committee and, secondly, whether or not they had actually 11 engaged in the function you've just described of them? 12 A: I thought they had been. It will be 13 for the Commission to determine that, but I -- I believe 14 at the time -- I had believed that they'd -- contact had 15 actually been made and I remember coming from Manitoba 16 with a large Mennonite population and having studied 17 economic geography with the Mennonite, I remember 18 thinking about that and pausing and thinking about their 19 religious commitments and was pleased to know about the 20 existence about the -- of the Committee. 21 So, I believed at the time that they were 22 chatting. I -- I don't know whether that actually 23 happened. 24 Q: All right, thank you. You were aware 25 of the Interministerial Committee on Aboriginal
3191 Emergencies I think you've indicated that earlier. 2 You were aware that it was set up under -- 3 under the Ministry of the -- office of -- pardon me, 4 Native Affairs Secretariat? 5 6 (BRIEF PAUSE) 7 8 Q: Yes? 9 A: Yes. 10 Q: All right. And did you know that 11 they would be meeting with respect to this -- to this 12 issue as well? 13 A: I would have expected them to. That 14 was their function that when issues such as these arose, 15 that was precisely why we had a -- or the Government had 16 established a decade before or a number of years before 17 such a committee, yes. 18 Q: And what did you understand the 19 function of that committee to be? And you may well have 20 told us about this already, Dr. Todres, and I apologize 21 if I've asked you -- 22 A: No problem. I understood is there to 23 be three (3) functions -- three (3) or four (4) 24 functions, the first of which was to bring together all 25 of the ministerial interests across the broad spectrum of
3201 government. 2 So the MNR's and the Solicitor Generals 3 and so on and so forth, first of all to ascertain what it 4 -- what was actually happening on any particular file. 5 And, you know, I remember feeling, even in 6 the early '90's when there was the first blockade, I 7 think in the north, Northern Ontario, a tremendous 8 confidence in the -- in the professional capacity of the 9 individuals who were actually attached to this committee. 10 So information sharing. I understood them 11 also to have some limited operational authority, perhaps 12 to engage in a negotiator to -- to actually do some 13 things, not just think about things. 14 They would have also had recommendatory 15 responsibility that should something reach a particular 16 level of heat in the sense of -- of issue management. 17 They would be entrusted by the Government 18 as a Interministerial Committee to seek to look at a 19 variety of options. 20 They were only middle level managers and 21 they would have had to take those suggestions both 22 through deputies and eventually to appropriate ministers 23 and/or Interministerial Cabinet Committee should -- 24 should it be required for approval. 25 So those three (3) functions.
3211 Q: And if I can ask you to turn to Tab 2 number 20, it's Inquiry Document 1012232. It's P-498; do 3 you see that? 4 A: Hmm hmm. Yeah. 5 Q: It's an Appendix: 6 "Guidelines for Responding to 7 Aboriginal Emergencies [and then in 8 brackets] (Blockade)?" 9 A: Hmm hmm. Yes, I see it, thank you. 10 Q: And having a chance to review that 11 document as well as the discretionary powers that are set 12 out in Number 11 on the second page. 13 How does that accord with your 14 understanding of the function and role of that Committee? 15 A: 100 percent. 16 Q: As the Deputy Minister, would it be 17 your responsibility, Dr. Todres, to appoint a -- a 18 delegate or a member of that Committee who would 19 represent the Office of the Solicitor General in that 20 Committee? 21 A: Yes. Should there have been a 22 vacancy, if there had been an incumbent, the incumbent 23 would have continued in his or her role. 24 Q: And who is your -- your designate? 25 A: My designate was Ron Fox.
3221 Q: All right. 2 A: And he had been, I think, if memory 3 serves, he had been the delegate to that Committee given 4 the knowledge that he had of Aboriginal matters 5 pertaining to the job that he was carrying out. 6 Q: Okay. And perhaps I can direct your 7 attention to Tab Number 17, it's Inquiry Document 8 1000934, it's Inquiry Document -- Exhibit rather, P-502. 9 It's an e-mail from Ron Fox and it's 10 directed to yourself as well as Neil McKerrell. 11 First of all, who's Neil McKerrell? 12 A: When I looked at this I could only 13 conclude one thing. Neil McKerrell was the ADM of 14 Corrections, the Assistant Deputy Minister of 15 Corrections. He would not normally have been cc'd so I 16 can only conclude that I was on vacation and Neil was 17 often my appointment as an Acting Deputy Minister. 18 So I would have to infer that he received 19 this in his capacity as the Acting Deputy. 20 Q: Okay. And that's -- and the date 21 you'll see is August 2nd of 1995? 22 A: Yeah. So that may answer the 23 question as to whether or when I had my -- a brief 24 vacation. 25 Q: Okay. You've had a chance to review
3231 the contents of this -- 2 A: Yes, I have. 3 Q: -- of this e-mail? And it states at 4 the second paragraph, Dr. Todres, and I quote: 5 "I have been in continual contact with 6 Chief Superintendent Coles, OPP West 7 Region Commander, Superintendent Tony 8 Parkin, OPP West Region Operations 9 Officer and Inspector John Carson, the 10 assigned OPP Incident Commander at CFB 11 Ipperwash." 12 Do you see that? 13 A: Yes. 14 Q: I guess, first of all, from a policy 15 perspective, did you have any concern that this sort of 16 contact would be -- would be made. That there would be 17 continual contact with operational police officers by 18 someone within your office? 19 A: At the time I didn't. I don't know 20 how else one could have received the kind of information 21 that we required in order to determine what our next 22 steps would be. 23 Q: Okay. 24 A: And I assume that professional 25 judgment would be exercised on both sides in terms of the
3241 filtering that needed to occur. 2 Q: And when you say both sides, that's 3 the -- 4 A: From the OPP -- 5 Q: -- process you described earlier as 6 well? 7 A: That's right. 8 Q: Okay. And do you recall getting a 9 full briefing as -- as I can assure you Mr. Fox has 10 testified to, that he provided you a full briefing re the 11 contents of this particular memo? 12 A: When I got back, yes. 13 Q: All right. 14 15 (BRIEF PAUSE) 16 17 Q: And you mentioned earlier the -- the 18 -- in terms of the -- the reporting structure, the 19 information flow typically would go from the Commissioner 20 through your office. And as described, the process is 21 not quite like that is it? 22 I mean there's a departure from that 23 process in that it would appear that Mr. Fox went 24 directly to people on the ground, if I can put it that 25 way.
3251 A: Well I can see where you're going 2 with that question. The -- the sense we got on -- on 3 this particular file was that in the course of events we 4 would receive briefing notes from Phil Duffield, from the 5 staff who were working in the Commissioner's office. 6 But we had an Interministerial Committee 7 that wanted to have quick access to precisely what was 8 going on as quickly as possible. So provided that the 9 protocols would have been put in place and that the 10 appropriate kind of information would have been distilled 11 and that the appropriate buffers would have been put in 12 place, I don't recall being concerned at the time. 13 Q: All right. Were you aware, Dr. 14 Todres, that Ron Fox was also speaking with Julie Jai, 15 the Chair of the Interministerial Committee on Aboriginal 16 Emergencies? 17 A: Yes, and I would have expected him to 18 do so. 19 Q: That he would be briefing her about 20 the events on the ground as he's getting this information 21 from the operational officers, that he describes here in 22 his memo to you? 23 A: I would have expected, in order for 24 the Interministerial Committee to do its job, that it 25 would have had to have a fair statement of fact in order
3261 -- on -- on the basis of which it would be prepared to 2 recommend a variety of set of options to Cabinet. 3 And insofar as Mr. Fox was not operating 4 as an -- as an OPP officer and was trying to ascertain 5 information that was relevant to a series of decisions 6 that had to be made, I would have expected him to have 7 contact with Julie Jai who was a highly respected and 8 knowledgeable and experienced Chair of that particular 9 committee. 10 Q: All right. If I can ask you to turn 11 to Tab Number 19, it's Exhibit P-506 Inquiry Document 12 1011682? 13 These are the meeting notes of the 14 Interministerial Committee of August 2nd, 1995. I guess 15 I'd simply ask you whether or not you'd ever seen those? 16 A: No. 17 Q: And secondly, whether or not you 18 recall being briefed on the Interministerial Committee 19 Meeting outcome of August 2nd of 1995? 20 A: Well, as I indicated to you earlier 21 from that memo, with respect -- dated or sent to both 22 Neil McKerrell and I, I can't be convinced of this, but 23 it's likely that I was out of town and it's likely that 24 Neil McKerrell would have been briefed and I would have 25 been briefed by the time I returned mid August or late
3271 August on all of the developments to-date. 2 Q: You've indicated that this file, the 3 Ipperwash file, was certainly a watching brief -- 4 A: It was a -- yes. 5 Q: -- at that point in time? Did you 6 have any sense, in terms of the information that you 7 would have received, whether it was when you returned 8 from your vacation, the degree of urgency or -- or 9 concern relative to the file? 10 A: I had no concern. I was comforted by 11 the view that those tenets of engagement, both from the 12 OPP and from the Interministerial Committee, of slow go, 13 let's analyse what's going on, let's negotiate where at 14 all possible. 15 From all of the materials that I was given 16 and all of the verbal presentations it appeared that 17 things were going in the right direction. I had no 18 concerns. 19 Q: All right. Commissioner, I -- I 20 realize that it's probably one (1) or two (2) minutes 21 early but I wonder if this might be an appropriate place 22 to -- to end? 23 COMMISSIONER SIDNEY LINDEN: We usually 24 break at 4:30 but it's close enough. Do you want to 25 break now and we'll reconvene tomorrow morning at nine
3281 o'clock? 2 MR. DONALD WORME: I would be grateful if 3 we could, yes. 4 COMMISSIONER SIDNEY LINDEN: Okay. We'll 5 break now. 6 7 (WITNESS RETIRES) 8 9 THE REGISTRAR: This Public Inquiry is 10 adjourned until tomorrow, Wednesday, November 30th at 11 9:00 a.m. 12 13 --- Upon adjourning at 4:26 p.m. 14 15 16 17 Certified Correct, 18 19 20 21 22 _________________ 23 Carol Geehan, Ms. 24 25