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 October 18th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 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 ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) (np) Government of Ontario 23 Walter Myrka ) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) (np) Marcel Beaubien 14 Mary Jane Moynahan ) 15 Dave Jacklin ) (np) 16 Trevor Hinnegan ) (np) 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) (np) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) Chiefs of Ontario 13 Matthew Horner ) (np) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) (np) 19 Erin Tully ) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 SCOTT DOUGLAS PATRICK, Resumed 6 Continued Cross-Examination by Mr. Julian Falconer 10 7 Cross-Examination by Ms. Jackie Esmonde 92 8 Cross-Examination by Mr. Cameron Neil 114 9 Cross-Examination by Mr. William Horton 118 10 Cross-Examination by Ms. Andrea Tuck-Jackson 134 11 Re-Direct Examination by Mr. Derry Millar 152 12 13 PETER HOWARD STURDY, Sworn 14 Examination-In-Chief by Ms. Susan Vella 162 15 16 17 18 19 20 Certificate of Transcript 297 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-763 Document number 2000526. Memorandum 4 to Yan Lazor from Tim McCabe re. 5 Ipperwash Provincial Park occupation. 56 6 P-764 Document number 2003660. E-mail from 7 Julie Jai to Yan Lazor re. Ipperwash. 67 8 P-765 Document number 11000007. Memo to Nancy 9 Austin from Dennis Brown re. Ipperwash 10 litigation statements by Premier Harris, 11 September 06/'01. 85 12 P-766 Hand written notes of Mr. Scott Patrick. 13 September 08/'95. 111 14 P-767 Hand written notes of Mr. Scott Patrick, 15 September 11/'95. 135 16 P-768 Document Number 1008306. Letter from 17 Les Kobayashi to Michael George re. 18 Ipperwash Provincial Park Management 19 Plan, November 15th '89. 172 20 21 22 23 24 25
71 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-769 Document Number 1009916. Fax message 4 from Ian Seddon to Peter Sturdy 5 attaching 1. Oct. 10/89 letter from 6 Michael George to Pinery/Ipperwash 7 Prov. Parks, (Les Kobayashi) (page 02) 8 2. Kettle & Stony Point Council: 9 Comments on Preliminary Management 10 Plan (pages 3-7), 3. March 09/90. 11 Memo to file by John Osborn re: 12 Ipperwash Park Management Plan- Native 13 Councils (pages 08-10) Sept. 12/95. 179 14 P-770 Document Number 1007598. Letter from 15 John Osborn to Michael George re: 16 Ipperwash Prov. Park Management Plan, 17 April 12/90. 181 18 P-771 Document Number 1009919. Ipperwash 19 Prov. Park Management Plan, July '92. 184 20 P-772 Document Number 1009062. Fax from 21 Dan Elliott attaching correspondence 22 documentation, Sept. 11 '95. 195 23 P-773 Document number 1010310. E-mail from 24 Peter Sturdy to Jim Young Re. Ipperwash, 25 May 26, '94. 208
81 LIST OF EXHIBITS (CONT'D) 2 Exhibit No. Description Page No. 3 P-774 Document number 1009262. E-mail 4 from Les Kobayashi to distribution 5 list re. Ipperwash Native Issue 6 Update May 19, '95. 214 7 P-775 Document number 1009258. E-mail 8 from Les Kobayashi to distribution 9 list re. Ipperwash Incident July 10, 10 '95; July 11, '95 219 11 P-776 Document Number 1007835. E-mail 12 from Peter Sturdy to distribution 13 list re. Ipperwash, July 30 '95 224 14 P-777 Document Number 3000626. E-mail 15 from Peter Sturdy to Barry Jones, 16 Aug 01, '95. 235 17 P-778 Document Number 1012223. E-mail 18 Briefing Note from Peter Sturdy to 19 P. Malcolmson. August 01, '95 236 20 P-779 Document Number 1012238. E-mail 21 Briefing Note from Peter Sturdy to 22 Patricia Malcolmson, August 4th, '95. 259 23 P-780 Document number 1008863. E-mail from 24 Dan Elliott to Peter Sturdy re. Request 25 from OPP, Aug 17th, '95. 266
91 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-781 Document Number 1008868. E-mail 4 from Ed Vervoort to Peter Sturdy re. 5 Ipperwash security plan, Aug 31st, 6 '95. 275 7 P-782 Document Number 1009247. E-mail from 8 Peter Sturdy to distribution list re. 9 Ipperwash, Status Report number 1., 10 Sept 5th, '95. 285 11 P-783 Document Number 1010259. E-mail from 12 Les Kobayashi to Peter Sturdy re: 13 TPA letter, Sept 2nd, '95. 289 14 P-784 Document Number 1007834. 1. Page 1, 15 Email from Les Kobayashi to Peter 16 Sturdy re: Ipperwash; 2. Pages 2 and 17 3, Notice from Les Kobayashi to 18 occupants of Ipperwash; 3. Handwritten 19 note re. Neal Ferris, Sept 3rd, '95. 293 20 21 22 23 24 25
101 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is now 4 in session, the Honourable Mr. Justice Linden presiding. 5 Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good morning. 7 Good morning. 8 MR. JULIAN FALCONER: Good morning, Mr. 9 Commissioner. 10 11 SCOTT DOUGLAS PATRICK, Resumed 12 13 THE WITNESS: Good morning, Your Honour. 14 MR. JULIAN FALCONER: Good morning, 15 Inspector Patrick. 16 THE WITNESS: Good morning, sir. 17 18 CONTINUED CROSS-EXAMINATION BY MR. JULIAN FALCONER: 19 Q: Could I ask you, Inspector Patrick, to 20 turn to Tab 7 of the Commission Counsel documents, please. 21 Within Tab 7 before the notes we've already looked at is a 22 document entitled meeting May 12th, 1997. 23 Now, it is still part of what is Exhibit -- 24 as I understand is Exhibit P-417 which is Document 200 -- 25 MR. DERRY MILLAR: 517.
111 MR. JULIAN FALCONER: I'm sorry it's 517? 2 COMMISSIONER SIDNEY LINDEN: 517. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: My apologies Exhibit P-517 which is 6 Document 2003794. And I don't believe it's -- it's a 7 document you touched on with Mr. Miller, correct? 8 A: I don't believe I did, no. 9 Q: Could you look at it for a moment and 10 refresh your memory as to its contents, just to 11 familiarize yourself with it, because I have a few 12 questions about it. 13 14 (BRIEF PAUSE) 15 16 A: Yes, I have a recollection of the 17 meeting. 18 Q: All right. Now if you could assist 19 the Commission please, what is the context for the 20 creation of this two (2) page document? 21 A: My understanding -- 22 Q: This is by the way -- the second page 23 in the package at Tab 7 and the title is, Meeting May 24 12th, 1997 Ron Fox, Scott Patrick, Aurora. 25 A: Yes, sir. My understanding was there
121 was a inspector by the name of Greg Connolly, he's retired 2 now, he had been directed by Commissioner O'Grady to 3 prepare -- to collate all information and documents 4 relevant to OPP involvement at Ipperwash. 5 And as part of that he indicated an 6 interest in speaking to Superintendent Fox and I at some 7 point, and in fact did that on the 12th of May 1997. 8 Q: And who created these notes? 9 A: I don't know, sir. 10 Q: It wasn't you? 11 A: No. 12 Q: Have you had an opportunity to review 13 these notes in any detail? I mean I only gave you thirty 14 (30) seconds to familiarize yourself with the document, 15 but have you had a chance to look at these in any detail? 16 A: Not in great detail. But I have had 17 them in my preparation package, sir. 18 MR. JULIAN FALCONER: Mr. Commissioner, 19 I'm reluctant to -- to slow down your process. On the 20 other hand it's a two (2) page document. I could ask Mr. 21 Patrick in front of us all, Inspector Patrick, to read it, 22 it's two (2) pages. I think he should for the questions 23 I'm about to ask him. 24 COMMISSIONER SIDNEY LINDEN: I think he 25 should read it. It's just a couple of pages. It won't
131 take that long. 2 MR. JULIAN FALCONER: Just take your time, 3 sir. 4 COMMISSIONER SIDNEY LINDEN: Just take 5 your time and read it. 6 7 (BRIEF PAUSE) 8 9 THE WITNESS: Yes, sir. I've completed 10 reading it. 11 12 CONTINUED BY MR. JULIAN FALCONER: 13 Q: Thank you. Now at page 2 of this 14 document and -- and I take it from your evidence thus far, 15 that this document represents a minute of the meeting with 16 Connolly? 17 A: Yes, that's fair. 18 Q: And is the document to the best of 19 your knowledge accurate? 20 A: I would say so, yes. 21 Q: All right. And at page 2 there is 22 expressed reference to the meeting in the Premier's dining 23 room; is that correct? 24 A: Yes, sir. 25 Q: It -- I'm at what appears to be the --
141 the fourth paragraph, loosely. It starts with, "September 2 6th, 1995"; do you see that? 3 A: Yes. 4 Q: "September 6th, 1995, meeting outside 5 of Committee at Legislature where 6 Premier was. Our role was to be there 7 if needed. Premier, three (3) 8 ministers, three (3) deputies, EA's for 9 each. Ron and Scott and Barb were there 10 as requested (just before shooting 11 incident, about 17:00) in Premier's 12 office. Not recorded. Not known our 13 role was to provide support. 14 Premier expressed concern over approach. 15 An education-type meeting [I'm sorry] 16 educative-type meeting. Comment: Well, 17 I'll leave you to your discussions." 18 I wanted to ask you some questions about 19 this passage. 20 First off, when it says, "our role was to 21 be there if needed", what is that reference to? 22 23 (BRIEF PAUSE) 24 25 A: I -- I believe that would refer to, in
151 the normal course, Superintendent Fox and I would be there 2 to support the Deputy Minister, Elaine Todres, who we 3 reported to. 4 Q: Moving several lines down, it says: 5 "In Premier's office. Not reported. 6 Not known our role was to provide 7 support." 8 What does that refer to? 9 A: I believe that may indicate that we 10 weren't, as I -- as I understood it or as I recall at the 11 time, we didn't know the purpose of our attendance. We 12 were simply told to meet Deputy Minister Todres at Queen's 13 Park. 14 Q: So, it's fair to say that you didn't 15 have a formal role when you attended that meeting? 16 A: Yes. 17 Q: It's also fair to say that it wasn't 18 apparent to you when you were introduced at the meeting 19 and saw who was there, what your role was supposed to be? 20 A: That's correct. 21 Q: You were in completely unfamiliar 22 territory? 23 A: At the time, yes. 24 Q: All right. Now, it also says, "not 25 reported". What does "not reported mean"?
161 "In Premier's office, not reported." 2 A: I don't -- I don't know, sir. 3 Q: Could I suggest to you, that one 4 interpretation of not reported could be that the existence 5 and occurrence of the meeting was not the subject of a 6 report? 7 A: Possibly, yes. 8 Q: And in fact, it's fair to say that to 9 your knowledge, the dining room meeting was never the 10 subject of a formal report by anyone you knew? 11 MR. DERRY MILLAR: That's not correct. 12 That's not the evidence that we've heard from Coles -- 13 Chief Superintendent Coles, Chief Superintendent Fox, 14 Chief --Inspector Carson; that's just not correct. 15 MR. JULIAN FALCONER: My question was that 16 the meeting in the dining room was not the subject of a 17 formal report. 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MR. DERRY MILLAR: That assumes that 20 there's -- there's a requirement for a formal report as 21 well. That's -- there's a big assumption about -- 22 MR. JULIAN FALCONER: Well, Mr. -- 23 MR. DERRY MILLAR: -- in that -- 24 MR. JULIAN FALCONER: Mr. Millar is on a 25 multi-barrelled objection here.
171 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 2 MR. JULIAN FALCONER: First, my evidence 3 is wrong, now my assumption is wrong. Now, I -- my -- 4 MR. DERRY MILLAR: Well -- 5 MR. JULIAN FALCONER: Well, to be fair, 6 either there was a formal report or there wasn't, so my 7 evidence is wrong. And, of course, Mr. Millar, rethinking 8 it, realizes that my evidence isn't wrong; there was no 9 formal report. 10 COMMISSIONER SIDNEY LINDEN: Well, no -- 11 MR. JULIAN FALCONER: Now, whether there 12 was a formal report required, is a different issue and 13 I'm -- 14 COMMISSIONER SIDNEY LINDEN: Well, perhaps 15 you should find that out first. 16 MR. JULIAN FALCONER: Well, no, but -- but 17 to be fair, Mr. Commissioner, the objection ought to be 18 simply withdrawn, because Mr. Millar was wrong to have 19 said that the evidence suggested otherwise. 20 COMMISSIONER SIDNEY LINDEN: Well, I'm 21 not -- 22 MR. JULIAN FALCONER: No. 23 MR. DERRY MILLAR: The evidence -- I'm not 24 wrong. 25 COMMISSIONER SIDNEY LINDEN: No.
181 MR. DERRY MILLAR: I'm absolutely right -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. DERRY MILLAR: -- on the evidence. 4 COMMISSIONER SIDNEY LINDEN: Let's not 5 argue about that. Let's -- 6 MR. DERRY MILLAR: And this is a document, 7 Commissioner, that wasn't prepared by this man. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DERRY MILLAR: It was prepared by Mr. 10 Connolly -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. DERRY MILLAR: And this man's notes 13 are attached. 14 COMMISSIONER SIDNEY LINDEN: Yes, he -- 15 MR. JULIAN FALCONER: Again -- 16 COMMISSIONER SIDNEY LINDEN: -- never 17 created this document. 18 MR. JULIAN FALCONER: I didn't say he did. 19 COMMISSIONER SIDNEY LINDEN: No, I know 20 you didn't. 21 MR. JULIAN FALCONER: I simply want to 22 establish whether a formal report was done in respect of 23 the dining room meeting. 24 COMMISSIONER SIDNEY LINDEN: Well, he may 25 or may not know that.
191 MR. JULIAN FALCONER: And that's what I 2 asked him. 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 MR. JULIAN FALCONER: To your knowledge, 5 no formal report was ever done. 6 COMMISSIONER SIDNEY LINDEN: Well, again, 7 I'm not sure if a formal -- the word "formal report" what 8 that means or -- 9 MR. JULIAN FALCONER: That's fair, but 10 that's not the objection. 11 COMMISSIONER SIDNEY LINDEN: All right. 12 Ms. Tuck-Jackson...? 13 MS. ANDREA TUCK-JACKSON: Mr. 14 Commissioner, that was exactly going to be my objection 15 that, in fairness, My Friend should define what he means 16 by "formal report" because the evidence is extremely 17 clear, as My Friend Mr. Millar, has pointed out, that the 18 existence and indeed the content of the meeting was 19 conveyed to superior officers. 20 COMMISSIONER SIDNEY LINDEN: Yes. Well, 21 without going back and reading the evidence and getting 22 exactly what it was I assume that the evidence was as Mr. 23 Millar states it now. Now, you may have a different 24 recollection, but I'm assuming it's as Mr. Millar states 25 it.
201 MR. JULIAN FALCONER: I do have a 2 different recollection, not different from Ms. Tuck- 3 Jackson, different from Mr. Millar. 4 COMMISSIONER SIDNEY LINDEN: All right. 5 MR. JULIAN FALCONER: The point is there 6 was communication about the existence of the meeting. I 7 don't doubt that, I'm the one who cross-examined 8 Superintendent Fox at length about it. 9 COMMISSIONER SIDNEY LINDEN: All right. 10 MR. JULIAN FALCONER: But, there was no 11 formal report. In fact, prior to the tapes being released 12 and prior to the informal notes being found there was no 13 formal report outlining the existence of that dining room 14 meeting. 15 COMMISSIONER SIDNEY LINDEN: All right. 16 MR. JULIAN FALCONER: And I'm going 17 somewhere with this and the -- 18 COMMISSIONER SIDNEY LINDEN: Perhaps you 19 should explore that, what you mean by that -- 20 MR. JULIAN FALCONER: Fair enough. 21 COMMISSIONER SIDNEY LINDEN: -- before you 22 say there wasn't any. 23 MR. JULIAN FALCONER: Well -- 24 MR. DERRY MILLAR: Can I start -- this 25 says no report and My Friend can ask -- he's assuming
211 there's some requirement for a final report. 2 COMMISSIONER SIDNEY LINDEN: Yes, that's 3 what I mean. He should establish that. 4 MR. DERRY MILLAR: And Exhibit 447(a) and 5 447(b) have both the conversations of Fox to Carson and 6 Fox to Coles, his superior officer, reporting on what went 7 on both at the IMC -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DERRY MILLAR: -- and the Premier's 10 meeting. 11 COMMISSIONER SIDNEY LINDEN: And that may 12 be the method of reporting that's generally used. 13 MR. DERRY MILLAR: Sure. There's -- this 14 is assumption there's some formal report required. 15 COMMISSIONER SIDNEY LINDEN: Yes, that's 16 the essence of Ms. Tuck-Jackson's objection. 17 MR. JULIAN FALCONER: The question -- 18 well, I don't want to get argumentative, Mr. Commissioner, 19 in the sense that we can back and forth and -- and almost 20 get nowhere. 21 The question did not say critically you 22 didn't do a formal report, you ought to have done. I 23 said, "to your knowledge none was done?", a formal report. 24 Now, if I need to define, 'formal report', that's fair, 25 but to say that I'm not allowed to ask that question
221 before -- 2 COMMISSIONER SIDNEY LINDEN: No. 3 MR. JULIAN FALCONER: -- first 4 establishing one is required, with respect, is -- is 5 frankly -- 6 COMMISSIONER SIDNEY LINDEN: Well, when 7 you ask if it's been reported on formally -- 8 MR. JULIAN FALCONER: Yes. 9 COMMISSIONER SIDNEY LINDEN: -- we have to 10 understand what that means. 11 MR. JULIAN FALCONER: And that's fair. 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. JULIAN FALCONER: That's a far stretch 14 from what Mr. Millar initially objected to because those 15 tapes do not represents a formal report, far from it. 16 Julie Jai's notes don't represent a formal 17 report, far from it. 18 COMMISSIONER SIDNEY LINDEN: That's 19 subject again for argument. 20 MR. JULIAN FALCONER: All right. 21 COMMISSIONER SIDNEY LINDEN: You'll make 22 that argument in due course. 23 MR. JULIAN FALCONER: Fair enough. But 24 that's where I was going and -- and to be fair I still to 25 this day --- you -- you've seen the -- I'll -- I'll
231 establish some more foundation, it might be more helpful 2 and I don't want to spend too much time in the area 3 because I don't want overstate its importance. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: Inspector Patrick, you have seen 7 formal reports produced by the OPP, yes? 8 A: Yes, sir. 9 Q: You've seen, for example, Officer 10 Connolly's report? 11 A: I don't know that I've seen the entire 12 report, sir. 13 Q: All right. You've seen -- have you 14 seen the report with appendixes by Chief Coles, his formal 15 report? 16 A: No, sir. 17 Q: All right. Have you seen OPP formal 18 reports in your career? 19 A: Yes. 20 Q: And are they generally in writing? 21 A: Yes. 22 Q: All right. Now, do you know of a 23 formal report in writing outlining what occurred in the 24 Premier's dining room? 25 A: No, sir.
241 Q: This was a significant meeting wasn't 2 it? 3 A: It was. 4 Q: To this day have you been told or has 5 it come to your attention as to why no formal report in 6 respect to the contents of the meeting in the Premier's 7 dining room was ever provided? 8 A: No. 9 10 (BRIEF PAUSE) 11 12 Q: In the note at page 2 where it states, 13 "Premier expressed concern over approach," it's fair to 14 say that that reference on the Premier's expression of 15 concern is -- 16 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 17 Downard...? 18 MR. PETER DOWNARD: Before My Friend goes 19 onto another subject I still haven't heard the answer to 20 the question which I thought you wanted, sir, which was: 21 Is there a requirement for a formal report? 22 We're still exactly where we were at the 23 beginning. 24 COMMISSIONER SIDNEY LINDEN: Yeah, well... 25 MR. JULIAN FALCONER: Mr. Downard is
251 asking me to ask other questions. I laid the foundation, 2 did my job, and I -- 3 COMMISSIONER SIDNEY LINDEN: I -- I... 4 MR. PETER DOWNARD: Well, the precise 5 objection is when asked and questioned very carefully so 6 that one can -- one -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. PETER DOWNARD: -- can take the answer 9 and use it to argue something that there's no evidence 10 for. 11 COMMISSIONER SIDNEY LINDEN: Well... 12 MR. PETER DOWNARD: And so that's -- 13 that's the technique that's in play here. 14 COMMISSIONER SIDNEY LINDEN: There's -- 15 MR. PETER DOWNARD: It's quite clear. 16 COMMISSIONER SIDNEY LINDEN: There's no -- 17 MR. JULIAN FALCONER: Well, that's the -- 18 this is only the fifth or sixth time that my techniques 19 and my tactics -- I'm not sure it's necessary -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. JULIAN FALCONER: -- to personalize 22 the matter. I -- 23 COMMISSIONER SIDNEY LINDEN: It's not 24 being personalized, it's just a question that you're 25 asking that's being challenged and the way you're asking
261 him. It's not personal at all. 2 I'm not sure what you've established. 3 There have been some formal reports and the meeting that 4 occurred in the dining room that haven't been a part of 5 those formal reports. That's about all you've 6 established. 7 MR. JULIAN FALCONER: That's right. 8 COMMISSIONER SIDNEY LINDEN: Yes. So I 9 don't think you need to do more than that to establish -- 10 MR. JULIAN FALCONER: Well, neither do I. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 Carry on. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: The reference at page 2: 16 "The Premier expressed concern over 17 approach." 18 That reference, "Premier expressed concern 19 over approach.", that expression of concern was what you 20 termed yesterday at the end of the day, somewhat of an 21 extension of the Premier's concerns you'd heard about in 22 the morning, correct? 23 A: Yes, sir. 24 Q: You used the word 'extension' 25 yesterday; do you remember?
271 A: Yes, I did. 2 Q: And again, this goes back to what you 3 described as the Premier being, your first said perplexed 4 and then you also said frustrated at the pace that was 5 being used to deal with the Natives, correct? 6 A: Yes, sir. 7 Q: And the approach was an approach that 8 was the subject of commentary by Mr. Taman who talked 9 about historically how the OPP handles matters, correct? 10 A: He did, yes. 11 Q: And that approach, the OPP approach, 12 was what the Premier expressed concerns about as referred 13 to in page 2, correct? 14 A: I believe it spoke more to the 15 timeframe in which the OPP would proceed. I believe that 16 was his concern. 17 Q: And so the Premier was expressing 18 concern over the timeframe of the OPP approach, correct? 19 A: Yes, sir. 20 Q: And if you leave that page open but 21 flip to your notes at page -- the fourth page of your 22 notes from the IMC meeting of September 6th. 23 Do you have the 4th page? 24 The fourth page starts, I think, with 25 "considerations" as the top word.
281 A: Yes, I do, sir. 2 Q: All right. It has 'Ron' underneath. 3 That's Fox? 4 A: Yes. 5 Q: And then it lists four (4) points. 6 And the fourth point is the words, "Appreciate Premier's 7 concern but should we rush in?" 8 What was Inspector Fox saying? He was 9 Inspector Fox at the time, correct? 10 A: He was, yes. 11 Q: Yeah. 12 A: I believe it was a rhetorical question 13 and he was simply stating that he understood as 14 communicated by Ms. Hutton some anxiousness around 15 resolving the occupation and -- and resolving it quickly. 16 But he is then advocating a step-by-step 17 approach, a measured response to the incident. 18 Q: And in terms of the words, "The 19 Premier's concern", in fact that appreciation that 20 Inspector Fox had for the Premier's concern, that's the 21 same concern that you and Mr. Fox indicate to Connolly was 22 made in the dining room at page 2, "Premier expressed 23 concern over approach." 24 Same concern, correct? 25 A: I believe so, yes.
291 Q: Over the course of the day the same 2 theme comes back to you that the Premier personally has a 3 concern with the timeframe of the OPP approach, correct? 4 A: Yes. 5 Q: In your notes, I had already asked you 6 about that reference at the bottom of page 3 where Ms. 7 Hutton talks about the Criminal Code but I just want to 8 establish something. 9 Your -- these notes are chronological are 10 they not? 11 A: Yes, sir. 12 Q: So, that the caution provided by Ms. 13 Hunt at the top, it appears at the top of page 3, correct? 14 A: Yes, it does. 15 Q: So, Ms. Hunt gives this caution and 16 then nevertheless subsequently Ms. Hutton makes the 17 comment she does about the Criminal Code approach, 18 correct? 19 A: Yes. 20 Q: This timeframe concern amounted to 21 this, I'm going to suggest to you, you can agree with me 22 or disagree with me. 23 This timeframe concern amounted to this, 24 the longer the occupiers stay there, the more difficult it 25 will be to get them out.
301 A: That was a view that was expressed, 2 yes. 3 Q: And you've already said the OPP 4 approach was seen as too slow, yes? 5 A: Yes. 6 Q: And in the context of those exchanges, 7 it was repeated time and again that it was to be made 8 clear that there was to be no negotiation, correct? 9 A: Yes, sir. 10 Q: It was also made clear that the 11 Government's position, that is Premier Harris' position, 12 was that this was not a native rights issue, but this was 13 a law and order issue, correct? 14 A: Yes, sir. 15 Q: It was made clear to you in the 16 meeting of -- the morning of September 6th and subsequent, 17 that the Government was intent on addressing the local 18 non-Aboriginal population concerns; they were intent on 19 addressing those concerns? 20 A: There was discussion in that regard, 21 yes. 22 Q: It was made clear to you that the 23 Government was not reluctant to be seen as moving 24 decisively and quickly, correct? 25 A: Correct. Ms. Hutton indicated that
311 they wanted to be seen as actioning. 2 Q: They wanted to be seen as being 3 decisive, correct? 4 A: Yes, sir. 5 Q: They did not want to be seen, and this 6 was made clear to you at the meeting on the morning of 7 September 6th, I'm suggesting to you, they did not want to 8 be seen as indulgencing native rights discussions, 9 correct? 10 MR. DERRY MILLAR: Well, he can't -- he 11 can only answer what was said and what was -- 12 MR. JULIAN FALCONER: I can reframe it, 13 but -- 14 COMMISSIONER SIDNEY LINDEN: Well -- 15 MR. DERRY MILLAR: He can't -- 16 MR. JULIAN FALCONER: -- I thought I came 17 pretty close to -- 18 MR. DERRY MILLAR: He can't put in -- 19 COMMISSIONER SIDNEY LINDEN: Yes, they 20 just -- he said they wanted to be seen as actioning. You 21 used that -- 22 MR. JULIAN FALCONER: That's right. 23 COMMISSIONER SIDNEY LINDEN: -- word. 24 MR. JULIAN FALCONER: He also -- he also 25 made -- has given other evidence. I'm asking for the
321 message that he received. So, it was the message that was 2 conveyed to you, and I'll simply put it that way. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 5 CONTINUED BY MR. JULIAN FALCONER: 6 Q: The message that was conveyed to you 7 among others, is that the Government did not want to be 8 seen as indulging native rights discussions? 9 COMMISSIONER SIDNEY LINDEN: I see Mr. 10 Downard is objecting. 11 MR. PETER DOWNARD: Just for -- for 12 clarity, because there can be mischief between what's 13 actually said and what somebody wants to interpret 14 something as meaning. 15 And if My -- My Friend could be clear is -- 16 is he asking about something that was said to him, or is 17 he asking for the witness' gloss in retrospect on what he 18 was being told at the time or an interpretation? 19 COMMISSIONER SIDNEY LINDEN: Yes, I think 20 that seems to be the basis of a fair number of objections 21 to the manner of your questions. So, if you could be a 22 little more precise, I think you would succeed in asking 23 the questions that you want to ask. 24 25 CONTINUED BY MR. JULIAN FALCONER:
331 Q: From the words spoken and the position 2 advocated, in particular by the voice of Premier, Ms. 3 Hutton, the message that you interpreted, I suggest to you 4 among things, was that the Government did not wish to be 5 seen as indulging in native rights discussions with the 6 occupiers. 7 A: That was clear a number of times that 8 they did not -- there was a concern, I sensed a concern 9 that the OPP might enter into discussions in a more 10 substantive way. I believe the concern was misplaced, but 11 it came up on several occasions during the meeting. 12 Q: There was to not be a form of 13 appeasement or pandering to the occupiers; it was to be 14 made clear to them that they were there illegally and 15 that -- 16 MR. DERRY MILLAR: That's really -- that's 17 really an argument -- 18 COMMISSIONER SIDNEY LINDEN: That -- 19 MR. JULIAN FALCONER: Well, I'm not, I'm 20 making a -- 21 MR. DERRY MILLAR: No, he's -- he's 22 arguing -- 23 MR. JULIAN FALCONER: I didn't even finish 24 the question, Mr. Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Well, it's
341 the way you put the question. 2 MR. DERRY MILLAR: Appeasement and -- 3 COMMISSIONER SIDNEY LINDEN: Those -- 4 MR. DERRY MILLAR: -- pandering are -- is 5 -- that's an argumentative question. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. DERRY MILLAR: He can ask the Witness 8 factual questions. If he -- he can make the argument at 9 the appropriate time. 10 COMMISSIONER SIDNEY LINDEN: Those words, 11 'appeasement' and 'pandering' are not words that the 12 Witness has used. 13 MR. JULIAN FALCONER: I've prefaced my 14 question that this is a suggestion, because I wanted to be 15 clear to the Witness I was making a suggestion to him, 16 that he's free to agree with or disagree with. 17 COMMISSIONER SIDNEY LINDEN: Yes, if 18 that's what you're doing, I don't think there'll be an 19 objection, but -- 20 MR. JULIAN FALCONER: But, I did say that 21 in the start of my question. 22 COMMISSIONER SIDNEY LINDEN: Well, I'm not 23 going to go back and -- 24 MR. JULIAN FALCONER: All right. 25 COMMISSIONER SIDNEY LINDEN: -- read it
351 back, but if that's what you're saying -- 2 MR. JULIAN FALCONER: That's right. 3 COMMISSIONER SIDNEY LINDEN: -- I don't 4 think that's objectionable. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: I'm making a suggestion to you that 8 you can agree with or disagree with, sir, all right? 9 A: Yes. 10 11 (BRIEF PAUSE) 12 13 Q: I'm suggesting to you that the message 14 that you were receiving among other things the morning of 15 September 6th and later that day by extension, the message 16 was that the Government did not want to be seen to be 17 pandering or appeasing to native concerns in how they 18 handled the occupiers at Ipperwash? 19 A: It was seen and I believe it's 20 reflected in minutes and notes that it was to be treated 21 as a law enforcement issue, as a policing matter as 22 opposed to a native issue, yes. 23 Q: And you would -- 24 COMMISSIONER SIDNEY LINDEN: If you're not 25 comfortable with the words that Counsel is putting to you
361 you're entitled to answer as you just did using your own 2 words. 3 THE WITNESS: Thank you, Your Honour. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 6 CONTINUED BY MR. JULIAN FALCONER: 7 Q: Would you agree with me that the term 8 appeasement if one tried to or sought to appease the 9 native concerns prior to them leaving the Park would have 10 been inconsistent with the direction the Government said 11 they wanted to go? 12 A: Possibly. 13 Q: All right. And the term appeasement, 14 among other things involves a frank acknowledgement of the 15 occupiers' issues doesn't it? 16 A: It could, yes. 17 Q: And it was made clear that the 18 Government did not want that done while they were in the 19 Park, correct? 20 A: Yes. 21 Q: Now, you provided your best memory of 22 the Premier's statements in the dining room on the 23 afternoon of September 6th, 1995, and I am particularly 24 interested in your hearing the word 'holocaust' in this 25 portion of my questions.
371 You testified you heard that word? 2 A: Yes. 3 Q: Now, Mr. Downard brought out from you 4 that you thought that what you got from reviewing the Fox 5 transcript, that's of his evidence before the Commissioner 6 and understood you also reviewed some kind of video? 7 A: I'm not sure if I understand that 8 video. 9 Q: Of Fox? I understood you reviewed both 10 the transcript of the Fox evidence and -- 11 A: A combination of transcript. I -- I 12 observed some of Superintendent Fox's testimony here. 13 Q: On the live webcast? 14 A: On both the live webcast and in 15 person, this past summer. 16 Q: All right. And he also used the 17 word, 'holocaust', that he remembered that word being 18 used? 19 A: Yes, sir. 20 Q: But that wasn't something that only 21 came to you after you heard Fox's evidence? 22 A: No. 23 Q: Now, just on that note -- vein for 24 just one (1) second and we'll go back to the holocaust 25 word.
381 It's also fair to say that on reflection 2 when you look at the May 1997 minutes of the meeting at 3 page 2 where it says, "Premier expressed concern over 4 approach," that that actually reflects in May 1997 a 5 recollection of the Premier's expression of concern, 6 correct? 7 A: Yes. 8 Q: So, in fact it's -- it's probably not 9 entirely accurate to say that the first time you recalled 10 it was as indicated to Mr. Downard after you looked at the 11 Fox transcript. In fact it came up in May '97? 12 A: I don't believe that I indicated to 13 Inspector Connolly the term 'holocaust', but -- 14 Q: Right. 15 A: -- I've recalled that term since it 16 was spoken. 17 Q: All right. I'm confusing you and 18 it's my fault. I'm moving between two (2) areas, but the 19 bottomline is certainly in May '97 you remembered the 20 Premier expressing a concern over the time frame as it 21 related to the OPP approach? 22 A: Yes, sir. 23 Q: And that was in May '97? 24 A: Yes. 25 Q: Not after you heard the Fox evidence
391 in this case? 2 A: Yes, I understand now. 3 Q: Now -- now, when it comes to the word, 4 'holocaust', that was something you say that you 5 remembered all along? 6 A: Yes. 7 Q: All right. And the words that 8 proceeded the word 'holocaust' had something to do with 9 the government being concerned, specifically Premier 10 Harris being concerned, that the longer they stay the 11 harder it will be to get them out? 12 A: I recall his words were that This is a 13 test, We're a new government. And that he spoke some more 14 and said This is how these things start, and then he 15 referenced the holocaust. 16 Q: The word 'holocaust', I'm -- I'm 17 probing your memory because you're somewhat vague on tying 18 it into what he said and that's why I'm asking you. I'm 19 suggesting things to you. 20 A: Yes. 21 Q: You're free to agree or disagree with 22 my -- 23 A: Yes. 24 Q: -- probing of your memory. 25 A: And I -- I couldn't -- it was -- I
401 couldn't hear all of it. 2 Q: All right. 3 A: I did not hear the entire -- 4 Q: The word 'holocaust' came within a 5 sentence or two (2) about the Government being seen to 6 take decisive quick action. 7 A: It was in the -- it was in that 8 timeframe, yes. 9 Q: In the same set of thoughts that you 10 heard about the longer they stay, the more difficult it 11 is. 12 A: I don't know that I have a specific 13 recollection of the Premier stating that. I recall Ms. 14 Hutton stating that earlier in the day. 15 Q: Do you recall whether the Premier used 16 the word 'appeasement' right before the word 'holocaust'? 17 A: No. 18 Q: Again, this is a suggestion and I'm 19 probing your memory. While it would no doubt be startling 20 that the Premier did this, are you familiar with the fact 21 that a common criticism of western powers in 1938 was that 22 they failed to act quickly and decisively when it came to 23 stopping Hitler's Nazi regime? 24 Are you familiar with that criticism? 25 COMMISSIONER SIDNEY LINDEN: I don't think
411 that's a question that this Witness should be asked. 2 MR. JULIAN FALCONER: Well, Mr. 3 Commissioner, may I address you on that? 4 COMMISSIONER SIDNEY LINDEN: You can 5 address me, certainly. 6 MR. JULIAN FALCONER: I don't feel 7 particularly confident about my success on it, frankly. 8 But I -- I want to address you in any event if I may 9 briefly. 10 Mr. Commissioner, the word 'holocaust' has 11 come out by two (2) witnesses in this proceeding. 12 COMMISSIONER SIDNEY LINDEN: But, we have 13 no recollection of its context other than a very slight 14 indirect reference to it. 15 MR. JULIAN FALCONER: I understand that 16 if -- 17 COMMISSIONER SIDNEY LINDEN: I don't want 18 to go into this in any great detail because of that. He 19 doesn't have any great recollection of it. 20 MR. JULIAN FALCONER: But, with respect 21 without meaning to try the patience of -- of the 22 Commissioner, counsel's entitled to probe a memory of a 23 person who is having difficulty recalling. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN FALCONER: And I preface --
421 COMMISSIONER SIDNEY LINDEN: You were 2 doing that. 3 MR. JULIAN FALCONER: That's right. And 4 I've prefaced my question with, this is an effort to probe 5 your memory. I've brought out -- I'm sorry? 6 COMMISSIONER SIDNEY LINDEN: I'm sorry, 7 that's just a little too far fetched. 8 MR. JULIAN FALCONER: No, but I'm -- I 9 haven't finished my -- 10 COMMISSIONER SIDNEY LINDEN: Yes, I know. 11 Carry on. 12 MR. JULIAN FALCONER: Thank you. I 13 brought out that there was a fear that the Government 14 would be seen to be pandering. You've heard that evidence 15 from Fox as well. I've brought our that potentially, 16 though different words were used, there was a concern that 17 they not be seen to be appeasing. 18 The -- then the fact that within a sentence 19 or two (2) of the Government being seen to be decisive, 20 Premier Harris used the word 'holocaust' could lead to an 21 inference that I'm trying to explore with this Witness, 22 which is: Was Premier Harris comparing the occupiers to 23 the Nazi regime and the criticism of the governments in 24 1938, the western powers, that they pursued a policy of 25 appeasement that led to the horrible disaster of the
431 Second World War. 2 And I'm entitled to explore it because two 3 (2) witnesses have testified -- two (2) now, about the 4 usage of the word 'holocaust' right around the Premier's 5 usage of the word -- government acting quickly. 6 And -- and with respect leaving it as 7 simply a question a non-sequitur he used the word 8 'holocaust' but we're not going to ask anymore questions 9 about it, it would be easier for us all, I -- I 10 acknowledge that, Mr. Commissioner, it would be easier. 11 This is very awkward -- 12 COMMISSIONER SIDNEY LINDEN: But he 13 doesn't -- 14 MR. JULIAN FALCONER: -- personally and 15 professionally for me to ask these questions. But, with 16 respect, if I don't ask these questions then what I'm 17 doing is because it's awkward I'm walking away from it. 18 And with respect a word like 'holocaust' 19 two (2) witnesses have testified to it now, needs to be 20 explored at least to find out what Premier Harris might 21 have been saying without asking the Witness to speculate. 22 If he says he doesn't remember what I'm talking about then 23 fair enough. 24 COMMISSIONER SIDNEY LINDEN: Well, he has 25 said that so far. He has said that.
441 MR. JULIAN FALCONER: But, I didn't get 2 the question out. 3 MR. DERRY MILLAR: You know, it's not that 4 Mr. Falconer is the only person who asked about this. We 5 went through this all in-chief to try to extract from this 6 Witness what he remembered. 7 And he didn't remember much, unfortunately, 8 about it. And the -- he can ask him questions and the man 9 -- the Witness has told us what he remembers. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DERRY MILLAR: And -- 12 COMMISSIONER SIDNEY LINDEN: That's why 13 I'm not anxious to have you proceed. The Witness has 14 already told us he doesn't remember this. 15 MR. JULIAN FALCONER: I hear -- I hear 16 you, Mr. Commissioner -- 17 COMMISSIONER SIDNEY LINDEN: Yes, that's 18 fine. 19 MR. JULIAN FALCONER: -- and I don't want 20 to be seen as arguing with you. I simply close my 21 submission with this that I want to be able to be free to 22 put to Premier Harris the connection that I am seeking to 23 establish with the Witness who heard his words. 24 Now he heard fragmented words and that's 25 why I thought it only fair to run it by this Witness. But
451 what I don't want to hear from Mr. Downard later is that's 2 not fair, I didn't raise it. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 If Mr. Harris will -- recalls using the word, I think 5 you'd be entitled to ask him. 6 MR. JULIAN FALCONER: And if he doesn't 7 recall using the word, I'm still going to ask about it 8 because two (2) witnesses have said he did. 9 COMMISSIONER SIDNEY LINDEN: Well, we'll 10 see what happens when Mr. Harris comes. 11 MR. PETER DOWNARD: Mr. Falconer can put 12 to Mr. Harris whatever he wants to on -- on this subject 13 in terms of did you say this, did you say that, did you 14 make this connection, did you not. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 Then you're free to do that then, Mr. Falconer. You're 17 not free to do, but you may do that. We'll see how it 18 goes. 19 MR. JULIAN FALCONER: I have a second 20 question that's not identical to the first, but I'm going 21 to seek to ask it, and I'm going to ask the Witness not to 22 answer until you've ruled on whether I must move on, Mr. 23 Commissioner. 24 I want to ask the Witness question: Do you 25 recall if Premier Harris was equating the action his
461 government ought to take with the occupiers with the 2 decisive action the western powers should have taken with 3 Nazi Germany. 4 COMMISSIONER SIDNEY LINDEN: I don't think 5 that's a good question, Mr. Falconer. 6 MR. JULIAN FALCONER: And then I wanted to 7 ask the Witness, does that refresh your memory on the word 8 'Holocaust' in the context it was used? 9 COMMISSIONER SIDNEY LINDEN: Well, I think 10 you should move on from that. 11 MR. JULIAN FALCONER: Thank you. 12 COMMISSIONER SIDNEY LINDEN: The Witness 13 has already told us that he doesn't recall anything more 14 than he's already told us. And you've tried to probe his 15 memory enough in my view. 16 MR. JULIAN FALCONER: Thank you, Mr. 17 Commissioner. 18 19 (BRIEF PAUSE) 20 21 MR. JULIAN FALCONER: I'm just tracking 22 down a document, Mr. Commissioner, I apologise. 23 24 (BRIEF PAUSE) 25
471 MR. JULIAN FALCONER: Could I ask that 2 this document that I'm handing up to Mr. Commissioner and 3 to My Friend, Ms. Tuck-Jackson and to the Commission and 4 the Witness, Document Number 2000526. It's the memo dated 5 March 5th, 1996 from Yan Lazor to Tim McCabe. 6 7 (BRIEF PAUSE) 8 9 MR. JULIAN FALCONER: Two (2) copies, 10 Commissioner, and the Witness. 11 COMMISSIONER SIDNEY LINDEN: I have a copy 12 of it. 13 MR. JULIAN FALCONER: As I understand it, 14 Mr. Commissioner, and I simply for confirmation on the 15 record, as I understand, the Attorney General having 16 claimed privilege and objected to questioning about this 17 document to its author after the author left the stand, 18 the Attorney General's now waived privilege over the 19 document. 20 COMMISSIONER SIDNEY LINDEN: Yes, I think 21 that's correct. 22 MR. WALTER MYRKA: I can confirm that, Mr. 23 Commissioner. The only point I make is that Mr. Falconer 24 referred it, I think, as a memo from Yan Lazor to Tim 25 McCabe and I think it's the other way around.
481 MR. JULIAN FALCONER: My apologies, I 2 meant a memo from Mr. McCabe. My apologies. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: Could you take a moment to review this 6 document, Mr. Patrick or Inspector Patrick? 7 MR. DERRY MILLAR: Well, we might -- this 8 isn't -- we don't know if this document -- this witness 9 has ever seen this document. 10 COMMISSIONER SIDNEY LINDEN: No. 11 MR. DERRY MILLAR: It's not his document 12 and he's -- 13 COMMISSIONER SIDNEY LINDEN: No. 14 MR. DERRY MILLAR: -- you know, he's going 15 to cross-examine on a memo that we don't even know if this 16 witness ever saw this document. 17 MR. JULIAN FALCONER: Well, I just 18 received an objection to -- can you take a moment to look 19 at this document which would be the standard question a 20 professional lawyer asking a witness as to whether he's 21 seen the document before would ask him. 22 Is Mr. Millar now objecting to my affording 23 the witness a chance to see a document before I ask him a 24 question? 25 COMMISSIONER SIDNEY LINDEN: No, certainly
491 that's not the objection. 2 MR. JULIAN FALCONER: Well, I propose -- I 3 shouldn't -- 4 COMMISSIONER SIDNEY LINDEN: The 5 document -- 6 MR. JULIAN FALCONER: -- be hampered this 7 way. 8 COMMISSIONER SIDNEY LINDEN: The document 9 may have very limited value. It was -- it's obviously 10 useful in the context of Mr. McCabe's evidence. I'm not 11 sure how we're going to deal with that, but I'm not sure 12 how this witness -- 13 MR. JULIAN FALCONER: Me neither, because 14 that was the point of my foundational questions, which I 15 should, with respect, not be the subject of criticism or 16 objection before -- 17 COMMISSIONER SIDNEY LINDEN: Yes -- 18 MR. JULIAN FALCONER: -- I even -- before 19 I even ask the question. 20 COMMISSIONER SIDNEY LINDEN: You're being 21 a bit too sensitive -- 22 MR. JULIAN FALCONER: Sorry, Mr. 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: -- Mr. 25 Falconer. It's not criticism. Counsel have a right to
501 object just as you have a right to ask questions. 2 MR. JULIAN FALCONER: But, what's the 3 objection, that's my point. 4 COMMISSIONER SIDNEY LINDEN: Well, I -- 5 the objection is -- 6 MR. JULIAN FALCONER: I guess that's why 7 I'm frustrated. What's the objection? I said -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN FALCONER: -- could you look at 10 the document? 11 COMMISSIONER SIDNEY LINDEN: Yeah, well, 12 it may be obvious that this has no significance for this 13 Witness. It may be completely obvious to everybody, but 14 you've asked him if he's ever seen this before, is that 15 right? 16 MR. JULIAN FALCONER: That's right. 17 That's -- 18 COMMISSIONER SIDNEY LINDEN: Okay. Then 19 let's -- 20 MR. JULIAN FALCONER: I just want to know 21 if he's seen the document. Could you take -- 22 MR. DERRY MILLAR: You didn't ask him -- 23 MR. JULIAN FALCONER: I said could you 24 take a look at the document. 25 COMMISSIONER SIDNEY LINDEN: Let's hear if
511 he's ever seen it before. 2 MR. JULIAN FALCONER: Thank you. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: Inspector Patrick, have you had an 6 opportunity to look at the document? 7 A: I have, sir, yes. 8 Q: All right. Have you seen it before? 9 A: Last evening for the first time. 10 Q: All right. And that's because it was 11 provided to you as part of the document notices, correct? 12 A: Yes, sir. 13 Q: All right. Now, in March 1996 what 14 was your formal position in respect of the Ontario 15 government? 16 A: I was still seconded to the Deputy 17 Minister's office and reporting to Superintendent Fox. 18 Q: All right. And it's fair to say that 19 you were actively involved in First Nations liaison 20 between the Solicitor General's Office and the OPP, 21 correct? 22 A: Yes. 23 Q: Now, this document has a number of 24 different references to the OPP and that's where I'm going 25 in my questioning, Mr. Commissioner, because there are
521 references in this document to the role and actions of the 2 OPP at the material time while this gentleman was in the 3 office he was in. 4 And that's why I'm ask -- I want to go in 5 certain directions. But I suggest it's purely a question 6 of -- 7 COMMISSIONER SIDNEY LINDEN: It's -- 8 MR. JULIAN FALCONER: -- question by 9 question rather than simply barring the document. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 The document exists and you're entitled to ask questions 12 and we'll see where they go. 13 14 CONTINUED BY MR. JULIAN FALCONER: 15 Q: At page 5 of the memo of March 5th, 16 1996, paragraph 3 is the top of the page, it states: 17 "The cooperation of the OPP in the 18 endeavour will have to be enlisted and 19 there will need to be direction by the 20 Commissioner or his delegate to the OPP 21 on this point. 22 When the matter arose last September the 23 position of the OPP on the injunction 24 issue was understandably and quiet 25 properly left to the field staff. That
531 staff was first of the view that an 2 injunction should be sought later in 3 response to changed circumstances and 4 after some internal bate -- debate -- 5 opposed the continuation of the 6 injunction proceedings. 7 Even though the OPP is not now in the 8 forefront of the matter in support of 9 any new injunction proceedings [I'm 10 sorry.] Even though the OPP is not now 11 in the forefront of the matter it's 12 support of any new injunction 13 proceedings would be essential." 14 Stopping there, Inspector Patrick, were you 15 party to the discussions either indirectly or in your 16 capacity of support to Inspector Fox, were you party to 17 the discussions about the merits of pursing an injunction 18 following September 6th and 7th, 1995 when Dudley George 19 was shot? 20 A: Not that I recall, sir. 21 Q: All right. And does the existence of 22 this memo refresh your memory in any way as to the so- 23 called quote/unquote, "internal debate" surrounding the 24 injunction? 25 A: No.
541 Q: At page 3 of the memorandum, the 2 bottom paragraph under the title, The Prerequisites of a 3 Motion for an Interlocutory Injunction, the issues to be 4 resolved are: 1. -- do you see that? 5 A: Yes, sir. Yes, sir. 6 Q: "1. The Government will have to 7 decide whether it is willing to risk 8 providing by means of injunction 9 proceedings a judicial forum for review 10 of the police operations of last 11 September and the death that occurred on 12 the evening of September 6th." 13 Inspector Patrick, were you party to any 14 discussions about a concern about judicial review of the 15 police operations of September 1995? 16 A: No, not that I recall, sir. 17 Q: Do you recall any specific concerns 18 being expressed either by government officials or the 19 police that a judge would be looking at the police 20 operation, the decision to use the Crowd Management Unit 21 and the deployment of lethal force that night? 22 Do you recall any discussions along those 23 lines? 24 A: No, sir. 25 MR. JULIAN FALCONER: Mr. Commissioner,
551 I'm unfamiliar with whether this document was made an 2 exhibit. 3 COMMISSIONER SIDNEY LINDEN: I don't 4 remember either. 5 MR. DERRY MILLAR: It was not. 6 MR. JULIAN FALCONER: My proposal is not 7 because of the Witness' answers, to be honest -- 8 COMMISSIONER SIDNEY LINDEN: No. 9 MR. JULIAN FALCONER: -- my proposal is 10 that by virtue of the change in position of the Attorney 11 General, that the document be made an exhibit at this 12 stage. Obviously counsel who were questioning Mr. McCabe 13 and others on this issue have their own positions to 14 advance. I wasn't there. 15 But, at this stage, in my respectful 16 submission, the document ought to be made an exhibit. 17 This witness was questioned on it. The only reason it 18 wasn't an exhibit when it ought to have been, was the 19 claim of privilege, it's now been withdrawn. 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Millar. 22 MR. DERRY MILLAR: Well, I have no 23 difficulty making it and having it marked as an exhibit. 24 I'm -- I'm not certain I agree with everything that My 25 Friend said. Just because he --
561 COMMISSIONER SIDNEY LINDEN: Well, we 2 don't have to agree with everything. We're just making an 3 exhibit. 4 MR. DERRY MILLAR: -- he showed it to him 5 that's not necessarily why it should be marked an exhibit. 6 But I have no objection to it being marked. 7 COMMISSIONER SIDNEY LINDEN: Well, then 8 let's mark it an exhibit. What number is it? 9 THE REGISTRAR: P-763, Your Honour. 10 COMMISSIONER SIDNEY LINDEN: 763. 11 12 --- EXHIBIT NO. P-763: Document number 2000526. 13 Memorandum to Yan Lazor from 14 Tim McCabe re: Ipperwash 15 Provincial Park occupation. 16 17 COMMISSIONER SIDNEY LINDEN: I know we've 18 taken some time with objections so, Mr. Falconer, but 19 we're close to your time estimate. We've taken some time 20 with objections. 21 MR. JULIAN FALCONER: I'm asking for 22 approximately fifteen (15) minutes and I'll be finished. 23 Thank you. 24 25 CONTINUED BY MR. JULIAN FALCONER:
571 Q: At Tab -- I'm sorry... 2 3 (BRIEF PAUSE) 4 5 At Tab 10 of Commission Counsel documents. 6 This is what I understand to be notes of Julie Jai which 7 are Exhibit P-516 and Document Number 1012542. And 8 they're purportedly handwritten notes of a conversation 9 with Ron Fox following the shooting of Dudley George. 10 Have you seen these notes before? 11 A: Yes, sir. 12 Q: All right. First of all, were you 13 party of the conversation? 14 A: No, sir. 15 Q: All right. On the second page it has 16 "Ron Fox 6:20 a.m., Thursday, September 1995"; do you see 17 that? 18 A: Yes, sir. 19 Q: It says in the -- if you -- if you 20 basically go down nine (9) lines it says: 21 "Deb Hutton doesn't think much of the 22 I/M group." 23 Do you see that? 24 A: Yes, sir. 25 Q: First of all, are you able to assist
581 me based on your communications with Ron Fox and/or Julie 2 Jai that really primarily Inspector Fox at the time, what 3 that term meant to you if anything? 4 MR. DERRY MILLAR: Well, how can -- 5 basically he's asking him to interpret not his -- he 6 wasn't part of this conversation. He -- we've provided -- 7 this is a note of Julie Jai of a conversation with Ron 8 Fox. 9 COMMISSIONER SIDNEY LINDEN: That he 10 wasn't -- 11 MR. DERRY MILLAR: Now he's asking him to 12 interpret what Julie Jai wrote as a result of her 13 conversation with Ron Fox. Now, Commissioner, I -- this 14 Witness can't answer that question. 15 MR. JULIAN FALCONER: My question was 16 based on your communications with Ron Fox at the time 17 and/or conversations with Julie Jai, does this reference 18 mean anything to you? 19 Now, either the Witness could say, It means 20 nothing to me, didn't hear it, or he could say, The same 21 sentiment was expressed to me by Mr. Fox when we talked 22 the same day. The question's perfectly proper with 23 respect because I prefaced it based on your communications 24 with Fox at the time and/or Julie Jai. 25 COMMISSIONER SIDNEY LINDEN: You don't
591 need this note to ask the question. That's really what 2 we're about -- 3 MR. JULIAN FALCONER: Well, with respect, 4 the Commission Counsel included to note in Commission 5 Counsel documents for the questioning of this Witness. 6 Now if Commission counsel was entitled to 7 rely upon the document in questioning this Witness, I 8 would have thought that other parties enjoy the same 9 right. 10 MR. DERRY MILLAR: No, that's -- My Friend 11 completely misunderstands why the documents are there. 12 The documents are there -- in this case there was a 13 reference to Scott Patrick, but Commission Counsel didn't 14 take this doc -- these are there -- we collect documents 15 to try to help the parties. 16 From what Mr. Falconer suggests perhaps 17 we'll have to revise our practice so that we'll only 18 include those that we intend to specifically go to if 19 that's the position that Mr. Falconer wishes to take. 20 He could -- My Friend can ask the question 21 but -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. DERRY MILLAR: -- he changed the 24 question the second time around. 25 COMMISSIONER SIDNEY LINDEN: Well --
601 MR. DERRY MILLAR: The second time around 2 he -- he made it a little less objectionable. 3 COMMISSIONER SIDNEY LINDEN: It strikes me 4 that he can ask the question without reference to the 5 document. 6 MR. DERRY MILLAR: He can ask the 7 question -- 8 COMMISSIONER SIDNEY LINDEN: Without even 9 reference to the document, just referring to the content 10 of it because it's obviously -- but you are -- 11 MR. JULIAN FALCONER: Mr. Commissioner, I 12 seem to be running loggerheads with Mr. Millar -- 13 COMMISSIONER SIDNEY LINDEN: Well, I -- 14 MR. JULIAN FALCONER: -- and it's 15 happening again. Now, I'm being told that he's going to 16 change the way he discloses documents that might be 17 relevant to a Witness -- 18 MR. DERRY MILLAR: No, I -- no -- 19 MR. JULIAN FALCONER: -- because I asked a 20 question about the documents. Now, I have to address it 21 on the record because all My Colleagues are going to 22 rightfully be critical of me that I've gone and attracted 23 this change in conduct. So, I -- 24 COMMISSIONER SIDNEY LINDEN: Again, you're 25 being much too sensitive.
611 MR. JULIAN FALCONER: He said, Maybe I'll 2 have to change this. 3 MR. DERRY MILLAR: No, no. He's being 4 much -- My Friend makes criticisms of Commission Counsel 5 at a drop of the hat. 6 COMMISSIONER SIDNEY LINDEN: And -- 7 MR. DERRY MILLAR: And then when 8 Commission Counsel says, Well, perhaps in response to My 9 Friend we should do X or Y, he -- My Friend then wants to 10 make a big show out of it and say we have to have -- 11 there's some big problem. There's not a problem. 12 What we are trying to do is deal with 13 everybody in the same way. We provide the documents, the 14 -- that we think might be of assistance to parties with 15 respect to a witness. We've done that, we'll continue to 16 do that. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. DERRY MILLAR: It -- and -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. DERRY MILLAR: I don't know why My 21 Friend just simply doesn't ask the question did this, you 22 know, did he say this, too or -- 23 COMMISSIONER SIDNEY LINDEN: Yes, now -- 24 MR. JULIAN FALCONER: I stand by the 25 transcript.
621 COMMISSIONER SIDNEY LINDEN: Let's try 2 to -- 3 MR. JULIAN FALCONER: We'll all get access 4 to a transcript tonight. 5 COMMISSIONER SIDNEY LINDEN: Just a 6 minute. Just a minute, Mr. Falconer. Try to ask a 7 question and let's see if we can move on. Try to ask a 8 question. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Based on your communications with Ron 12 Fox in and around the time and/or Julie Jai, does this 13 reference, quote, "Deb Hutton doesn't think much of the 14 I/M group" mean anything to you?" 15 A: No, sir. 16 Q: Thank you. Was the Interministerial 17 Committee ever referred to as the I/M Group? 18 A: I -- I don't know. I didn't refer to 19 it in that fashion. 20 Q: Fair enough. Did it ever come to your 21 attention that Deb Hutton was unimpressed with the 22 Interministerial Committee? 23 A: Not at the time, no. 24 Q: Did it come to your attention 25 subsequently?
631 You'll have to forgive me, you said, "not 2 at the time," so I -- I have to ask you; you invited it. 3 A: Well, I believe I may have picked up 4 on something that the Inquiry has examined since. 5 Q: Fair enough. So, you're saying you 6 heard evidence at this Inquiry? 7 A: Yes. 8 Q: All right. To be fair to you that -- 9 that's probably not going to advance us much. 10 A: No. 11 Q: But, thank you for being clear. There 12 is an e-mail that is a document number and I handed out 13 copies yesterday. And I regret to say, Mr. Commissioner, 14 that somehow it looks like I handed out all my copies. 15 It's a short e-mail that unfortunately has 16 my markings on it. I'm wondering of after Mr. Millar and 17 I have been set-toing, now I can get his help? 18 COMMISSIONER SIDNEY LINDEN: Now, you need 19 his help? 20 MR. JULIAN FALCONER: Yeah, of course, it 21 always works like this. 22 I've got an e-mail that's a short e-mail 23 that's Document Number 1003660. I do not believe it's 24 been made an exhibit. It's a one (1) page e-mail and it 25 was provided to the Witness last night. It's -- it's
641 eight (8) or nine (9) lines and I'm wondering if I may 2 borrow Mr. Millar's clean copy. Him and I can look at the 3 document. I'd appreciate that. 4 If I could have this handed to the Witness, 5 please? 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Is this the 10 one that's dated February 20th '96? 11 MR. JULIAN FALCONER: That's correct. 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 MR. JULIAN FALCONER: And I believe I gave 14 a copy already. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. JULIAN FALCONER: That's why I'm 17 without a copies. 18 Now, this is an e-mail from Julie Jai to 19 Yan Lazor, copy to Ms. Pereira, priority high dated 20 February 20th, 1996. Quote: 21 "Scott Patrick (acting for Ron Fox for 22 this week) called to let me know that 23 there is a meeting of political staff 24 and Marcel Beaubien, MPP this afternoon 25 re. Ipperwash.
651 Also ,tomorrow at 3:00 p.m. there is a 2 meeting in room 6301 Whitney Block (MNR 3 territory) apparently called by Deb 4 Hutton involving key ministries re. 5 Ipperwash. 6 Scott asked if we would be attending. I 7 said that I hadn't heard about the 8 meeting, but would check with you. 9 Have you heard anything about it? Have 10 you had any feedback from AK on her 11 meetings with Larry or PO re. the 12 emergency procedures? 13 Scott also mentioned that he thought 14 things would be really hot tomorrow at 15 the ICO and asked if you would be 16 attending. I said I didn't think so." 17 Did you get an opportunity to see that e- 18 mail last night? 19 A: Yes, sir. 20 Q: All right. Do you recall the 21 conversation that Julie Jai says you had with her? 22 A: No, sir. 23 Q: All right. Could you assist me in 24 respect of -- of the communication process followed? 25 Would have been consistent with your role in acting for
661 Ron Fox to have communicated with Julie Jai this kind of 2 information? 3 A: Yes, sir. 4 Q: All right. Would it also be 5 consistent with your memory that things had gotten, 6 quote/unquote, "hot at the ICO"? 7 A: I believe that refers to another 8 matter, sir. 9 Q: All right. 10 A: My recollection of that is -- my 11 recollection of that is that was a meeting that the 12 current Secretary of ONAS, Andromache, and I can't 13 pronounce or recall her last name -- 14 COMMISSIONER SIDNEY LINDEN: Karakatsanis. 15 THE WITNESS: Thank you, Your Honour. I'm 16 not going to attempt it, though, was to be having with the 17 first nations leadership the next day at the ICO; that's 18 my recollection. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: All right. 22 A: I don't believe it was related to 23 Ipperwash. 24 25 (BRIEF PAUSE)
671 Q: Can you assist me as to your knowledge 2 as to how matters had developed such that Julie Jai would 3 no longer be included in meetings convened by Deb Hutton 4 of key ministries around Ipperwash in February 1996? 5 Do you have any knowledge on why Julie Jai 6 would be left out of the loop? 7 A: My recollection was that as -- as we 8 got into the fall of '95, I'm going to suggest in October/ 9 November, that Mr. Yan Lazor took on a prominent role as 10 the acting Secretary and I recall more involvement with 11 him than with Julie. 12 Q: All right. I propose to file this e- 13 mail as the next exhibit. 14 THE REGISTRAR: P-764, Your Honour. 15 16 --- EXHIBIT NO. P-764: Document number 2003660. E- 17 mail from Julie Jai to Yan 18 Lazor re. Ipperwash. 19 20 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 21 Downard...? 22 MR. PETER DOWNARD: Just an observation, 23 sir. I haven't objected to any of My Friend's questions, 24 obviously, on this point but at some point we get beyond 25 the facts surrounding the death of Dudley George and I
681 just simply wanted to raise that concern, so I would not 2 be taken as having waived it. 3 COMMISSIONER SIDNEY LINDEN: We're all 4 concerned about that, so thank you. Carry on. 5 6 (BRIEF PAUSE) 7 8 MR. JULIAN FALCONER: It's always 9 difficult for Counsel not to respond to a non-objection -- 10 COMMISSIONER SIDNEY LINDEN: Try your 11 best. 12 MR. JULIAN FALCONER: -- which amounts to 13 a musing. 14 COMMISSIONER SIDNEY LINDEN: Try your 15 best, Mr. Falconer. 16 MR. JULIAN FALCONER: With your 17 encouragement, Mr. Commissioner, anything could be done. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 20 CONTINUED BY MR. JULIAN FALCONER: 21 Q: I have provided a copy, I believe, to 22 the Commissioner and to Counsel and the Witness as well, 23 of Document Number 1100 -- well, I'm going to start over 24 because it's a real long set of zeros. 11000007. So, 25 document 11000007, which starts as a memo from Dennis
691 Brown to Nancy Austin of September 6th, 2001. 2 Do you have that document, Inspector 3 Patrick? 4 A: I believe I have it. I -- I may have 5 some difficulty locating it. 6 Q: That's all right. Take a moment. 7 8 (BRIEF PAUSE) 9 10 A: What's -- what's the date of the 11 document, sir? 12 Q: The date of the document is -- it says 13 under date, "9/6/2001" which is September 6th, 2001. It 14 would have been one of the documents I -- it has this -- 15 A: I have it. 16 Q: You have it now? 17 A: I have it, yes. 18 Q: Thank you. I think you have it as 19 well, Mr. Commissioner? 20 COMMISSIONER SIDNEY LINDEN: Yes, I have 21 it. 22 23 CONTINUED BY MR. JULIAN FALCONER: 24 Q: Now, did you get a chance to review 25 this document last night?
701 A: Yes, sir. 2 Q: Right. I specifically want to ask you 3 about a transcript of the comments made on September 6th, 4 2001 by then-Premier Harris. 5 Those comments can be found at the third 6 page in of the document. 7 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 8 Millar...? 9 MR. DERRY MILLAR: At some point the -- 10 this is a statement of then-Mr. -- the Premier, I guess, 11 Premier Harris, in 2001 and the document is not a -- this 12 is not a document -- it was a statement made in 2001. 13 This Witness is here to testify to what the Witness did in 14 1995 with respect to the issues surrounding Ipperwash. 15 Now, perhaps I'm -- I should wait and hear 16 what My Friend's question is, but it seems quite far 17 removed from what we're here for. 18 COMMISSIONER SIDNEY LINDEN: Well, you're 19 alerting us and so is Mr. Downard that there -- you got to 20 find some date to not go beyond, but we should hear the 21 question, all of us, before we jump to any conclusions. 22 MR. JULIAN FALCONER: And, Mr. 23 Commissioner, my difficulty is the time lapse that I lose 24 with objections before I ask a question and the inevitable 25 objection after the question means I'm doubling up on
711 objections and My Friends keep prefacing it, maybe I 2 should wait for the question. 3 But then they don't, so I'm your hands, but 4 the fifteen (15) -- 5 COMMISSIONER SIDNEY LINDEN: All right. 6 MR. JULIAN FALCONER: -- minutes now goes 7 longer because I -- I can't get the question out. 8 COMMISSIONER SIDNEY LINDEN: All right, 9 that's fine. 10 Yes, Mr. Downard...? 11 MR. PETER DOWNARD: Where we're going with 12 this is -- is, it appears, to be exactly what My Friend 13 sought to do previously with the statement of Mr. Harris 14 in the Hansard with respect to we waived any privilege. 15 He's going to put these fragmentary 16 statements to this Witness and attempt to have this 17 Witness impugn Mr. Harris' credibility -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. PETER DOWNARD: -- by commenting on 20 the statements, when Mr. Harris is not here -- 21 COMMISSIONER SIDNEY LINDEN: Well -- 22 MR. PETER DOWNARD: -- and is not having 23 an opportunity to fairly respond to these matters, and 24 since Mr. Falconer took that approach previously, it has 25 been attempted again, and your Counsel, I believe, raised
721 an objection to proceeding further along that basis and so 2 I -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 OBJ MR. PETER DOWNARD: -- assert the same 5 objection. 6 COMMISSIONER SIDNEY LINDEN: Yes, well -- 7 MR. JULIAN FALCONER: So, I don't ask a 8 question now. 9 COMMISSIONER SIDNEY LINDEN: No. 10 MR. JULIAN FALCONER: My Friends simply 11 rise and object -- 12 COMMISSIONER SIDNEY LINDEN: No. 13 MR. JULIAN FALCONER: -- in anticipation 14 of a question. This isn't a process -- 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. JULIAN FALCONER: -- I'm familiar 17 with, so that's my difficulty, Mr. Commissioner. 18 COMMISSIONER SIDNEY LINDEN: All right. 19 All right. Let me -- it appears, and we may be wrong, if 20 we're wrong, you'll tell us, it appears as if you're 21 planning or purporting to cross-examine this witness with 22 a statement that Mr. Harris made in a legislative assembly 23 and we've already agreed that that's not a proper 24 procedure. 25 You may be able to cross-examine Mr. Harris
731 with it. 2 MR. JULIAN FALCONER: There are several 3 points to that, Mr. Commissioner. Firstly, I haven't 4 asked a question. 5 COMMISSIONER SIDNEY LINDEN: No. 6 MR. JULIAN FALCONER: And I maintain, with 7 respect, while you are trying to address proper -- I mean 8 I -- 9 COMMISSIONER SIDNEY LINDEN: Yes. All 10 right. 11 MR. JULIAN FALCONER: -- understand your 12 position, Mr. Commissioner, trying to address what your 13 Counsel said and Mr. Downard said, but it seems to me, 14 with respect, that it is a waste of your time to have 15 Counsel object before a question is asked. 16 COMMISSIONER SIDNEY LINDEN: We don't know 17 your question. I'd like to hear your question. Let's 18 hear your question, Mr. Falconer. 19 MR. JULIAN FALCONER: Thank you. 20 21 CONTINUED BY MR. JULIAN FALCONER: 22 Q: At page 2, and I'm going to have to go 23 back and start the question over because, to be honest, 24 Inspector Patrick, my memory's only so good. 25 All right? We'll start over again.
741 These are purported statements of Premier 2 Harris. You see the third page in? This is a transcript 3 entitled, Cabinet Office TV Transcripts; do you see that? 4 If you go -- 5 A: Yes. 6 Q: All right. And it says: 7 "Premier diffuses concerns over 8 attendance at meeting prior to shooting, 9 CP-24, September 6th, 2001, 12:30 p.m." 10 You -- 11 A: Yes. 12 Q: -- see that? Now the second page into 13 this transcript, Premier Harris is quoted as saying, 14 quote: 15 "I've never met with police at any time 16 at any event. These two (2) police 17 officers were seconded to the Solicitor 18 General as part of the committee 19 established by the NDP followed 20 procedurally there. 21 I was given an update on the situation 22 and the suggestion was that we would 23 seek an injunction." 24 Now, what I want to ask you, sir, is were 25 you a police officer on September 6th, 1995 when you met
751 with Premier Harris? 2 COMMISSIONER SIDNEY LINDEN: Yes...? 3 MR. PETER DOWNARD: My Friend is doing 4 exactly what I thought he was going to do. He's starting 5 to ask a chain of questions to get this Witness to comment 6 on the statements of Premier Harris when Premier Harris is 7 not here to fairly respond to this. It's an attempt to 8 attack his credibility. My Friend's doing exactly what I 9 said. 10 COMMISSIONER SIDNEY LINDEN: I think 11 that's the reason why the objections come before he asked 12 the question is this -- 13 MR. JULIAN FALCONER: Well, Mr. 14 Commissioner, just stopping there for a moment. The 15 reasons the objections are coming before the questions are 16 they are improper objections. You don't object to a non- 17 question. I asked the question now they object. 18 My problem is I lost five (5) minutes 19 trying to convince My Friends to wait for a question. 20 COMMISSIONER SIDNEY LINDEN: All right. 21 The objection has now been made and -- 22 MR. JULIAN FALCONER: Fair enough. 23 COMMISSIONER SIDNEY LINDEN: -- I'm 24 upholding the objection so I'm asking you -- 25 MR. JULIAN FALCONER: Without hearing from
761 me? 2 COMMISSIONER SIDNEY LINDEN: Well, I don't 3 need to hear from you on this. 4 MR. JULIAN FALCONER: Well respect, Mr. 5 Commissioner, I -- I'm asking on behalf of -- 6 COMMISSIONER SIDNEY LINDEN: We've already 7 ruled on this. The reason why I am saying that is because 8 we've already dealt with this issue. 9 MR. JULIAN FALCONER: Well, I'm asking on 10 behalf of Aboriginal Legal Services of Toronto to be able 11 to address you on the question I asked. 12 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 13 Rosenthal...? 14 MR. PETER ROSENTHAL: With great respect, 15 Mr. Commissioner, good morning. This area would be of 16 interest to my client as well and may I clarify as follows 17 of what I understand from the objection and the response. 18 Mr. Falconer wants to establish certain 19 facts through this Witness. 20 COMMISSIONER SIDNEY LINDEN: He doesn't 21 need this transcript to do it. 22 MR. PETER ROSENTHAL: Well, he asked -- he 23 asked, Were you a police officer at the time, and -- and 24 that question was not answered and it was objected. 25 COMMISSIONER SIDNEY LINDEN: But, he
771 doesn't need this transcript to ask the question. That's 2 the point. 3 MR. PETER ROSENTHAL: He may or may not 4 need the transcript to ask the question -- 5 COMMISSIONER SIDNEY LINDEN: But, that's 6 the point. We don't want to use the transcript of the -- 7 what occurred in the Legislative Assembly with Mr. Harris 8 when you're are cross-examining this witness. He can ask 9 him if he was a police officer at that time. 10 MR. PETER ROSENTHAL: With respect -- with 11 respect, may I just explain my perspective on this, sir? 12 Mr. Harris will be testifying and he will 13 be undoubtedly cross-examined on this material. 14 COMMISSIONER SIDNEY LINDEN: I assume 15 that. 16 MR. PETER ROSENTHAL: And in the course of 17 cross-examining Mr. Harris, we will want to know some 18 factual background and in particular whether or not this 19 officer was known to be a police officer in that time 20 might be of interest when we cross-examine Mr. Harris 21 about his -- 22 COMMISSIONER SIDNEY LINDEN: He can ask 23 that question. He doesn't need this transcript to ask 24 that question. That's a question that he can ask. 25 MR. PETER ROSENTHAL: Well -- but, that
781 was objected to, that question. 2 COMMISSIONER SIDNEY LINDEN: Well it was 3 the manner -- there's a lot more than that. 4 MR. PETER ROSENTHAL: And as general -- 5 in general it's important to establish a factual 6 background some of which might lead to a confrontation 7 with Mr. Harris when he testifies. It's not to be 8 characterized as Mr. Downard indicated. 9 COMMISSIONER SIDNEY LINDEN: I think the 10 question is -- 11 MR. DERRY MILLAR: I think that, 12 Commissioner, if I might, just so that you understand, 13 this is not purportedly from Hansard. This appears to be 14 an interview. I just wanted to make sure that you 15 understood that. 16 But secondly, just to address Mr. 17 Rosenthal, this Witness gave evidence yesterday as to what 18 he was doing on September 6th, what his position was, what 19 happened at the meeting where the Premier attended. We 20 have all of that. 21 COMMISSIONER SIDNEY LINDEN: I thought so. 22 That's why I don't understand -- 23 MR. DERRY MILLAR: We have all of that, 24 yes. 25 COMMISSIONER SIDNEY LINDEN: -- I don't
791 understand the point of the question. 2 MR. DERRY MILLAR: It's -- and -- and part 3 of this is simply argument. 4 COMMISSIONER SIDNEY LINDEN: Well, I 5 thought we had that question well established, or the 6 answer to that question. 7 Are you ready to move on, Mr. Falconer? 8 MR. JULIAN FALCONER: I still asked for 9 the right to be able to address you on the question. 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MR. JULIAN FALCONER: It just seems to me, 12 Mr. Commissioner, out of fairness, you -- you've always 13 been fair to the parties. 14 COMMISSIONER SIDNEY LINDEN: Yes, I have. 15 MR. JULIAN FALCONER: And I'm asking for 16 that -- that right. 17 COMMISSIONER SIDNEY LINDEN: All right. 18 Go ahead. 19 MR. JULIAN FALCONER: Thank you. 20 Counsel can be viewed by a court as needing 21 something or not needing something and -- and that's fair. 22 But, the -- the test for the propriety of the question is 23 not whether you need something, is whether it's proper to 24 use it. 25 And with respect, the issue of my needing
801 something is different than the propriety of its usage. 2 Now I propose to put this transcript to Premier Harris and 3 that he mislead Ontario on September 6th, 2001 when he 4 said -- 5 COMMISSIONER SIDNEY LINDEN: Please don't 6 make your argument now. He's -- 7 MR. JULIAN FALCONER: But I'm making the 8 argument on the question. 9 COMMISSIONER SIDNEY LINDEN: Well, I don't 10 want to hear your argument, your ultimate argument now -- 11 MR. JULIAN FALCONER: I'm not. 12 COMMISSIONER SIDNEY: -- on -- 13 MR. JULIAN FALCONER: I'm doing my 14 argument on the question. 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. JULIAN FALCONER: On what I propose to 17 do with Premier Harris and why it's proper to do this now. 18 COMMISSIONER SIDNEY LINDEN: No, you're 19 not. You're going beyond that and you're making your 20 general argument. 21 MR. JULIAN FALCONER: Well, I will 22 continue and try to restrict to what you want to hear. 23 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 24 do you have an objection at this point? 25 OBJ MR. PETER DOWNARD: I have strong
811 objection. My Friend has a bad habit of making seriously 2 damaging statements under the protection of absolute 3 privilege against the character of my client when he's not 4 putting it to my client, to his face, and giving with fair 5 opportunity to response. That's completely improper. 6 COMMISSIONER SIDNEY LINDEN: You see, the 7 danger of this, Mr. Falconer, is that the media report 8 this whether or not it's done properly or not. 9 MR. JULIAN FALCONER: This is -- 10 COMMISSIONER SIDNEY LINDEN: And so we 11 have to be particularly careful of what we do. 12 MR. JULIAN FALCONER: And I have been -- 13 COMMISSIONER SIDNEY LINDEN: Everything is 14 on a live web cast and we have to be particularly careful 15 with respect to what we do. 16 MR. JULIAN FALCONER: I agree -- I agree 17 Mr. Commissioner, and that's why counsel should be 18 particularly careful before they accuse other counsel 19 being personally improper on the live web cast. 20 COMMISSIONER SIDNEY LINDEN: But -- 21 MR. JULIAN FALCONER: Mr. Downard 22 suggested that -- I have to be able to respond. I mean I 23 can't just be the subject of attacking and be told to sit 24 down. 25 COMMISSIONER SIDNEY LINDEN: Yes.
821 MR. JULIAN FALCONER: Mr. Downard 2 suggested that Mr. Harris isn't here to represent himself. 3 Mr. Harris is entitled to be personally here and he has a 4 lawyer here who's up during most of my question whether I 5 even ask them or not. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. JULIAN FALCONER: Mr. Harris is 8 represented. I was in the midst of trying to address the 9 Court on why my question was proper. 10 COMMISSIONER SIDNEY LINDEN: What is the 11 question? I've forgotten the question. Now, in order to 12 follow your argument I have know what is your question? 13 MR. JULIAN FALCONER: Yes. 14 COMMISSIONER SIDNEY LINDEN: What question 15 do you wish to ask this Witness? 16 MR. JULIAN FALCONER: At the time -- I 17 read him the passage, quote, "I've never met with police 18 at any time at any event." 19 COMMISSIONER SIDNEY LINDEN: I don't think 20 you need to ask that. You can ask the question. You 21 already have the answer to that question. You've already 22 asked that question yesterday. We know that this officer 23 was an officer at that time. I don't see why you need to 24 do that. It does not advance this matter one (1) bit. 25 MR. JULIAN FALCONER: Mr. Downard -- well,
831 if -- if I'm not assisting the Court then I apologize -- 2 COMMISSIONER SIDNEY LINDEN: Yeah. 3 MR. JULIAN FALCONER: -- but Mr. Downard - 4 - Mr. Downard yesterday, by way of example, on previous 5 examination of a previous witness put to the previous 6 witness what another witness had said -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN FALCONER: -- in these 9 proceedings because traditionally Counsel routinely if 10 there's two (2) versions of events provide the other 11 version to the Witness to get the Witness to address it, 12 which is what I did with Superintendent Fox, which is what 13 was permitted because Premier Harris gives a different 14 version of events than what this Witness experienced with 15 the Premier. 16 The fact that it makes Premier Harris look 17 bad is not my -- 18 COMMISSIONER SIDNEY LINDEN: I -- 19 MR. JULIAN FALCONER: -- the 20 responsibility of my client. And I'm not here to protect 21 Premier Harris' reputation; that's Mr. Downard's work. 22 COMMISSIONER SIDNEY LINDEN: Mr. Falconer, 23 you're going off again and I'm asking you to please move 24 on. We already know that this Witness was an officer at 25 that time and if that's what you're trying to establish --
841 MR. JULIAN FALCONER: That was the first 2 question. 3 COMMISSIONER SIDNEY LINDEN: -- that's 4 already established. 5 MR. JULIAN FALCONER: So -- 6 COMMISSIONER SIDNEY LINDEN: It doesn't 7 help me to hear it again. 8 MR. JULIAN FALCONER: -- may I ask -- may 9 I ask my next question. 10 COMMISSIONER SIDNEY LINDEN: Well, I don't 11 know what your next question is. 12 13 CONTINUED BY MR. JULIAN FALCONER: 14 Q: Does the fact, as Premier Harris put 15 it, that you were seconded to the Solicitor General at the 16 time that you met with him make it any more appropriate 17 for the Premier to have personally expressed his concerns 18 to you at the meeting of September 6th, 1995? 19 A: I don't believe so, no. 20 Q: I propose to file this document number 21 being Document Number 1 -- or Document Number 11000007 as 22 the next exhibit? 23 COMMISSIONER SIDNEY LINDEN: I mistakenly 24 referred to it as an excerpt from Hansard. I don't know 25 what it is, but it's attached to a memo.
851 MR. JULIAN FALCONER: So, you know, Mr. 2 Commissioner, the context for the document is a 3 memorandum. It is sent from, what appears an Assistant 4 Deputy Attorney General to Dennis Brown asking for the 5 accuracy of Premier Harris' transcribed comments that 6 appear in a TV interview? 7 MR. JULIAN FALCONER: You'll see at the 8 top -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. JULIAN FALCONER: -- of the third page 11 it says, "Cabinet Office TV Transcripts". 12 It appears that the Cabinet obtained a 13 transcript of Premier Harris' CP-24 comments -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. JULIAN FALCONER: -- on September 6, 16 2001? 17 COMMISSIONER SIDNEY LINDEN: What exhibit 18 number is this? 19 THE REGISTRAR: P-765, Your Honour. 20 COMMISSIONER SIDNEY LINDEN: Okay. 21 22 --- EXHIBIT NO. P-765: Document number 11000007. 23 Memo to Nancy Austin from 24 Dennis Brown re. Ipperwash 25 litigation statements by
861 Premier Harris, September 2 06/'01. 3 4 CONTINUED BY MR. JULIAN FALCONER: 5 Q: You indicated, Inspector Patrick, that 6 you had an opportunity to hear or see and read the 7 evidence of now-Superintendent Fox. 8 Did you have any concerns or did you have 9 any disagreement with how he testified about some of the 10 systemic problems arising out of the Ipperwash incident? 11 Did you agree with his views on the 12 systemic issues? 13 A: You -- you would have to refresh me on 14 that exact excerpt. Systemic in what -- what regard? 15 Q: All right. You also referred to the 16 value of a buffer as you did yesterday. 17 A: Yes. 18 Q: But secondly he spoke to the issue of 19 -- you testified to the issue of the lack of clarity as to 20 the functions of a First Nations liaison officer and the 21 usefulness of training. 22 Do you agree with him in that regard? 23 A: Yes. 24 Q: He spoke to the fact that that was one 25 (1) of the features he figures may have been a problem in
871 this particular incident. 2 Do you agree with him in that regard? 3 A: Yes. 4 5 (BRIEF PAUSE) 6 7 MR. JULIAN FALCONER: I'll just wrap it 8 up. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 11 CONTINUED BY MR. JULIAN FALCONER: 12 Q: When you left the IMC meeting in and 13 around 11:45 on the morning of September 6th, 1995 it's 14 correct that you were in the presence of Superintendent 15 Fox, but also Tim McCabe and Elizabeth Christie; is that 16 correct? 17 A: Yes. 18 Q: There is an evidentiary reason I'm 19 asking you these next questions. Can you assist me, you 20 would have been walking with them from Atrium on Bay, 21 correct? 22 A: We walked briefly. 23 Q: Yes. 24 A: Up the street, yes. 25 Q: And during your walk together, was
881 that when the page came in? 2 A: Yes. 3 Q: All right. And then I take it it's 4 not every day you're paged to attend at the Legislature or 5 your senior is; that doesn't happen every day? 6 A: No. 7 Q: Did you go for coffee or do something 8 else prior to going over to the Legislature building? 9 A: No, sir. 10 Q: You moved there with dispatch? 11 A: We did, yes. 12 Q: All right. So just roughly, are we 13 talking -- it would have taken you less than fifteen (15) 14 minutes to get to the Legislature building? 15 A: Yes. 16 Q: And so is it fair to say, then, you 17 would have a recollection at the time lapse between the 18 last time you saw Elizabeth Christie that morning, after 19 you left the meeting, and the time you arrived at the 20 Legislature building would have been no more than fifteen 21 (15) minutes? 22 A: Correct, yes. 23 Q: And then you said that you met the 24 security guard and there was this exchange about being 25 unusual going to the Premier's suite, yes?
891 A: Yes, sir. 2 Q: And then again, you moved with 3 dispatch to the Premier's suite? 4 A: We did. There was -- there was a 5 delay when we got to the floor that the Premier's office 6 is located on. There were a number of media interviews 7 underway and the OPP member that was with us said we'll 8 have to hold up here and we did for two (2) or three (3) 9 minutes. 10 Q: All right. Roughly how much time 11 elapsed from the time you walked in the Legislative 12 building to the time you walked in the boardroom? 13 A: Five (5) minutes. 14 Q: All right. And when you walked in the 15 boardroom, was Mr. Taman coming in behind you or was he 16 already in there? 17 A: He was in the room. 18 Q: All right. And during the entire time 19 you were there, did Mr. Taman leave the room? 20 A: No, sir. 21 22 (BRIEF PAUSE) 23 24 Q: Immediately after the cabinet -- 25 sorry, immediately after the meeting in the dining room
901 that you called a cabinet meeting, did you -- do you 2 recall any express discussions you would have had with Tim 3 McCabe, Ms. Jai or the deputy minister, after the meeting 4 in the dining room, right after? 5 A: No, the only conversation I recall was 6 with Mr. McCabe and it was more -- it was later in the 7 afternoon and it was with respect to directions to Sarnia. 8 9 (BRIEF PAUSE) 10 11 Q: Do you recall having any discussions 12 or communications or being party to communications by Fox 13 with Commissioner O'Grady about the dining room meeting? 14 A: No, sir. 15 Q: Now, in the note of May 12th, 1997 16 it's apparent that it's been communicated to Connolly that 17 the Premier expressed a concern about the approach, 18 correct? 19 A: Yes, sir. 20 Q: And you've indicated that that -- what 21 was meant by that and what was conveyed to Connolly, I 22 take it, was that it was a concern over the time period of 23 the OPP approach, correct? 24 A: Yes, sir. 25 Q: Did Connolly ever explain to you how
911 he planned to include the existence of the expression of 2 concern by the Premier in his report? 3 A: No. 4 Q: So you wouldn't be able to help us on 5 why it doesn't appear in his report? 6 A: I haven't -- I haven't looked at his 7 entire report so I'm not aware of its existence in the 8 report or not. 9 10 (BRIEF PAUSE) 11 12 Q: I'm grateful for your assistance, 13 Inspector Patrick. 14 A: Thank you, sir. 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Mr. Falconer. We'll take a morning break now. 17 THE REGISTRAR: This Inquiry will recess 18 for fifteen (15) minutes. 19 20 --- Upon recessing at 10:22 a.m. 21 --- Upon resuming at 10:43 a.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed, please be seated. 25 COMMISSIONER SIDNEY LINDEN: Good morning,
921 Ms. Esmonde. 2 3 (BRIEF PAUSE) 4 5 CROSS-EXAMINATION BY MS. JACKIE ESMONDE: 6 Q: Good morning. My name is Jackie 7 Esmonde. I'll be asking some questions on behalf of the 8 Aazhoodena and George family group. 9 A: Yes, good morning. 10 Q: Now Mr. Falconer was asking you 11 yesterday regarding former Commissioner O'Grady and 12 whether it would have been appropriate for him to be at 13 the meeting in the Premier's dining room; do you recall 14 those questions? 15 A: Yes. 16 Q: And you had testified that, in your 17 view, it would not have been appropriate for him to have 18 attended at a meeting like that? 19 A: In my view, yes, ma'am. 20 Q: And I understand in terms of the 21 relationship between the Commissioner of the OPP and the 22 government, of course the Commissioner has the control and 23 management of the OPP? 24 A: Yes. 25 Q: And the deputy minister is responsible
931 for acting as a buffer between the Commissioner of the OPP 2 and the Solicitor General; is that your understanding? 3 A: The Commissioner reports to the deputy 4 minister who reports to the minister, yes. 5 Q: And the Solicitor General is entitled 6 to know in broad terms about the operational -- about the 7 operations of the OPP but is not entitled to give day to 8 day direction on police operations? 9 A: Yes, in broad terms. 10 Q: Now, in terms of the dining room 11 meeting, and I understand you had never, previously, in 12 your time with the Solicitor General, been part of a 13 meeting with the Premier and a number of cabinet 14 ministers? 15 A: Correct, yes. 16 Q: And you have never since? 17 A: No, I -- I was to cabinet again in my 18 role. 19 Q: Pardon me? 20 A: I was to cabinet on -- in cabinet 21 committee on two (2) or three (3) occasions in subsequent 22 years. 23 Q: Oh, I see. And in what context was 24 that? 25 A: As the special advisor, First Nations.
941 Q: Can you assist us in what the subject 2 matter of the meetings were that you participated in? 3 A: One was with respect to confirming the 4 negotiating mandate for the special advisor First Nations, 5 so essentially the negotiating mandate for the Solicitor 6 General in the triparted negotiations that were to occur. 7 I accompanied Minister Runciman and the 8 deputy minister to the -- to cabinet. 9 Q: Hmm hmm. And the second? 10 A: Was with respect to securing funding 11 for a -- for a policing agreement, I believe it was 12 Nishnawbe-Aski policing agreement. 13 Q: Okay then, fair to say that those -- 14 those meetings you participated in were not with respect 15 to a particular incident such as the Ipperwash meeting 16 that you told us about already? 17 A: No, they weren't. 18 19 (BRIEF PAUSE) 20 21 Q: Now I've put in front of you P-444(a) 22 which is a book of transcripts of various telephone calls 23 and I've asked you to turn to Tab 37. 24 A: Yes. 25 Q: This is the telephone call between
951 Inspector Carson, Inspector Fox and Superintendent Coles. 2 Sorry -- 3 A: Chief Superintendent Coles. 4 Q: Yes. Thank you. Chief Superintendent 5 Coles from September 6th, 1995 at approximately 2:10. And 6 could you turn to page 263? I'm just going to refer to a 7 brief passage here beginning at the bottom of the page 8 263, where then Inspector Fox is describing what occurred 9 at the dining room meeting. 10 A: Yes. 11 Q: It says: 12 "Fox: And he came right out [and this 13 is in reference to the Premier]. And he 14 came right out and said: 'I just walked 15 in on the tail end of this. The OPP in 16 my opinion made mistakes, they should 17 have done something right at the time', 18 and he said that will I'm sure [and he 19 says] that will I'm sure will all come 20 out in an inquiry some time after the 21 fact". 22 Carson: Yeah, yeah. 23 Fox: He believes he has the authority 24 to direct the OPP. 25 Carson: Oh.
961 Fox: Yeah. 2 Carson: Okay. 3 Fox: So? 4 Carson: [And this is the transcript 5 that you have here is has been changed 6 to reflect the accurate -- the actual 7 recording]." 8 Carson then says: 9 "I hope he talks to the Commissioner 10 about that. 11 Fox: Uh, pardon me? 12 Carson: I hope he and the Commissioner 13 and have that discussion." 14 Now first of all you testified yesterday 15 that in -- of we hearing the tapes or hearing 16 Superintendent Fox's testimony, your memory was refreshed 17 with respect to the Premier making a comment about the 18 police having to account for their actions later on. 19 Is that what you're referring to, this 20 particular passage? 21 A: That's correct, yes. 22 Q: Okay. And based on what he heard and 23 saw at the dining room meeting, Superintendent Fox 24 concluded that the Premier believed he has the authority 25 to direct the OPP and he testified to that.
971 Was that also your impression? 2 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 3 Downard? 4 MR. PETER DOWNARD: It's not an entirely 5 fair characterization of Inspector Fox's evidence. He 6 said in his direct examination that he understood that 7 what was made clear at that meeting was that any actions 8 by the OPP would be solely within the purview of the OPP. 9 Now I understand that that's contrary to 10 what he said on the transcript. But that was his evidence 11 for this Commission as to his understanding of what 12 actually happened at that meeting. 13 COMMISSIONER SIDNEY LINDEN: Perhaps you 14 should confine your question to the transcript. 15 MS. JACKIE ESMONDE: Well, I will do that, 16 but that's not exactly my recollection of the evidence. 17 But I don't have it in front of me. 18 COMMISSIONER SIDNEY LINDEN: Neither do I. 19 MS. JACKIE ESMONDE: But -- 20 COMMISSIONER SIDNEY LINDEN: But we do 21 have the transcript --- 22 MS. JACKIE ESMONDE: Yes, we do. I'll 23 re-frame the question this way then. 24 25 CONTINUED BY MS. JACKIE ESMONDE:
981 Q: We have here contemporaneous phone 2 call in which Superintendent Fox is describing what he saw 3 at the meeting and what he concluded from it -- from what 4 he observed. 5 A: Yes. 6 Q: And at the time he apparently said 7 that the Premier believes he has the authority to direct 8 the OPP. 9 A: It appears so, yes. 10 Q: Now did you also reach that conclusion 11 based on what you heard and saw at the dining room 12 meeting? 13 That the Premier believed he had the 14 authority to direct the OPP? 15 A: I don't recall that I thought of it in 16 that fashion, no. 17 Q: You have testified both today and 18 yesterday however, that you were upset following the 19 meeting, in part because of the apparent criticism that 20 was being directed towards the OPP? 21 A: Yes. 22 Q: By both the Premier and Minster 23 Hodgson? 24 A: Yes. 25 Q: And I take it you would agree that it
991 would be of concern to the Commissioner of the OPP that 2 government -- government ministers were directly 3 communicating criticism or concerns about OPP operations 4 to OPP officers. 5 That would be something that would be of 6 concern to the Commissioner? 7 A: Yes, it would. 8 Q: Now you -- you said earlier this 9 morning that you yourself did not communicate directly 10 with Commissioner O'Grady on the 6th? 11 A: Correct. Yes. 12 Q: And that you weren't aware of whether 13 Superintendent Fox had done so? 14 A: That's correct, yes. 15 Q: Now we have here in the 16 contemporaneous phone call Superintendent Fox referring to 17 the Commissioner already brought into the loop on this. 18 Now, can you assist us with respect to how 19 the Commissioner was in the loop? 20 A: No, I can't. 21 Q: Would you have expected that the 22 Commissioner would have been brought into the loop for 23 something as serious as -- as the Premier and at least one 24 (1) cabinet minister communicating criticisms to the OPP 25 officers of the nature you've described?
1001 A: Yes. 2 Q: And how do you -- can you assist us in 3 what way he would have been brought into the loop? 4 Who would have been -- who would have done 5 that? 6 A: It could have happened in two (2) 7 fashions that would have been proper, in my opinion, for 8 the deputy Solicitor General to raise the concerns with 9 the Commissioner or at least apprised him that there had 10 been some concerns and it would have been proper in -- in 11 our role -- in Superintendent Fox's role at the time and 12 then in my role as his successor, while we had a direct 13 reporting relationship with the Deputy Minister, we had 14 what I would term an indirect reporting relationship with 15 the Commissioner and we spoke to him from time to time on 16 matters. 17 So, there would been a venue there to raise 18 a concern if -- if required. 19 Q: Okay. And the deputy Solicitor 20 General, that was Dr. Todres, is that right? 21 A: Yes. 22 Q: And -- but you're not aware of whether 23 she, in fact, did communicate that to the Commissioner 24 as -- 25 A: No, I'm not.
1011 Q: -- evidence. 2 A: No. 3 Q: There's another reference to the 4 Commissioner in another document which is in your book at 5 Tab 9. 6 7 (BRIEF PAUSE) 8 9 A: In the Commission binder? 10 Q: Sorry, yes, the Commission binder. 11 A: Yes. 12 13 (BRIEF PAUSE) 14 15 Q: This is a handwritten note created by 16 Julie Jai recording some notes of her telephone 17 conversation with Ron Fox on September 6th, 1995. It's 18 Inquiry document 3001088 and has been marked as P-515. 19 20 (BRIEF PAUSE) 21 22 Q: Now, you'll note that the second 23 bullet point: 24 "Now OPP Commissioner is involved, 25 decisions will be made at his level."
1021 This was apparently some words that were 2 expressed by Superintendent Fox to Julie Jai, though 3 there's some question over the use of the word 4 "Commissioner". 5 Can you assist us, based on what you knew 6 at the time, with what that notation would be referring 7 to? 8 A: No, I can't, ma'am. 9 Q: Are you aware of whether the 10 Commissioner was involved in making decisions about the 11 Ipperwash incident? 12 A: I wasn't aware that he was. 13 Q: Now, Mr. Falconer had turned you, as 14 well, to a note from -- of Julie Jai at Tab 10. 15 16 (BRIEF PAUSE) 17 18 Q: And I'm going to take you to a 19 different -- different notation there. This is Inquiry 20 document 1012542, marked as P-516 and is -- appears to be 21 handwritten notes of Julie Jai recording a telephone 22 conversation with Ron Fox approximately 6:20 a.m. on 23 Thursday, September 7th, 1995. 24 One of the last points on that page is: 25 "Deputy Solicitor General Elaine and OPP
1031 Commissioner coming in. Will be 2 involved in meeting at 7:00 a.m. with PO 3 staff." 4 Which I assume is Premier's office staff. 5 A: Yes. 6 Q: Can you assist us in -- were you aware 7 that that meeting was planned? 8 A: I wasn't aware of a meeting and I have 9 no knowledge that a meeting took place. 10 Q: I see. Now, you would agree with me, 11 and I believe that you -- you may already have done so 12 that with -- with something as serious as the Premier and 13 the cabinet minister expressing criticism of OPP 14 operation, that's something that the Commissioner should - 15 - should have known about? 16 A: I believe he would have wanted an 17 awareness of that, yes, at some point. 18 Q: And if he had known about it, that 19 would be something that could intervene to stop? 20 A: Poss -- 21 Q: You would expect him to do that if he 22 was aware of it? 23 A: Possibly, yes. 24 Q: And to ensure that OPP officers were 25 not being unduly influenced by politicians?
1041 A: That could have been one of his 2 intentions, had he chosen to do that, yes. 3 Q: All right. Those are actions you 4 would have expected the Commissioner to take if he was 5 aware? 6 A: Yes. 7 Q: Now, turning the role of the 8 Interministerial Committee. Now, we understand that the 9 Interministerial Committee was a committee made up mainly 10 of civil servants from affected ministries when an 11 Aboriginal emergency occurred? 12 A: Correct, yes. 13 Q: And they would bring their expertise 14 to an emergency and make recommendations to their 15 minister? 16 A: They would report up to the Minister 17 through the Deputy Minster, yes. 18 Q: Now, we've heard evidence that 19 following the shooting the Interministerial Committee was 20 reorganized, that there was a change in -- in its -- in 21 its mandate, that it became a much smaller group that was 22 essentially responding to a request from what was called 23 the nerve centre. Are you aware of that? 24 A: I'm aware of it and -- yes. 25 Q: And it appears to me from some of your
1051 notes that you may actually have attended these -- some of 2 the nerve centre meetings? 3 A: Yes. 4 Q: Yes. And the nerve centre as it was 5 called was made up of ministers, senior political staff 6 and deputy ministers; is that correct? 7 A: Yes. 8 Q: Now, you were asked earlier about 9 whether you had any awareness of Ms. Hutton expressing 10 dissatisfaction with the functioning of the 11 Interministerial Committee. 12 You -- you said you were not aware at the 13 time? 14 A: Correct, yes. 15 Q: Now, we have heard evidence that at 16 the end of the September 6th, 1995 Interministerial 17 Committee Meeting Ms. Hutton stated in a loud voice that - 18 - something to the effect that, This was the most useless 19 meeting I have ever attended, It was a complete waste of 20 my time. 21 Did you hear any -- does that refresh your 22 memory? Did you hear her make a comment like that? 23 A: No, I -- I did not hear that. 24 Q: Can you assist us as to the reason why 25 the Interministerial Committee was reorganized, why that
1061 change was made? 2 A: I think it was a reaction to the -- to 3 the event. It -- it -- the Interministerial Committee as 4 I understood it didn't change so much. There were -- 5 there were those that had attended in the days leading up 6 to the event that no longer were involved and by that I 7 mean the political staff. Political staffers were in 8 attendance at the nerve centre if -- if that's the term 9 that we're using. 10 The Interministerial Committee itself 11 continued to exist with the same membership. Because of 12 the reaction of the Government to the issue it was given a 13 heightened importance I suppose. 14 And so for that reason the nerve centre was 15 composed of the three (3) Ministers, the three (3) 16 Deputies, Mr. Yan Lazor who was the Acting Secretary of 17 ONAS, and -- and political staff, and we met over -- there 18 were meetings over several days following the shooting. 19 Q: Was the change a response to 20 criticisms of the Interministerial Committee? 21 A: No, I believe -- I believe it related 22 to a heightened sense of urgency in terms of having the 23 appropriate decision makers at the table. 24 Q: I'd like to look at some notes from 25 one (1) of those meetings on September 8th.
1071 And this is something that was circulated 2 by e-mail on Friday so I'm not sure if it's actually in 3 your binder. 4 5 (BRIEF PAUSE) 6 7 Q: It's apparently in your red folder? 8 A: Yes. 9 10 (BRIEF PAUSE) 11 12 Q: Okay. If you could turn to the notes 13 from a meeting that is -- at the top it says: 14 "08 September 95, 16:30 Minister's 15 Boardroom Ipperwash." 16 A: Yes, I have it in front of me. 17 Q: You have that. Okay. If you could 18 turn to the second page. Just past the halfway mark you 19 have a line and then it says: 20 "Opinion re: Ipperwash Camp." 21 Do you see that? 22 A: I see that, yes. 23 Q: Okay. I'll just read the notations 24 into the record and then I have some questions for you 25 about this.
1081 It seems -- it says: 2 "CC - OPP okay. Defence Act - 3 delegation - may or may not want it. 4 [bullet point] injunctive relief like 5 Park process - use of armed forces - not 6 likely - trespass versus DND Act - Feds 7 involvement - interim measure." 8 Now, first of all, do you recall who was 9 providing this information during te meeting? 10 A: No, and if I could just indicate to 11 Your Honour, I first saw these notes this past Friday 12 evening and I had not seen them in ten (10) years. 13 And in preparing for my testimony in -- in 14 all frankness, I just haven't had a lot of opportunity to 15 focus on these notes. 16 Q: Do you recall who attended the 17 meeting? 18 A: Yes. 19 Q: And who was that? 20 A: The meeting was Chaired by Deputy 21 Minister Taman and co-Chaired by Deputy Todres. 22 Q: Hmm hmm. 23 A: The three (3) Ministers were in 24 attendance; ministers Hodgson, Harnick and Runciman; Ron 25 Fox and myself; Yan Lazor; the Executive Assistants to the
1091 ministers, Jeff Bangs, David Moran and Kathryn Hunt; and 2 Deb Hutton from the Premier's office; and an individual by 3 the name of Paul Rhodes from the Premier's office. 4 COMMISSIONER SIDNEY LINDEN: I'm not sure 5 if I heard who -- who's the author of these notes? 6 MS. JACKIE ESMONDE: Sorry, these are -- 7 these are your notes. 8 COMMISSIONER SIDNEY LINDEN: These are 9 your notes. 10 THE WITNESS: Yes, Your Honour. 11 COMMISSIONER SIDNEY LINDEN: Okay, that's 12 fine. 13 MS. JACKIE ESMONDE: There's no Inquiry 14 document number for these notes. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MS. JACKIE ESMONDE: As far as I'm aware. 17 18 CONTINUED BY MS. JACKIE ESMONDE: 19 Q: Was there anybody else who was in 20 attendance? 21 A: I believe Mr. Peter Allen was there as 22 well. 23 Q: Having gone over that list, does that 24 assist you in recalling who would have provided this 25 information about an opinion re. Ipperwash Camp?
1101 A: I believe that, as I recall, most of 2 the issues that were spoken to that had a -- a legal 3 context to them were spoken to by deputy minister Taman. 4 Q: Now this appears to be an opinion 5 about the options available for removing the Stoney 6 Pointers from the Ipperwash Camp. 7 Is -- does -- is that -- am I accurate in 8 describing what this is, based on your memory? 9 A: I don't know, ma'am. I don't -- I 10 don't specifically recall a discussion with regard to the 11 Camp. It's in my notes, but it doesn't prompt a 12 recollection of it. 13 Q: Okay. It will be difficult to ask you 14 any further questions given that answer. I'll try one -- 15 A: It's -- 16 Q: -- more. It says: "CC - OPP okay." 17 My reading of that would be Criminal Code, 18 OPP okay, given the context. 19 Do you agree with that? 20 A: I do. 21 Q: And can you assist us in what the OPP 22 was okay with? 23 A: I'd be -- 24 Q: It -- 25 A: I'd be speculating.
1111 Q: Okay. 2 A: I'd have to be interpreting my note 3 and... 4 5 (BRIEF PAUSE) 6 7 Q: Okay. So, you don't recall any -- you 8 can't assist us any further beyond what is recorded in the 9 note, is that... 10 A: Not at this time I can't, no. 11 12 (BRIEF PAUSE) 13 14 Q: Okay. One (1) final area. Just going 15 back to the dining room meeting. Now, you've told us that 16 when you came in -- yes, thank you. Mr. Millar has 17 reminded me that I should make the notes of the September 18 8th meeting an exhibit. 19 THE REGISTRAR: P-766, Your Honour. 20 COMMISSIONER SIDNEY LINDEN: 766. 21 22 --- EXHIBIT NO. P-766: Hand written notes of Mr. 23 Scott Patrick. September 24 08/'95. 25
1121 CONTINUED BY MS. JACKIE ESMONDE: 2 Q: About -- now, you -- you've us that 3 when you came in, you recall that Larry Taman was 4 providing some information about the various options for 5 an injunction? 6 A: Yes. 7 Q: Now, Superintendent Fox has testified 8 that it was his impression that the decision to pursue an 9 ex parte injunction, that is one without notice, had 10 already been made in -- 11 A: Yes, I understand -- I understand 12 that, yes. 13 Q: Was that also your impression? 14 A: No, it wasn't. 15 Q: What was your impression then? 16 A: My impression at the -- after we left 17 the meeting was that we were proceeding in the normal 18 course. And by that I mean an interlocutory injunction 19 application. 20 Q: Sorry, I didn't catch the beginning of 21 your -- 22 A: That -- that a standard injunction 23 would be applied for. 24 Q: It was your understanding at what 25 meeting?
1131 A: Following the meeting in the dining 2 room. 3 Q: The dining room. Following the -- 4 following the Interministerial Committee Meeting or 5 following the dining -- 6 A: You're -- you're asking me with 7 respect to the dining room? 8 Q: Yes. 9 A: Yes, my -- my sense, my understanding 10 is as I left the meeting of the dining room was that we 11 were staying the course and that a standard application 12 was being brought forward. 13 Q: And -- 14 A: I know that differs from 15 Superintendent Fox's testimony. 16 Q: If we were -- I -- I understand that 17 me hear from Premier Harris that he had expressed his 18 preference for an ex parte injunction, 19 Do you recall that? 20 A: No, I don't. 21 Q: Thank you. Those are all my 22 questions. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Ms. Esmonde. 25 Mr. Neil...?
1141 (BRIEF PAUSE) 2 3 MR. CAMERON NEIL: Good morning, 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Good morning. 6 7 CROSS-EXAMINATION BY MR. CAMERON NEIL: 8 Q: Good morning, Inspector. 9 A: Good morning, sir. 10 Q: My name is Cam Neil, I'm one (1) of 11 the lawyers acting on behalf of the residents of 12 Aazhoodena, also known as Stoney Pointers. Just a couple 13 of quick questions for you this morning. 14 If I could turn your attention to Tab 5 of 15 your book of documents. It's Inquiry Document 1012232 and 16 Exhibit P-498. 17 A: Yes, sir. 18 Q: I believe these are the -- the 19 guidelines of the IMC Committee that have been discussed 20 in your testimony; is that correct? 21 A: That's correct, yes. 22 Q: And you were familiar with these 23 guidelines on September the 6th, 1995? 24 A: Generally, yes. 25 Q: I'd like to turn your attention in
1151 particular to Item Number 11. You'll see it's a list of 2 discretionary powers of the Committee. 3 Would you agree with that? 4 A: Yes. 5 Q: And there's a list of items from A to 6 G, correct? 7 A: Correct, yes. 8 Q: I'd like to go through them one-by-one 9 and in the context of -- of the meeting of September 6, 10 1995 have you address each one. 11 Let's start out with -- with A, which was 12 define problem. 13 And do you recall the meeting defining a 14 problem on September the 6th? 15 A: I believe the problem was self- 16 evident. We were meeting to -- 17 Q: And that self-evident problem was 18 there was an occupation, correct? 19 A: Correct, yes. 20 Q: And it needed to be ended, right? 21 A: That it needed to be resolved, yes. 22 Q: Resolved. Now, Item B was agree to a 23 negotiation agenda with all parties. 24 Is it safe to say that that particular 25 power was taken off of the table on September the 6th?
1161 A: It was made clear there were to be no 2 negotiations, yes. 3 Q: And item C is make decisions on third- 4 party intervention. Do you recall if any such decisions 5 were made? 6 A: There were discussions with respect to 7 the Federal Government, but just in passing. And I'm not 8 sure as a third part -- not -- not in the context of third 9 party intervention but would the involvement of the 10 Federal Government be helpful to resolving the matter 11 given that the issues had arisen from the Base. 12 Q: And outside of the Federal Government 13 any other third-parties? 14 A: Not at that time, no. 15 Q: At a later time? 16 A: Yes. 17 Q: When would that have been? 18 A: In the weeks following there were 19 discussions around a -- appointing a fact finder 20 negotiator individual who could represents the Province in 21 discussions. 22 Q: But after the fact? 23 A: Yes. 24 Q: So, it's safe to say given your 25 evidence Item D then, appoint a facilitator/negotiator,
1171 was not on the table on September the 6th? 2 A: It wasn't discussed at any length. 3 And I -- I believe I testified that I'm not sure the 4 Committee had got to that point yet. They were looking 5 for some additional information that would come back to 6 them from an anticipated meeting that -- later that day 7 involving Inspector Carson. 8 Q: Right. And that was because there was 9 an uncertainty as to the desires and the demands of the 10 occupiers? 11 A: Yes, there was some uncertainty. 12 Q: The next discretionary power is E: 13 "Involve Indian Commission of Ontario." 14 I take it that that wasn't discussed at the 15 meeting? 16 A: No. 17 Q: The next discretionary power was: 18 "Second Ontario Public Servants on an 19 emergency basis." 20 Do you recall whether that item was 21 discussed? 22 A: No it wasn't. 23 Q: In fact the last item, Item G: 24 "Recommend that legal action be taken." 25 That was certainly discussed, was it not?
1181 A: Yes, it was. 2 Q: And is it safe to say that the bulk of 3 the discussions actually involved this legal action 4 aspect? 5 A: The discussions were around a civil 6 remedy, yes. 7 Q: Do you recall whether there was any 8 discussions with respect to members of ONAS meeting with 9 the occupiers? 10 A: Not specifically, no. 11 Q: Thank you. Those are my questions. 12 A: Thank you, sir. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Neil. 15 I think, Mr. George...? 16 MR. JONATHAN GEORGE: Given what has 17 already been addressed, I have no questions. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Mr. George. 20 Mr. Horton...? 21 22 CROSS-EXAMINATION BY MR. WILLIAM HORTON: 23 Q: Thank you, Commissioner. 24 Inspector Patrick, my name is Bill Horton, 25 I act for the Chiefs of Ontario. I only have a few
1191 questions or hopefully it will be only a few questions for 2 you this morning. 3 A: Good morning, sir. 4 Q: And it's really to seek clarification 5 with respect to just two (2) or three (3) areas that are 6 of particular importance to me. 7 One is with respect to the discussions 8 about the injunction at the -- both the IMC meeting and 9 the meeting with the Premier. And I anticipate, based on 10 some questions that we asked by counsel for some of the 11 parties, that we may be hearing some suggestions that -- 12 from witnesses yet to come, that Deb Hutton or other 13 representatives of the government associated themselves, 14 somehow, with the suggestion that there should be an 15 injunction as part of the solution. And by that I mean 16 either suggested it or supported it in some way. 17 And I just want to be clear on this point. 18 My understanding of your evidence -- let's take the IMC 19 meeting first, is it is not your recollection that Ms. 20 Hutton was one of those who came and suggested an 21 injunction as a solution to the problem; is that correct? 22 A: Not entirely. She was a participant 23 in the discussions. 24 Q: Yeah. Now that's not what I asked. 25 A: Yes, I -- I guess I'm asking you to --
1201 if you could clarify -- 2 Q: That's not what I asked. What I asked 3 is, it was not Mrs. -- it was not Ms. Hutton's solution to 4 the problem that there should be an application for an 5 injunction, she was reacting to that suggestion that was 6 put forward by others? 7 A: She did react. I believe she 8 supported an ex parte injunction application. 9 Q: When you came to the end of the 10 meeting and you stated that the -- there was a consensus 11 among those who were supporting the traditional approach, 12 correct? 13 A: Hmm hmm. Correct. 14 Q: And that consensus was one which you 15 differentiated as being the traditional OPP approach which 16 was negotiations and apply for an injunction, correct? 17 A: Correct. 18 Q: And you said that there -- you were 19 not convinced or you did not perceive that there was 20 necessarily support from those who didn't favour that 21 approach, correct? 22 A: Correct. 23 Q: Okay. And that included Ms. Hutton, 24 correct? 25 A: Yes.
1211 Q: The latter group included Ms. Hutton? 2 A: Correct, yes. 3 Q: And Mr. Allen; is that correct? 4 A: Yes. 5 Q: Who else was included in that latter 6 group that you were not satisfied, supported the 7 traditional approach? 8 A: I would generally describe the MNR 9 staff that were in attendance. Mr. Allen spoke most on 10 behalf of the MNR. 11 Q: Right. And was -- when Ms. Jai 12 testified about the consensus at the end of the meeting, 13 she indicated that this was a consensus that she was 14 trying to get the meeting to coalesce around, at the end 15 of the meeting. 16 Would that be a fair summary of that? 17 A: I believe she endeavoured to do that, 18 yes. 19 Q: All right. And when you say that at 20 the end of the meeting you were not satisfied that Ms. 21 Hutton and Mr. Allen and so on necessarily supported that 22 consensus, I suggest to you that that impression that you 23 had was reinforced by the meeting that you had in the 24 Premier's office; correct? 25 A: Yes.
1221 Q: In other words, if someone were to 2 suggest that, by the end of the IMC meeting, everyone had 3 decided on a path that was to be followed, that wouldn't 4 be correct, would it? 5 A: No. 6 Q: And that was clearly demonstrated to 7 be incorrect by the meeting in the Premier's office where 8 exactly the same issues were debated in what you felt was 9 an upsetting fashion; right? 10 A: I believe so. 11 Q: So certainly it would not accord with 12 your understanding of the events of that day that the IMC 13 meeting had produced a consensus to proceed with -- with 14 an injunction? 15 A: That's correct. 16 Q: And, indeed, when we get to the 17 Premier's meeting, the same points can be made. It's not 18 your recollection that the Premier was proposing an 19 injunction. 20 He was reacting to the problems with the 21 injunction taking too long, isn't that your recollection? 22 A: Yes. 23 Q: And in terms of actively saying 24 anything that would support proceeding with an injunction, 25 you don't recall the Premier actively saying anything that
1231 would support proceeding with an injunction. 2 What you recall him saying was that it was 3 important to get them out more quickly than waiting 'til 4 Friday? 5 A: That's correct, yes. 6 Q: And this is a conversation that's 7 taking place on Wednesday afternoon? 8 A: Yes. 9 Q: So the Premier was not happy with a 10 solution that would involve going to Court on Friday? 11 A: That'd appear to be the case, yes. 12 13 (BRIEF PAUSE) 14 15 Q: And in terms of the meeting itself, 16 the meeting with the Premier, just a quick point. Mr. -- 17 sorry, Inspector Fox, as he then was, told us that at the 18 meeting the person who best supported the position of the 19 OPP was Mr. Taman. 20 Is that your recollection as well? 21 A: Yes, he was very supportive. 22 Q: All right. And just to parse that 23 out, he was trying to educate the Premier about 24 injunctions and -- and -- and trying to advocate the 25 traditional approach; is that correct?
1241 A: Yes, sir. 2 Q: And also, when the discussion started 3 to become very improper or upsetting for you and Mr. Fox - 4 - and Inspector Fox with Deb -- with Minister Hodgson, it 5 was Mr. Taman who intervened to try and redirect the 6 conversation; is that correct? 7 A: Yes, sir. 8 Q: And then ultimately it was Mr. Taman 9 who suggested you should just leave? 10 A: That's correct, yes. 11 Q: All right. Mr. Falconer referred to 12 the conversations and I'm just going to use a short form 13 for this. 14 But clearly, as you've already said, the 15 discussions in the Premier's office were discussions that 16 you found to be inappropriate and upsetting, correct? 17 A: Yes, sir. 18 Q: All right. Now, I'm just going to 19 give that the label of improper communications and you'll 20 recall that Mr. Falconer suggested to you that these 21 improper communications could happen in a number of 22 different ways. 23 They could happen deliberately, they could 24 happen inadvertently or they could happen just as a result 25 of the -- the structure of communication, the way in which
1251 communications are structured. 2 Do you remember that? 3 A: I do. 4 Q: I think he divided it into two (2), 5 but I'm going to divide it into three (3): The 6 deliberately, the accidentally, and the structure. 7 So let's just deal with accidentally first. 8 Improper communications can take place accidentally, for 9 example, someone bumps into someone on the street and says 10 more than they should. 11 You, from your perspective, these improper 12 communications were not accidental, correct? 13 A: Correct. 14 Q: You were specifically invited to the 15 meeting, you were introduced when you entered the meeting? 16 A: Yes. 17 Q: Inspector Fox made his report and then 18 Premier Harris added some comments and then -- and the 19 meeting continued. That was clearly -- someone had 20 decided that you should be at that meeting and have those 21 communications, correct? 22 A: Yes, sir. 23 Q: All right. And also, when Premier 24 Harris left the room, his comments indicated that he 25 expected and encouraged that there would be further
1261 discussions between Inspector Fox and yourself and the 2 Minsters to determine how the matter should be addressed; 3 is that -- is that your understanding? 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Downard...? 6 MR. PETER DOWNARD: That wasn't the 7 evidence at all. 8 MR. WILLIAM HORTON: Well, I thought -- 9 MR. PETER DOWNARD: The evidence of -- 10 I'll leave you to your discussions and I trust you'll come 11 to the right conclusions. 12 MR. WILLIAM HORTON: Yeah, that's right, 13 that's exactly right. 14 COMMISSIONER SIDNEY LINDEN: Are you both 15 saying the same thing or not. 16 MR. WILLIAM HORTON: Are we not both 17 saying the same thing? 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MR. WILLIAM HORTON: I think we're 20 agreeing in a disagreeable way. I think that's what's 21 happening. 22 MR. PETER DOWNARD: Well, no, the Witness 23 didn't say that the Premier said, I'll -- I'll leave you 24 to continue to -- to talk to Inspector Fox and -- and 25 Inspector Patrick and so on. I mean it's --
1271 MR. WILLIAM HORTON: Well -- 2 MR. PETER DOWNARD: -- not a fair 3 characterization. 4 MR. WILLIAM HORTON: -- I think it is a 5 fair characterization, but I'll try it again. 6 7 CONTINUED BY MR. WILLIAM HORTON: 8 Q: From what Mr. -- from what Premier 9 Harris said to you and the rest of the people in the room 10 when he left, you took it that he expected the discussions 11 the continue -- 12 A: Yes. 13 Q: -- after he left? 14 A: Yes, sir. 15 Q: Correct? And that you expected that 16 the discussion -- and -- and you took it that he 17 understood that the discussions would continue between you 18 and the ministers who were present, correct? 19 A: Yes. 20 Q: And you took it that he understood and 21 encouraged you to continue to have those discussions to 22 try and reach an appropriate resolution, correct? 23 A: He appeared to, yes. 24 Q: Right. So he was anticipating that 25 the discussion would continue and towards -- towards the
1281 purpose of coming to a resolution. 2 Isn't -- isn't that what you understood? 3 COMMISSIONER SIDNEY LINDEN: Well, Mr. 4 Downard's objecting. 5 MR. PETER DOWNARD: Well, I -- I think 6 it's a mind reading problem. My -- My Friend is -- is 7 suggesting by -- by casting in terms of this Witness' 8 impression or interpretation or -- or further thoughts 9 upon what was actually said what was in the mind of the 10 Premier. 11 And we've had this objection many times and 12 that's exactly what's going on. My -- My Friend is 13 seeking to -- to elevate the evidence -- 14 MR. WILLIAM HORTON: Hmm hmm. 15 MR. PETER DOWNARD: -- in an inappropriate 16 way because this Witness can't say what was in the mind of 17 the Premier. 18 MR. WILLIAM HORTON: No, and I didn't ask 19 that. It's -- it's a -- what we're engaged in here is an 20 exercise in distraction -- 21 MR. PETER DOWNARD: No, no. 22 MR. WILLIAM HORTON: -- because -- 23 COMMISSIONER SIDNEY LINDEN: No. 24 MR. WILLIAM HORTON: Well, let me finish 25 my submissions.
1291 COMMISSIONER SIDNEY LINDEN: Just a 2 minute. MR. WILLIAM HORTON: Let me finish my 3 submissions, Commissioner. 4 COMMISSIONER SIDNEY LINDEN: All right. 5 You finish your submission, Mr. Horton -- 6 MR. WILLIAM HORTON: This is -- 7 COMMISSIONER SIDNEY LINDEN: -- but try to 8 keep the personal comments out of the objections. 9 MR. WILLIAM HORTON: -- becoming very 10 interactive. The quality of the communication, the -- the 11 way in which it's made is very important. The -- the 12 context in which it's made is very important and what was 13 taken by the -- the listeners is very important, 14 especially when we're talking about political direction 15 given to the police. 16 And what I'm trying to establish with this 17 Witness is that he understood what the Premier said to be 18 an -- an invitation and an expectation that discussions 19 would continue after the Premier left the room between 20 members, senior members of the OPP, and members of the 21 Cabinet with a view to discussing a resolution of the 22 problem. 23 COMMISSIONER SIDNEY LINDEN: Oh -- 24 MR. WILLIAM HORTON: Isn't that -- and the 25 fact that he understood that if he did is very important.
1301 COMMISSIONER SIDNEY LINDEN: All right. 2 Do you want to stop there? 3 MR. WILLIAM HORTON: Yes, sir. 4 COMMISSIONER SIDNEY LINDEN: Do you have 5 an objection to that question, Mr. Downard? 6 MR. PETER DOWNARD: As long as we're clear 7 we're talking solely about this Witness' understanding. 8 There's a fine line -- 9 COMMISSIONER SIDNEY LINDEN: Right. 10 MR. PETER DOWNARD: -- and I'm not doing 11 this to distract My Friend -- 12 COMMISSIONER SIDNEY LINDEN: No, there's-- 13 MR. PETER DOWNARD: -- I simply want My 14 Client to be dealt with fairly in this matter. 15 COMMISSIONER SIDNEY LINDEN: Yes, yes. We 16 all do, Mr. Downard. 17 MR. WILLIAM HORTON: Commissioner, these - 18 - these objections are not proper. 19 COMMISSIONER SIDNEY LINDEN: All right. 20 MR. WILLIAM HORTON: We're always talking 21 about the Witness' understanding. 22 COMMISSIONER SIDNEY LINDEN: We are. 23 MR. WILLIAM HORTON: That's always what 24 we're talking about. 25 COMMISSIONER SIDNEY LINDEN: Yes, and
1311 we're always trying to be fair, too. 2 MR. WILLIAM HORTON: And we're always 3 trying to be fair. 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 MR. WILLIAM HORTON: And we are always 6 talking about this witness' understanding. 7 COMMISSIONER SIDNEY LINDEN: All right. 8 Let's confine ourselves to this witness' understanding. 9 MR. WILLIAM HORTON: And I believe, if you 10 read the record, Commissioner, that that is what I 11 confined myself to. So it's -- every question is not an 12 opportunity for -- for argument. 13 14 CONTINUED BY MR. WILLIAM HORTON: 15 Q: Is it not the case, Inspector Patrick, 16 that when you heard the Premier spoke those words, you 17 understood that the Premier was expecting that there would 18 be those further discussions and encouraging those further 19 discussions towards reaching some kind of resolution? 20 A: Clearly, yes. 21 Q: And you did not have the impression 22 that this was something that happened accidentally or 23 inadvertently; that these communications were taking place 24 accidentally or inadvertently, is that fair? 25 A: When you say "these communications,"
1321 that specific communication? 2 Q: I'm talking about the whole meeting to 3 which you were invited. 4 A: I didn't give it much thought at the 5 time. 6 Q: But that was -- it -- it was a meeting 7 that you were specifically invited to? 8 A: Yes. 9 Q: And turning then to the point of 10 whether or not the communications occurred as a result of 11 the structure of how these communications were structured. 12 This was not within the normal structure of 13 how those communications were to take place; isn't that 14 correct? The meeting in the Premier's office? 15 A: In terms of Superintendent Fox's and 16 mine attendance? 17 Q: Yes, yes. 18 A: Correct. 19 Q: It was completely outside the normal 20 structure which involved the use of the IMC for those 21 delicate communications; isn't that correct? 22 A: Yes. But can I qualify that? 23 Q: Sure. 24 A: In terms of interaction between the 25 deputy ministers and their ministers and the Premier, I
1331 have less concern with that. I came to know that that was 2 a proper interaction. 3 Q: Oh yes. No, no and I'm glad -- I'm 4 glad you clarified that because that's not what I'm 5 talking about either. 6 A: Okay. 7 Q: I'm talking about the communications 8 that are taking place with senior officers of the OPP with 9 the view towards determining what action would be taken. 10 A: Correct. 11 Q: That was not within the normal 12 structure? 13 A: It wasn't, no. 14 Q: So that these communications which you 15 found so inappropriate and upsetting from your perspective 16 it was clear that they -- there was a deliberate intention 17 to communicate those things to you. 18 A: It had that affect. We were there, we 19 shouldn't have been. 20 Q: Thank you very much. Those are my 21 questions. 22 A: Thank you, sir. 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 Thank you, Mr. Horton. 25 Ms. Tuck-JacKson...?
1341 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: You hadn't 4 made any estimate, obviously, regarding your expected 5 length of time. Can you do that now? 6 MS. ANDREA TUCK-JACKSON: Yes, Mr. 7 Commissioner. I anticipate [excuse me] I'll be fifteen 8 (15) to twenty (20) minutes. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 11 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 12 Q: Good morning, Inspector Patrick. 13 A: Good morning ma'am. 14 Q: Mr. Commissioner, if I could begin 15 just with a housekeeping matter. My Friend Ms. Esmonde 16 asked that Inspector Patrick's notes for September the 8th 17 be made an exhibit. There was some further notes 18 referable to a meeting on September the 11th, sir, that 19 also were produced to Inspector Patrick on Friday last for 20 the first time. 21 I think, frankly, out of an abundance of 22 caution to complete the record, I'm going to ask that they 23 also be made an exhibit. 24 COMMISSIONER SIDNEY LINDEN: Which will be 25 767?
1351 THE REGISTRAR: P-767, Your Honour. 2 3 --- EXHIBIT NO. P-767: Hand written notes of Mr. 4 Scott Patrick, September 5 11/'95. 6 7 MS. ANDREA TUCK-JACKSON: Thank you very 8 much. 9 10 CONTINUED BY MS. ANDREA TUCK-JACKSON: 11 Q: Inspector, you have been asked at 12 length about the contributions that then Inspector Fox 13 made at the Interministerial Committee for which you were 14 present -- meeting of which you were present on September 15 the 6th. 16 I simply want to sum it up, if I can, as to 17 his contribution and I'm going to suggest to you, sir, 18 that there were three (3) points that then Inspector Fox 19 was endeavouring to make perfectly clear at that meeting. 20 And first of all I'm going to suggest to 21 you that he was advocating a slow and measured approach to 22 the problem of the occupation. 23 A: Yes. 24 Q: Secondly, sir, I'm to suggest that he 25 was advocating an approach that involved negotiation to
1361 diffuse the tension and maintaining an open dialogue with 2 the occupiers. 3 A: Yes, ma'am 4 Q: And thirdly, sir, I'm going to suggest 5 that apart from dealing with a specific incident that 6 might attract appropriate intervention under the Criminal 7 Code, he was making it clear to the Committee that the 8 police were not going to move on the occupiers on the 9 absence of an injunction. 10 A: Correct. 11 Q: I'm also going to suggest to you, sir, 12 that from your observations during the course of that 13 meeting, nothing by then-Inspector Fox's words or actions 14 suggested that he was seeking direction from that 15 Committee on police operational matters. 16 A: That's correct. 17 Q: And further I'm going to suggest that 18 there was nothing by his words or his actions to suggest 19 that he was taking direction from that Committee on police 20 operational matters? 21 A: That's correct. 22 Q: We then hear that not long after that 23 IMC meeting the two (2) of you proceed to the meeting that 24 takes place in the Premier's dining room or some anteroom 25 at Queen's Park.
1371 A: Anteroom is how I've described it, 2 yes. 3 Q: Anteroom, fair enough. And I'm going 4 to suggest to you that during that meeting, which again 5 was comparatively shorter than the meeting that had 6 transpired that morning, at the meeting at which the 7 Premier was present, would you agree that there was 8 nothing by Inspector Fox's words or actions that suggested 9 that he was taking or seeking direction from the Premier? 10 A: I agree. 11 Q: And further, would you agree that 12 again there is nothing to suggest by his words or his 13 actions that he was seeking or taking direction from 14 Minister Hodgson? 15 A: I agree. 16 Q: And nobody -- from nobody else at that 17 meeting, either? 18 A: Correct. 19 Q: You've' told us a little bit about 20 your events and activities that followed the meeting with 21 the Premier. What's not clear to me, and I don't think 22 isn't clear to -- to all of us, when was the last time 23 that you had communication with Inspector Fox that day? 24 A: I -- I'm not sure I can answer that 25 with any precision. I know that I was in the office for
1381 the afternoon but I had to leave a little earlier that day 2 because I had child care responsibilities back in Orillia. 3 It was some time later in the afternoon was 4 the last time I spoke to him. 5 Q: Some time later in the afternoon. 6 Fair to say that it would have been past 3:00 p.m. 7 A: It was. 8 Q: All right. We've heard evidence of a 9 phone call that involved Inspector Fox, Inspector Carson 10 as he then was, and Chief Superintendent Coles. 11 And that call, we know, occurred at 14:00 12 hours and lasted for some time, but concluded prior to 13 15:00 hours that day. 14 By the time that you left the office, by 15 the time you had your last communication with Inspector 16 Fox, was it your impression that up in Ipperwash, the 17 police were going to stay the course, contain the 18 situation and wait for the injunction to application 19 process to unfold the following day? 20 A: Yes. 21 Q: Would you agree with me, sir, that you 22 had no indication whatsoever, following the phone call 23 that Inspector Fox had with Chris Coles and John Carson, 24 you had no indication after that that there was going to 25 be any change in that plan of course?
1391 A: No, no indication. 2 3 (BRIEF PAUSE) 4 5 Q: My Friend, Mr. Falconer asked you to 6 comment on the appropriateness or the propriety of Ron Fox 7 contacting John Carson by telephone after the infamous 8 meeting with the Premier and conveying certain information 9 to him. 10 And I want to ask you some questions about 11 -- about that area and I want to make sure that your 12 answers are put in the proper context that I think they 13 deserve. 14 And I want to begin, if I may, by referring 15 you to some evidence, an exchange of question and answers 16 between My Friend Mr. Falconer and Superintendent Fox, and 17 for the benefit of you, Mr. Commissioner, and My Friends, 18 that exchange occurred on July the 14th of this year and 19 it appears at page 99 of the transcript. 20 And I'm going to read you a brief passage 21 if I may. 22 COMMISSIONER SIDNEY LINDEN: Just before 23 you do. 24 Yes Mr. Falconer...? 25 MR. JULIAN FALCONER: No, I'm waiting for
1401 My Friend will finish the question, rather than -- 2 COMMISSIONER SIDNEY LINDEN: You are 3 waiting for her to finish the question? 4 MR. JULIAN FALCONER: Yes. Before I 5 object. 6 MS. ANDREA TUCK-JACKSON: Well my next 7 step, sir, is I was going to read the passage to you. 8 MR. JULIAN FALCONER: I know that. And 9 that's why I am waiting now. 10 COMMISSIONER SIDNEY LINDEN: Go ahead. 11 12 CONTINUED BY MS. ANDREA TUCK-JACKSON: 13 "Q: Now you're a man of many years of 14 experience so I take it the experience 15 of walking in to a Premier and his 16 Cabinet and having the Premier express 17 this opinion to you was a source of 18 surprise. 19 A: Yes. 20 Q: And as a result, one of the things, 21 not surprisingly, you did, was to call, 22 to call superiors at the OPP and express 23 your concerns about the Premier's 24 comments [or excuse me] comment, 25 correct?
1411 A: At the time I spoke with Inspector 2 Carson, who would be my -- my 3 counterpart and colleague. I did at a 4 later time, yes, speak with Chief 5 Superintendent Coles, who would have 6 been my superior. 7 Q: And at that time you expressed your 8 concern over the actions of the Premier, 9 correct? 10 A: Yes, my concern and frustration. 11 Q: And your frustration was borne of 12 the notion that the Premier would appear 13 to be expressing opinions on operational 14 matters? 15 A: Correct. 16 Q: An area for which he had no 17 expertise? 18 A: To the best of my knowledge, he 19 wouldn't have." 20 And I'm also, sir, going to take you to 21 another brief passage at page 142, which reads as follows: 22 "Q: I apologize if poorly framed. 23 Generally the only time you don't follow 24 is when I get it wrong, so it's a good - 25 - a good barometer.
1421 This was [he's referring to the phone 2 call] you called and talked to Carson. 3 He is a colleague? 4 A: Correct. 5 Q: You vented with your colleague? 6 A: That's correct." 7 Now I can move further along with my 8 question. 9 COMMISSIONER SIDNEY LINDEN: Well you have 10 not asked a question yet. 11 MS. ANDREA TUCK-JACKSON: I am about to. 12 COMMISSIONER SIDNEY LINDEN: Well, Mr. 13 Falconer is standing at the ready. Ask your question. 14 15 CONTINUED BY MS. ANDREA TUCK-JACKSON: 16 Q: Knowing, sir -- and I want you to 17 assume something is correct when I ask this question, 18 knowing that it was then Inspector Fox's intention, or 19 assuming, excuse me, assuming it was Inspector Fox's 20 intention that he was simply venting in his phone call to 21 a colleague, and expressing frustration over comments that 22 he had heard emanating from the Premier, I'm going to 23 suggest to you that there wouldn't be anything 24 inappropriate in that kind of a phone call. 25 OBJ MR. JULIAN FALCONER: Object.
1431 COMMISSIONER SIDNEY LINDEN: All right. 2 That is the question. 3 Yes, Mr. Falconer, objection? 4 MR. JULIAN FALCONER: My objection stemmed 5 from the preamble to the question, but out of courtesy I 6 thought I ought to let My Friend finish her rather-lengthy 7 question. 8 And the preamble said Mr. Falconer put it 9 to you that, or asked for you to comment on the 10 impropriety or improper communication by Mr. Fox to Mr. 11 Carson, et cetera. I did not use the term improper, 12 impropriety. I said it was regrettable or unfortunate 13 that the contents of the Premier's comments and others' 14 comments at the IMC Meeting were communicated to Incident 15 Command. 16 That's how I stated it: It was unfortunate 17 or regrettable. 18 I didn't accuse Fox of impropriety, I put 19 on the record already the difficulty that he is in as a 20 Liaison Officer, he's supposed to liaise, then he's told 21 not to liaise. 22 COMMISSIONER SIDNEY LINDEN: I do not 23 want -- 24 MR. JULIAN FALCONER: So I -- I don't 25 think it's fair for My Friend to have cast this in this
1441 fashion -- 2 COMMISSIONER SIDNEY LINDEN: All right. 3 MR. JULIAN FALCONER: -- because it's a 4 straw man, she sets it up that I've alleged impropriety 5 and then he asks him to knock it back down. 6 COMMISSIONER SIDNEY LINDEN: Well, that's 7 fine. 8 Do you have the exact transcript? I don't 9 recall the exact wording. I seem to recall the word 10 impropriety used somewhere but I don't remember if it was 11 in the context of Mr. Falconer's questions. If we are -- 12 MS. ANDREA TUCK-JACKSON: Everyone's 13 indulgence. 14 15 (BRIEF PAUSE) 16 17 COMMISSIONER SIDNEY LINDEN: I recall he 18 used words like unfortunate and regrettable, so I don't 19 have an exact recollection. 20 MS. ANDREA TUCK-JACKSON: I'm referring to 21 page 222 of yesterday's transcript, beginning at line 2. 22 MR. JULIAN FALCONER: Can I look over My 23 Friend's shoulder? 24 MS. ANDREA TUCK-JACKSON: Of course. 25 "Q: And you'd agree with me for the
1451 very reasons you said Commissioner 2 O'Grady ought not to have been at that 3 meeting, it stood even doubly that 4 Incident Commander Carson shouldn't have 5 been told of the Premier's views at that 6 meeting, correct? 7 A: That's a difficult question. I 8 knew that then-Inspector Carson and 9 Inspector Fox were colleagues. They 10 were commissioned officers. There was 11 information being exchanged. It was -- 12 it was likely not helpful, no." 13 MR. JULIAN FALCONER: And -- 14 COMMISSIONER SIDNEY LINDEN: There's no 15 use of the word, improper -- 16 MR. JULIAN FALCONER: And My Friend left 17 out the next question and answer you should hear, Mr. 18 Commissioner. 19 MS. ANDREA TUCK-JACKSON: "Q: And to be 20 fair a liaison is supposed to be a 21 clearing house for information, correct? 22 A: Yes, sir." 23 MR. JULIAN FALCONER: So far from my 24 alleging impropriety against Superintendent Fox I did 25 exactly what I just finished telling you I did and the
1461 Witness shouldn't be told that I did something other than 2 that. 3 MS. ANDREA TUCK-JACKSON: Then in 4 fairness, if I overstated the criticism that My Friend 5 articulated yesterday, I apologize. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Well, if he 10 used the words, you've got the transcript there and now 11 the Witness knows what was said and perhaps he can answer 12 the question in the context of what was, in fact, said. 13 MS. ANDREA TUCK-JACKSON: Thank you. 14 COMMISSIONER SIDNEY LINDEN: Now, let's -- 15 MS. ANDREA TUCK-JACKSON: Thank you very 16 much. 17 COMMISSIONER SIDNEY LINDEN: Can you 18 answer the question or do we have to somehow rephrase it 19 for you or put it -- 20 THE WITNESS: I prefer it to be rephrased, 21 Your Honour, if that's okay. 22 MS. ANDREA TUCK-JACKSON: All right. 23 COMMISSIONER SIDNEY LINDEN: I'll leave 24 that up to you. 25 MS. ANDREA TUCK-JACKSON: Thank you, Mr.
1471 Commissioner. 2 3 CONTINUED BY MS. ANDREA TUCK-JACKSON: 4 Q: I -- I'm interested in explaining your 5 comment yesterday and pursuing your comment yesterday or 6 your observation yesterday that it would not have been 7 helpful for some of the information, as I read it out in 8 the transcript excerpt, to have been conveyed, all right? 9 A: Yes. 10 Q: And first of all, what I'm asking you 11 to assume is that if it was Inspector Fox's intent at the 12 time to simply be venting with a colleague, would you have 13 found that in any way problematic? 14 A: No. No. 15 Q: Okay. And if, sir, if you knew that, 16 during the course of this conversation between then 17 Inspector Fox and Inspector Carson, there was no attempt 18 on the part of Inspector Fox to be seen to be endorsing 19 anything that the Premier said or implicitly adopting the 20 position, would there be anything unhelpful or problematic 21 in that context of the conversation? 22 A: No, there wouldn't be. 23 Q: No. And would there be anything 24 unhelpful about the conversation occurring if we can 25 assume that Inspector Fox made it clear to Inspector
1481 Carson that he disagrees with the views of the Premier, as 2 expressed? 3 A: No, and -- 4 OBJ MR. JULIAN FALCONER: I object, Mr. -- Mr. 5 Commissioner. 6 My Friend has agreed on behalf of the OPP 7 to try to say that this is a good thing, this kind of 8 information flow, and that seems to be where the re-exam's 9 going now, that, in fact, it's okay that Fox called Carson 10 and said these things; that's the OPP's position, they're 11 allowed to take that position in re-exam. 12 But, in taking that position My Friend 13 ought to be fair to the evidence because she's summarizing 14 evidence to a witness now. She has not told the Witness 15 about the evidence of Carson, that he thinks it was 16 unfortunate that he got this information, that that kind 17 of flow between him and Fox probably isn't a good idea, 18 that it's regrettable and that it's equally regrettable 19 that he passed it on to his line officers. 20 So if -- if the OPP's now going to say that 21 it was okay and use evidence from Fox, she should complete 22 the record and use the evidence from the other half of the 23 conversation that said, specifically, he didn't think this 24 was a good idea. Obviously it confuses all of us because 25 John Carson's the Deputy Commissioner of the OPP at this
1491 point in time. 2 But if that's where My Friend is going 3 she's got to be fair in summarizing the evidence and the 4 evidence to-date, from the two (2) participants in the 5 conversation, doesn't go the way she's putting it. 6 COMMISSIONER SIDNEY LINDEN: Well, so far 7 you've said that it wasn't unhelpful. 8 Is that the way you put it or...? 9 MS. ANDREA TUCK-JACKSON: It wasn't 10 problematic -- 11 COMMISSIONER SIDNEY LINDEN: It wasn't 12 problematic. 13 MS. ANDREA TUCK-JACKSON: -- from this 14 Witness' perspective. I'm simply dealing with the -- the 15 modified opinion that was extracted from this Witness 16 yesterday and I simply want that opinion put in its proper 17 context, that's all. 18 COMMISSIONER SIDNEY LINDEN: Well, if 19 you're going to put it in it's proper context you have to 20 put it in it's proper context, and I'm not sure how far or 21 how much context we need to get it properly, but the point 22 that Mr. Falconer makes is valid. 23 MS. ANDREA TUCK-JACKSON: No, no. I -- I 24 understand that. Let me ask one (1) further question if I 25 may, sir, and -- and we'll close off the area.
1501 CONTINUED BY MS. ANDREA TUCK-JACKSON: 2 Q: You were asked quite fairly by My 3 Friend Mr. Falconer yesterday to comment on Inspector 4 Fox's judgement and his exercise of judgement. And you 5 were very complimentary in that regard. 6 Would it be fair Inspector to say, knowing 7 everything that you do about Inspector Fox in the way he 8 engages in his duties and his exercise of judgment, is it 9 fair that as far as you're concerned, he would not have 10 initiated a phone call if he had thought there was any 11 risk that information he was going to impart would 12 inappropriately influence the officers on the ground? 13 COMMISSIONER SIDNEY LINDEN: That's a 14 pretty hard question for him to answer. I don't think he 15 can answer it. 16 MR. DERRY MILLAR: Yeah, I don't think... 17 COMMISSIONER SIDNEY LINDEN: Mr. 18 Millar...? 19 MR. DERRY MILLAR: I don't think the 20 Witness can answer that question. 21 COMMISSIONER SIDNEY LINDEN: Neither do I, 22 right. 23 MS. ANDREA TUCK-JACKSON: I'll move on, 24 Mr. Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
1511 2 CONTINUED BY MS. ANDREA TUCK-JACKSON: 3 Q: You were asked some questions 4 yesterday about your state of mind when you were preparing 5 the answers to undertakings that were generated in the 6 Fall of 2003. 7 A: Correct. 8 Q: When you were turning your mind to 9 that, did you have the benefit of the handwritten notes 10 that you had generated in September of 1995? 11 A: No, I didn't. 12 Q: Did you have the benefit of a copy of 13 the notes that were captured by Inspector Connolly in May 14 of 1997? 15 Did you have the benefit of those at hand? 16 A: No. 17 Q: And finally, did you have the benefit 18 of either a transcript of the phone calls that capture -- 19 the telephone call, excuse me, that captures the exchange 20 between Inspector Carson and Inspector Fox of September 21 the 6th, 1995? 22 A: No. 23 Q: And I gather so you also didn't even 24 have the benefit of actually having listened to that tape 25 at that point?
1521 A: That's -- that's correct. 2 Q: So, when you gave your answers to 3 undertakings, you didn't have the benefit of any of those 4 tools, as I may put them, that might help you refresh your 5 memory at the time? 6 A: Correct. 7 MS. ANDREA TUCK-JACKSON: Commissioner, 8 those are my questions. Thank you. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much, Ms. Tuck-Jackson. 11 Do you have any re-examination, Mr. Millar? 12 13 RE-DIRECT EXAMINATION BY MR. DERRY MILLAR: 14 Q: I just have a couple of questions. 15 But starting with respect to the answers to the 16 undertakings and the events of 2003 that you spoke to me 17 about in-chief and to Mr. Downard and Ms. Tuck-Jackson 18 just a moment ago. 19 When you gave the answers to the 20 undertakings, did you recall the meeting with Mr. 21 Connolly, that's reflected in the memorandum Exhibit P-517 22 at Tab 7 of the Book of Documents in front of you, that 23 was held on May 12th, 1997. 24 A: I don't -- I don't recall thinking 25 about it at the time I gave my response, no.
1531 Q: And be -- you met with Inspector 2 Connolly and Inspector Ron Fox on the May 12th, 1997 as 3 reflected in Exhibit P-517. Did you have an occasion 4 between May 12th, 1997 and when you answered your 5 undertakings to discuss the Ipperwash matter or to review 6 your notes that you made back in 1995? 7 A: I don't recall that I did, no. 8 Q: Thank you. And if I could take you -- 9 if you could turn up Exhibit P-517 and go to the page that 10 My Friend, Mr. Falconer took you to which was the third 11 page in. 12 A: Which -- and which tab, sorry? 13 Q: It's Tab 7, sir. 14 A: Thank you. 15 Q: And it's in Exhibit P-517, Inquiry 16 Document 2003794, it's the third page of the Document but 17 it's page 2 on the top; do you see that? 18 A: Yes, sir. 19 Q: And My Friend took you to the part, 20 September 6th, 1995, a meeting outside of Committee; do 21 you see that? 22 A: Yes, I do. 23 Q: And My Friend took you to the point 24 "not reported," and there was the discussion about 25 reports. On September 6th, 1995 was there a requirement
1541 to make a formal report of a meeting such as this? 2 A: Not that I was aware of, no. 3 Q: And the note also, in the line just 4 above that in brackets says: 5 "Ron and Scott and Barbara, there has 6 requested (just before shooting incident 7 about 17:00)." 8 Do you know what -- can you tell us what 9 the 10 reference to 17:00 is? 11 A: Yes, sir. I -- I believe that was 12 something that I had indicated. My recollection had been 13 in ensuing years that the meeting with the Premier had 14 taken place actually much later in the day. 15 Q: What -- 16 A: And -- and -- and 17:00 I believe, was 17 something I may have imparted to Inspector Connolly. 18 Q: And the meeting actually was earlier 19 in the day after the Interministerial Committee Meeting as 20 you've told us. 21 A: Yes, much earlier. 22 MR. JULIAN FALCONER: Mr. Commissioner, 23 I'm sorry, I am wasn't going to rise in respect of 24 objection, but for purposes of clarification I have to 25 because of the way Mr. Millar framed the question.
1551 He had asked the witness: 2 "Was there any requirement to formally 3 report in respect of the Dining Room 4 Meeting?" 5 And with respect, Mr. Commissioner, and 6 this goes back to the exchange between myself and My 7 Friend on this issue, and -- and you, Mr. Commissioner, 8 but with respect, the question, in fact, I don't say it's 9 advertent that he's deliberately posing it improperly, but 10 the question is problematic, because the very question on 11 the issue of formal reporting, is put to rest when 12 Connolly sets out the questions that he's to formally 13 report on to the Commissioner. 14 And if you have regard to Exhibit P-616, it 15 sets out the issue of political interference in the issue 16 of Government meetings. And there is no reference in that 17 Formal Report to this Dining Room Meeting, even though the 18 Report author was required to formally report on it. 19 So, my simple point is, is that bringing 20 out evidence that there was no requirement to formally 21 report on the Dining Room Meeting, in circumstances where 22 you have evidence in the form of P-616 and 618 from 23 Connolly, that he's asked that specific question and 24 expected to formally report on it. 25 That's the problem. It's -- it's an
1561 incomplete record and it doesn't address the very issue I 2 was getting at, which is, there was no Formal Report of 3 this meeting, even though in the end they were asked to 4 formally report on this issue. 5 MR. DERRY MILLAR: Well then it highlights 6 the problem with My Friend's question, because it 7 certainly missed me, given the fact that this witness had 8 never seen the Connolly Report that, the questions about 9 formal reporting related not to what this man did or what 10 was -- the informant but what was asked of Inspector 11 Connolly a year and a half later. 12 The question that I asked this witness 13 arises directly from the questions My Friend asked the 14 witness, and he did not take the witness to P-616, was he 15 asked questions about formal reporting, it's a simple 16 question and it's not an improper question, is My Friend 17 took him to this provision, I -- the simple question was: 18 "On September 6th, 1995 was there a 19 requirement to make a formal report with 20 respect to the meeting?" 21 And the answer was: 22 "No." 23 COMMISSIONER SIDNEY LINDEN: I think we 24 will leave it at that. 25 MR. JULIAN FALCONER: It's for your own
1571 information Mr. Commissioner, the site I'm referring to is 2 pages 127 and 128 of the Connolly Report, where the very 3 questions that he's asked to formally report on are set 4 out. 5 COMMISSIONER SIDNEY LINDEN: The date was 6 some years after. I do not remember -- 7 MR. JULIAN FALCONER: That's correct. But 8 it did require a Formal Report. 9 COMMISSIONER SIDNEY LINDEN: I understand. 10 That's fine. 11 MR. DERRY MILLAR: But that -- that deals 12 -- that's simply argument. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. DERRY MILLAR: He certainly didn't 15 make it clear when he was talking to this witness that -- 16 COMMISSIONER SIDNEY LINDEN: All right. 17 MR. DERRY MILLAR: -- really what he was 18 talking about was these pages in the Connolly Report -- 19 COMMISSIONER SIDNEY LINDEN: No, I know. 20 MR. DERRY MILLAR: -- which this witness 21 had never even seen. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 You have asked the question -- 24 MR. DERRY MILLAR: That's one of the 25 problems.
1581 COMMISSIONER SIDNEY LINDEN: You have 2 asked the question and had the answer now, so let us move 3 on. 4 5 CONTINUED BY MR. DERRY MILLAR: 6 Q: Now another thing that you -- that's 7 referred to on page 2: 8 "An educative-type meeting." 9 Can you tell us what that refers to? 10 A: What that -- that was a comment that I 11 made. I was struck by Deputy Taman's approach to the 12 Premier in terms of how he was explaining the OPP's 13 approach and the difference between the two (2) 14 injunctions and it always struck me as he was attempting 15 to educate the Premier. 16 Q: Okay. And on September the 6th, 1995 17 when you attended the dining room meeting or anteroom 18 meeting -- 19 A: Anteroom. 20 Q: Anteroom meeting as you refer to it, 21 did you have any knowledge of any demands on the part of 22 the occupiers? 23 A: Any demands? 24 Q: Yes. 25 A: Could you -- could you ask that
1591 question again? 2 Q: Sure. On September the 6th, 1995, 3 when you attended the -- either the IMC meeting or the 4 ante room meeting with the -- where the Premier attended-- 5 A: Hmm hmm. 6 Q: -- did you have any knowledge of any 7 demands made by the occupiers of the Park? 8 A: Not demands. References to -- 9 references to the existence of a burial site and a 10 reference to, it's our Park or we own the Park or 11 something along those lines. 12 Q: You had heard it -- 13 A: But not the demand, no, I wouldn't -- 14 Q: You had heard the references to that 15 there was a burial site and that it's our Park at the 16 Interministerial Committee? 17 A: Yes. 18 Q: And at the meeting at which the 19 Premier was at, did you speak directly to the Premier? 20 A: No. 21 Q: Did you speak at all during the 22 meeting? 23 A: No. 24 Q: And did you -- you told us that you 25 were in the south-east corner, I believe you said --
1601 A: We're back to the room again. 2 Q: At the back of the room and you agreed 3 with My Friend Mr. Falconer when he said it was about 4 thirty (30) feet, I think. 5 A: Approximately. 6 Q: Approximately. 7 COMMISSIONER SIDNEY LINDEN: Twenty (20) 8 to thirty (30). 9 10 CONTINUED BY MR. DERRY MILLAR: 11 Q: Twenty (20) to thirty (30) feet, and 12 from where you -- the Premier was and where you were, did 13 you move from the back of the room at any time during the 14 course of the meeting? 15 A: Yes, we did. 16 Q: And that was when you moved up to the 17 table? 18 A: Correct. 19 Q: And that was after the Premier had 20 left? 21 A: Yes. 22 Q: And My Friend, Mr. Horton, asked you a 23 question that you had been specifically invited to attend 24 the meeting. 25 Were you specifically invited to attend
1611 the meeting? 2 A: The information that was relayed to us 3 by Deputy Todres' assistant was that we were to join her 4 at a meeting. 5 Q: You and Mr. Fox? 6 A: Yes. 7 Q: Great, thank you. Those are my 8 questions and I would like to thank you very much Mr. -- 9 Inspector Patrick, for attending and assisting the 10 Commission. 11 A: Thank you, sir. 12 COMMISSIONER SIDNEY LINDEN: I'd like to 13 thank you as well, Inspector Patrick, for giving us your 14 evidence and you've finished now. 15 THE WITNESS: Thank you, Your Honour. 16 17 (WITNESS STANDS DOWN) 18 19 COMMISSIONER SIDNEY LINDEN: And it now 20 being twelve o'clock, I think this is a good time to have 21 a lunch break and we'll start with a new witness right 22 after lunch. 23 THE REGISTRAR: This Inquiry stands 24 adjourned until 1:15. 25
1621 --- Upon recessing at 11:59 a.m. 2 --- Upon resuming at 1:18 p.m. 3 4 THE REGISTRAR: This Inquiry is now 5 resumed. Please be seated. 6 MS. SUSAN VELLA: Good afternoon. 7 COMMISSIONER SIDNEY LINDEN: Good 8 afternoon. 9 MS. SUSAN VELLA: The Commission calls as 10 its next Witness Peter Sturdy. 11 THE REGISTRAR: Good afternoon, Mr. 12 Sturdy. 13 COMMISSIONER SIDNEY LINDEN: Good 14 afternoon. 15 MR. PETER STURDY: Good afternoon. 16 THE REGISTRAR: Sir, do you prefer to 17 swear on the Bible, affirm, or use an alternate oath? 18 MR. PETER STURDY: On the Bible. 19 20 PETER HOWARD STURDY, Sworn 21 22 EXAMINATION-IN-CHIEF BY MS. SUSAN VELLA: 23 Q: Mr. Sturdy, I understand you started 24 your career with the Ministry of Natural Resources in 1974 25 and have worked in a variety of capacities since then?
1631 A: That's correct. 2 Q: From June of 1992 to April 1995 you 3 were the Zone Manager for Zone 1 Southern Region London, 4 Ontario? 5 A: That's correct. 6 Q: And was the Ipperwash and Pinery 7 Provincial Parks within your jurisdiction? 8 A: That's correct. 9 Q: And what were your primary 10 responsibilities as zone manager at that time? 11 A: My primary responsibilities were to 12 provide leadership, direction, coordination, for the day- 13 to-day management and operation of provincial parks within 14 the southwest zone. So, subject matters might include 15 everything from, sort of, financial, budget matters, 16 capital programs, introduction of new programs into the 17 parks within our zone. 18 And at that time unlike prior to 1992 19 superintendents reported directly to me at that point. 20 Prior to that time they had reported to districts and 21 district managers. 22 Q: All right. And you are currently 23 Zone Manager for the Southwestern Zone in Ontario? 24 A: That's correct. 25 Q: Now, is that primarily just a change
1641 in your designation or were there any substantive changes 2 in your responsibilities? 3 A: The change in organization was 4 essentially that rather than being ultimately responsible 5 in the period from '92 to '95 to a regional director I was 6 now reporting directly to a branch director because 7 Ontario Parks is a branch within the Ministry of Natural 8 Resources. So, I was reporting directly to a branch 9 director in Peterborough. 10 One (1) of the other substantial changes, I 11 think, that occurred was that in -- prior to 1995 12 Aboriginal issues were dealt with even though the park 13 superintendents reported directly to me, that Aboriginal 14 issues and concerns that were raised were dealt with by 15 our district offices and their staff and -- and the park 16 superintendent. 17 So, a district manager that had a 18 provincial park within his particular geographic district 19 would take the lead on that matter up until 1995. 20 Q: All right. And when you say, "in that 21 matter," that's with respect to First Nation related Park 22 issues; is that right? 23 A: That's correct, sorry. 24 Q: And you've held this position since 25 April of 1995?
1651 A: Yes. 2 Q: And is that when you assumed that -- 3 this new responsibility, if you will, with respect to 4 receiving reports from the park superintendents, 5 concerning First Nation Park-related matters? 6 A: No, I would have -- we're a fairly 7 well integrated ministry and I would have had documents 8 shared with me. The primary destination of some of those 9 documents from a parks superintendent might flow directly 10 to the district manager or one of his staff prior to 1995, 11 but generally speaking, I would have been copied on 12 information like that. 13 Q: All right. 14 A: By and large. 15 Q: All right. But now you had a direct 16 reporting responsibility is -- is upon you? 17 A: Yes. 18 Q: You -- All right. And the -- the 19 southwestern zone includes Ipperwash Provincial Park and 20 Pinery Provincial Park? 21 A: That is correct. 22 Q: Okay. 23 24 (BRIEF PAUSE) 25
1661 Q: And do you continue to have the 2 primary reporting responsibility for dealing with First 3 Nation related Park issues within your region? 4 A: In 2005? 5 Q: Yes. 6 A: Yes, yes. 7 Q: Now, as a preliminary matter, I'd like 8 you to paint a picture of the key Ministry of Natural 9 Resource personnel who were involved at the critical times 10 with the Ipperwash Park occupation and the -- the lead up 11 to it, if you will. 12 Certain names appear in documents from time 13 to time and I'll just ask you to advise with respect to 14 what position the person occupied in or around '95 and the 15 events leading to the Park occupation. And the first is 16 Les Kobayashi. 17 A: Les Kobayashi was the superintendent 18 of both -- actually he three (3) parks at that point; 19 Point Farms, Pinery and Ipperwash. 20 Q: All right. And who did he report to 21 in '95? 22 A: He reported to me. 23 Q: And who was Peter Allen? 24 A: Peter Allen was the executive 25 assistance to Deputy Minister Ron Vrancart.
1671 Q: Did you have any reporting 2 relationship with him? 3 A: Not direct. 4 Q: Norm Richards? 5 A: In '95 Norm Richards was a branch 6 director and I reported to him directly. 7 Q: And which -- which branch is that? 8 A: I'm sorry, that was -- I think at that 9 particular time we were called Parks Ontario and then it 10 switched under the new government to Ontario Parks in '96, 11 I think. 12 Q: And I guess I'm not understanding. 13 You say branch director; just give me a sense as to what - 14 - what you mean by branch? The whole Ontario region? 15 A: He was the -- the branch was Ontario 16 Parks. 17 Q: Okay. 18 A: So, yes, sorry. 19 Q: He -- 20 A: So, he was -- he was the big poobah 21 yes. 22 Q: Thank you. Patricia Malcolmson? 23 A: She was an assistant deputy minister. 24 Q: To the MNR? 25 A: Yes.
1681 Q: Dan Elliott? 2 A: He was a native liaison officer in the 3 Alymer district. 4 Q: And was -- did he have responsibility 5 in that respect with respect to Ipperwash Provincial Park 6 and Pinery Provincial Park? 7 A: Yes, he would have. 8 Q: All right. Ed Vervoort? 9 A: I'm sorry, did you mean in '95? 10 Q: Yes. 11 A: I'm sorry. Up until a period in '95 12 but his main responsibilities were prior to '95 as a 13 native liaison officer. 14 Q: Okay. 15 A: He was still there in that capacity 16 but we had to work together a bit more, because we were in 17 a transition year from that former organization, if you 18 like, where the district looked after First Nation issues. 19 Now that responsibility was being transitioned over to 20 Ontario Parks and the zone manager. 21 Q: So to you? 22 A: Yes. 23 Q: All right. Darrel Smith? 24 A: Darrel Smith was a communications 25 information officer in the Alymer district.
1691 Q: And Dan -- Dan Matheson? 2 A: Don Matheson? 3 Q: Don, excuse me. 4 A: Don Matheson was my assistant 5 superintendent, or one of the assistant superintendents at 6 Pinery and Ipperwash. 7 Q: And so he would have reported directly 8 to Mr. Kobayashi? 9 A: That's correct. 10 Q: I'd like to draw your attention, 11 briefly, to the 1989 to 1990 period. Were there any 12 initiatives undertaken by the Ministry of Natural 13 Resources in that period relating to Ipperwash Provincial 14 Park which had any First Nation involvement? 15 A: Yes, there were. 16 Q: And can you describe what the 17 initiative was? 18 A: It's my recollection that during that 19 period of time the -- again I don't want to confuse 20 things, but in 1989 parks actually reported directly to 21 district managers and the district manager, or the acting 22 district manager, in Wingham was given the responsibility 23 to prepare and start the process of preparing a management 24 plan for Ipperwash Provincial Park. 25 Q: All right. And was First Nation
1701 input sought to that plan? 2 A: Yes, it's a requirement in all our 3 planning exercises that there be a public consultation 4 component with added various phases as the plan is 5 developed. 6 So, we typically go back so the public 7 stakeholders, municipalities, clubs and organizations have 8 an opportunity to review what they may have commented on 9 in a previous version to see how those changes might have 10 been incorporated or listened to. 11 So, we had -- we had distributed that plan. 12 It was available to cottagers and -- and other groups as I 13 mentioned, and it was also made available to the Kettle 14 and Stony Point council. 15 Q: All right. Just in brief what is the 16 objective of a management plan for a provincial park? 17 A: Basically it's -- I supposed the 18 analogy might be to a small municipal plan where land is 19 looked at in terms of resource values, heritage and 20 cultural values. We overlay zoning on top of that. We 21 identify areas which may need, because of resource or 22 cultural values, may need a certain level of protection 23 and therefore facilities and things like that wouldn't be 24 built in those areas. 25 We try to identify areas that we might
1711 build campgrounds and buildings, maintenance yards and 2 things like that. So, it basically sets out, kind of, a 3 twenty (20) year vision for a piece of property, a 4 provincial park, in terms of how it will be developed, how 5 it will be managed, what kind of programs we might have 6 there. 7 Q: Hmm hmm. 8 A: That kind of thing. 9 Q: All right. I wonder if you would turn 10 to Tab 3 of your black binder. It's Inquiry Document 11 Number 1008306. 12 And in particular if you'd kindly turn to 13 the third page which is a letter dated November 15, 1989 14 to Mr. Michael George, Band Administrator, Kettle and 15 Stony Point First Nation from Les Kobayashi and you're 16 shown as having received a copy or at least you're blind 17 carbon copied on it. 18 A: Yes. 19 Q: Have you seen this document before? 20 A: Just in reviewing some of the -- some 21 of the material in -- in prep for this. I -- I'm sure it 22 probably arrived at my desk back in '89, I just don't have 23 a -- 24 Q: Thank you. I'd like to make this the 25 next exhibit, please?
1721 THE REGISTRAR: P-768, Your Honour. 2 COMMISSIONER SIDNEY LINDEN: 768. 3 4 --- EXHIBIT NO. P-768: Document Number 1008306. 5 Letter from Les Kobayashi to 6 Michael George re. Ipperwash 7 Provincial Park Management 8 Plan, November 15th '89. 9 10 CONTINUED BY MS. SUSAN VELLA: 11 Q: Now, had there in fact been 12 consultations with the band council of this First Nation 13 concerning the draft management plan in relation to 14 Ipperwash Park? 15 A: I'm sorry could you repeat that? I'm 16 -- I'm lost. 17 Q: Had your ministry been involved in 18 the discussions with the council of Stony and Kettle Point 19 band with respect to the development of the management 20 plan? 21 A: I understand that from looking at old 22 mailing lists that documents were mailed out to the 23 Council. I'm -- to be honest I don't know if, at that 24 point, there was active discussion prior to those 25 documents being mailed out.
1731 Q: All right. Perhaps I'll refer you to 2 the letter. It indicates, from Mr. Kobayashi: 3 "Thank you very much for the comments 4 you have provided regarding the 5 preliminary plan for Ipperwash 6 Provincial Park." 7 A: Hmm hmm. 8 QL Does that refresh your memory? 9 A: Well, this would have been -- this 10 would have been after the comments or after the plan had 11 been submitted to them and that we'd gotten comments back 12 from them, sorry, yes. 13 Q: Quite right, yes. 14 A: Yes. 15 Q: Okay. Thank you. And in the course 16 of those consultations did the First Nation raise any 17 concerns or draw any concerns to the attention of the 18 Ministry with respect to the Ipperwash Provincial Park? 19 A: I understood they did, yes. 20 Q: Looking at the letter then, there's 21 indication that the First Nation drew to the attention of 22 the Ministry that the Park sits on land at Stoney Point 23 that was reserved to the Indian peoples. 24 Is that something that -- that you were 25 aware of?
1741 A: Yes, I became aware of that. 2 Q: And is it fair to say that this letter 3 set out the Ministry's response to the issue raised by the 4 First Nation with respect to the land ownership? 5 A: Yes, I believe it did. 6 Q: Okay. Now was any concern raised at 7 this time, to your knowledge, with the Ministry with 8 respect to the possibility that the Park was also the site 9 of a sacred burial ground? 10 A: During this process? 11 Q: Yes and -- yes. 12 A: No. Not that I'm aware of. 13 Q: And I see as part of this exhibit, is 14 a submission, written submission by the Kettle and Stony 15 Point council under cover letter dated October 20, 1989 16 and it's entitled, "Comments on Preliminary Management 17 Plan, Ipperwash Provincial Park"; is that right? 18 A: That's correct. 19 Q: And if you go to page 4 of that 20 letter, item 3, headed Stoney Point reads -- this is 21 described as: 22 "A provincially significant earth 23 [sorry, that's] earth feature in the 24 plan, we put you on notice that Stoney 25 Point is an Indian significant feature
1751 which is the very reason that it was 2 reserved by our ancestors for our 3 exclusive use and the reason we seek its 4 return to our care and control as one of 5 our resources." 6 Now were you familiar with that position? 7 A: I became familiar with that position, 8 yes. 9 Q: And did the Ministry of Natural 10 Resource acknowledge that Stoney Point was a, "Indian 11 significant feature," within the Park? 12 A: Yes, we did. 13 Q: Are you aware as to -- let me ask you 14 this: In what way was that acknowledged by the Ministry? 15 A: It's my understanding that there were 16 some followup meetings between the District Manager and 17 Les Kobayashi and perhaps one other person with the 18 council to explore some of the items that -- that were 19 detailed in this submission. 20 And during that process, the council was 21 asked if they could describe what some of those 22 significant features were or the significance of Stoney 23 Point. And I think they undertook to talk to Elders to 24 try and get a description of what the significance was and 25 they were invited to share that with us and we would try
1761 and incorporate that into another version of the plan as 2 it entered into its final stage. 3 Q: And are you aware as to whether or not 4 the Ministry made the Stoney Point site available to First 5 Nations people to conduct ceremonies on a no fee basis? 6 A: It was general -- it was general 7 practice in the Ministry for ceremonial purposes that 8 First Nations people would have free access into 9 Provincial Parks throughout the province to take part and 10 participate in ceremonial activities. 11 Q: To your -- to your knowledge was that 12 practice implemented with respect to Ipperwash Provincial 13 Park in or around this time period? 14 A: In 1989? I have no recollection of 15 that. 16 Q: Do you know whether it was implemented 17 at some subsequent time? 18 A: I don't have a clear recollection of 19 that. 20 Q: You indicated that there were ongoing 21 discussions after this particular one and I'd like to 22 direct your attention to Tab 64 of your Brief. It's 23 Inquiry Document Number 1009916. And you'll see there's a 24 fax cover sheet that's dated September 13th, 1995 but I'm 25 interested in what was enclosed. A letter dated October
1771 20th, 1989 then the comments which you've seen already. 2 And if you keep going, the next document in 3 that package is dated March 9th, 1990. Memorandum to file 4 re. Ipperwash Park management plan, native councils. 5 The last document under that -- the tab, 6 that general inquiry document number. 7 8 (BRIEF PAUSE) 9 10 Q: And would you have received a copy of 11 this memorandum from John Osborn? 12 A: I don't believe so. 13 Q: No, not at the time? 14 A: No. 15 Q: But you did receive it in September of 16 '95? The -- the fax is addressed to you. 17 A: I'm sorry, yes, yes. 18 Q: All right. And does this accurately 19 set out the ministry's response with respect to the First 20 Nations assertion of treaty rights over the Provincial 21 Park? 22 And I'm looking at the bottom where it 23 reads: 24 "N.B. The committee made it abundantly 25 clear [this is the First Nations
1781 committee] that they want this issue of 2 treaty rights resolved before they are 3 willing to go along with the management 4 plan. 5 It was explained that the former was 6 with a non-MNR part of government, 7 whereas we wanted to complete the 8 latter, acknowledging the challenge but 9 proceeding with operations." 10 Was that, to your knowledge, the response? 11 A: That's correct. 12 Q: And on -- at page 4, reference Stoney 13 Point, I'm sorry, the second page of this document. The 14 heading is, "Page 4, Stoney Point." 15 "There was no clear understanding from 16 those present of the significance of 17 this feature. They will consult te 18 Stoney Point elders. We requested a 19 story to tell to explain to visitors the 20 cultural significance of this feature. 21 The committee wanted, 'no development,' 22 in this area and we agreed that that was 23 not -- that was not to happen, e.g. 24 leave it -- leave as is." 25 So, does this represent the ministry's
1791 commitment not to -- to not alter the Stoney Point site? 2 A: That's correct. 3 Q: Okay. I'd like to make this the next 4 exhibit, please. 5 THE REGISTRAR: P-769 Your Honour. 6 7 --- EXHIBIT NO. P-769: Document Number 1009916. Fax 8 message from Ian Seddon to 9 Peter Sturdy attaching 1. Oct. 10 10/89 letter from Michael 11 George to Pinery/Ipperwash 12 Prov. Parks, (Les Kobayashi) 13 (page 02) 2. Kettle & Stony 14 Point Council: Comments on 15 Preliminary Management Plan 16 (pages 3-7), 3. March 09/90. 17 Memo to file by John Osborn 18 re: Ipperwash Park Management 19 Plan- Native Councils(pages 20 08-10) Sept. 12/95. 21 22 CONTINUED BY MS. SUSAN VELLA: 23 Q: And once again, I note that there is 24 no -- no mention in this document with respect to any 25 assertion of a burial ground?
1801 A: No there wasn't. 2 3 (BRIEF PAUSE) 4 5 Q: I'll refer you now to Tab 4, Inquiry 6 document number 1007598. Letter dated April 12, 1990. 7 It's from John Osborn who was the acting district manager 8 of the Wingham district to Mr. Michael George Vander 9 (phonetic) administrator, Kettle and Stony Point First 10 Nation. 11 And again, does this represent further 12 dialogue with respect to the development of the park 13 management plan with the First Nation? 14 15 (BRIEF PAUSE) 16 17 Q: Did it? 18 A: Oh, sorry. 19 Q: That's all right. 20 A: Yes. 21 Q: Yes? Thank you. And this was the 22 response with respect -- at least -- is it fair to say in 23 the last paragraph an invitation is extended by the 24 ministry to the First Nations to provide some words with 25 respect to the culture, history and significance of Stoney
1811 Point in the management plan? 2 A: Yes. 3 Q: I'll make that the next exhibit, 4 please. 5 THE REGISTRAR: P-770, Your Honour. 6 7 --- EXHIBIT NO. P-770: Document Number 1007598. 8 Letter from John Osborn to 9 Michael George re: Ipperwash 10 Prov. Park Management Plan, 11 April 12/90. 12 13 CONTINUED BY MS. SUSAN VELLA: 14 Q: And to the best of your knowledge, did 15 the First Nation take the MNR up on this invitation to 16 contribute some words about the significance of cult -- of 17 Stoney Point? 18 A: I don't know, to be honest. 19 Q: Was a management plan ultimately 20 finalized? 21 A: There was a final document produced, 22 it was never actually approved. 23 Q: All right. Could you go to Tab 6, 24 please. This is Inquiry Document Number 1009919. It's 25 entitled, Ipperwash Provincial Park Management Plan.
1821 And, first of all, can you identify the 2 writing on the first page, please, dated July 10, 1992? 3 A: That's me. 4 Q: That's your writing? And you 5 addressed this to Mr. Kobayashi? 6 A: Yes. 7 Q: All right. And is this the final 8 version of the Ipperwash Provincial Park Management Plan? 9 A: Yes, it is. 10 Q: And you indicated you don't know wheth 11 -- was this actually adopted or was it left in draft? 12 A: It was -- it's still in draft form. 13 Q: It's still in draft form? 14 A: Unfortunately, yes. 15 Q: And if you would -- do you know 16 whether or not the First Nation approved this form, this 17 final form of the -- the management plan? 18 A: I understand that the council 19 accepted, in principle, this final document. 20 Q: And what is the basis of your 21 information or understanding in that respect? 22 A: That was a -- two (2) parts. There 23 was a letter from Mr. Kobayashi to the Council in '94. I 24 think he expressed an interest in making a presentation 25 and talking about this document because it had been sort
1831 of left in abeyance for a period of time. And then there 2 was a reply from the council in September. 3 I can't remember the exact date, 4 September the 13th, I believe, from Kettle and Stony Point 5 council from Ms. Thunder, the administrator, and -- 6 indicating that counsel -- and she copied the resolution 7 and accepted the management plan in principle. 8 Q: All right. And that's 1994, for 9 clarification? 10 A: 1994. 11 Q: Thank you. And if you look at page 5 12 of this exhibit. Sorry, it's not an exhibit yet, I will 13 make it one in a second, but the management plan, and 14 under -- under 5.2, "Heritage Appreciation," there is a 15 reference in the last paragraph to the -- to Stoney Point? 16 A: That's correct. 17 Q: A recognition that it has long -- been 18 long -- been considered significance by the people of the 19 Chippewa nation? 20 A: That's correct. 21 Q: And then under 5.4, "Tourism," there's 22 a reference to the Kettle and Stony Point First Nations 23 reserve being located a short distance to the west of the 24 Park and that there would be an effort -- special effort 25 made to coordinate heritage appreciation, tourism, and
1841 recreational opportunities in the Park with those provided 2 by the band council? 3 A: That's correct. 4 Q: Can we make this the next exhibit, 5 please? 6 THE REGISTRAR: P-771, Your Honour. 7 8 --- EXHIBIT NO. P-771: Document Number 1009919. 9 Ipperwash Prov. Park 10 Management Plan, July 92. 11 12 CONTINUED BY MS. SUSAN VELLA: 13 Q: Now, I understand, based on these 14 exhibits, that there were three (3) other concerns raised 15 by the First Nation in relation to the Ipperwash 16 Provincial Park. The first was with respect to fishing 17 rights on the waters adjacent to the Park, the use of the 18 beachfront and a land claim that was submitted by former 19 Chief Charles Shawkence in 1980. 20 Are you familiar with those being issues 21 that were raised in this time period? 22 A: I'm aware that they were in the 23 documentation that was submitted in '89. 24 Q: And were any of these three (3) issues 25 resolved between 1989 and 1995, to your knowledge?
1851 A: The -- the notion or the proposal that 2 the beach area that stretched from Kettle Point and was 3 shown in map form that stretched from Kettle Point to 4 Stoney Point in the preliminary plan was shown to be -- to 5 be put into regulation under the Provincial Parks Act. 6 That changed in this final document. 7 Q: How -- how did that change? 8 A: There was two (2) parts really and to 9 be honest I'm -- I'm not sure that I understand whether it 10 was because of related lands beach issue up at Grand Bend 11 at the time. 12 But the -- the proposal to regulate the 13 entire beach as part of Ipperwash Park was withdrawn and 14 we only looked at -- as I recall we only looked at some of 15 the properties directly in front of land areas that we 16 owned as -- as potentially going into regulation. 17 Q: Just for the record, the issues are 18 referred to as referred to in Exhibit P-768. Did the 19 Ministry of Natural Resources continue to have discussions 20 with the Kettle and Stony Point Band regarding the use and 21 ownership of the Ipperwash Provincial Park through 1990 to 22 early 1993, to your knowledge? 23 A: For ceremonial purposes, is that -- is 24 that what you mean? 25 Q: For various purposes.
1861 A: I'm sorry, I'm not aware of any 2 particular instances up until 1993. 3 Q: Did the Ministry of Natural Resources 4 have any discussions with the group that came to be known 5 as the Stoney Point Group, prior to 1993, with respect to 6 the use and ownership of the Park? 7 A: I'm not aware of any discussions. I'm 8 aware of certain papers being served in -- 9 Q: Prior to 1993? 10 A: No. In 1993 but not prior to, no. 11 Q: Thank you. And to your knowledge -- 12 were any claims made, to your knowledge, at least, that 13 the Park was a site to Aboriginal burial grounds in this 14 timeframe, that is 1990 up to but not including '93? 15 A: No. 16 Q: Are you familiar with a group of 17 Aboriginal peoples who came to be known as the Stoney 18 Point Group? 19 A: Yes. 20 Q: When did this Group first come to your 21 attention? 22 A: 1993, I think. 23 Q: And what were the circumstances by 24 which they came to your attention? 25 A: I became aware that a bailiff's order
1871 had been served to the Park. Some Park staff at Ipperwash 2 in the early part of 1993. 3 Q: Hmm hmm. For the record I believe 4 that's Exhibit 169. 5 Did you also receive a copy of -- of 6 documentation -- well let me just take you to it. If you 7 would go to Tab 9 please of your book. Inquiry Document 8 Number 1009459, it's Exhibit 171. 9 It's a letter dated May 19th, 1993 from 10 Stoney Point First Nation. The reference line is, 11 "Ipperwash Provincial Park co-management agreement." 12 Did this document come to your attention in 13 or around 1993? 14 A: I can't recall. 15 Q: All right. 16 A: I suspect it might of, but I certainly 17 got it later on. 18 Q: Typically, in your position as zone 19 manager, is this something that you would have expected to 20 be apprised of? 21 A: At this particular time the Park 22 superintendent would have been dealing directly with the 23 district manager and the Native liaison officer for these 24 types of issues. So his primary contact would -- would 25 have been through that office.
1881 But I think as a matter of course and a 2 matter of courtesy, I probably would have gotten a copy of 3 this. 4 Q: All right. And just for 5 clarification, the park superintendent was Les Kobayashi? 6 A: At this -- in 1993? 7 Q: Correct. 8 A: That's correct. 9 Q: All right. Now I would like to draw 10 your attention to the re line. It's Ipperwash Provincial 11 Park co-management agreement. 12 Are you familiar with the term co- 13 management agreement, as related to Provincial Parks? 14 A: In some cases, yes. 15 Q: And what does this general -- what 16 does this term generally entail from -- from the 17 Ministry's perspective? 18 A: It might entail the -- the -- an 19 arrangement whereby a First Nations group might take on 20 some part of a park operation or the operation of some 21 facility as a partnership arrangement, basically. 22 Q: All right. And, as of 1993, were 23 there any existing precedents for such co-management 24 agreements in Ontario? 25 A: As of when?
1891 Q: 1993. 2 3 (BRIEF PAUSE) 4 5 A: I'm sorry, I can't answer that 6 question. I -- 7 Q: All right. 8 A: -- may have been... 9 10 (BRIEF PAUSE) 11 12 Q: To your knowledge, are you familiar 13 with the Serpent Mounds situation? 14 A: Yes. 15 Q: Was that an example of a co-management 16 agreement? 17 A: My understanding of Serpent Mounds was 18 that it was a lease arrangement, actually, not a co- 19 management agreement but... 20 Q: Okay. And is co-management agreement 21 specific to First Nation partnership with the ministry? 22 A: In that time era it was often -- that 23 phrase was often used to signify a working relationship 24 and a partnership with First Nations co-management, yes. 25 Q: All right.
1901 A: Generally if we were having other 2 arrangements with the private sector, if you like, we'd 3 call them service contracts or service agreements or 4 something like that. 5 Q: All right. Now this letter refers to 6 a meeting which reportedly occurred on March the 9th, 7 1993. Sorry, not March the 9th, excuse me, May 19th, 8 1993, an informal meeting on the first page? 9 A: Yes. 10 Q: And were you apprised of that meeting? 11 A: I don't have a specific recollection 12 but... 13 Q: All right. I notice above there's a 14 reference to March 9th, 1993 notice to vacate that was 15 served by this First Nation on the Honourable Howard 16 Hampton. 17 Were you aware of that? 18 A: I can't say for certainty, but 19 probably. 20 Q: All right. That's Exhibit P-214 for 21 the record. You have indicated that you were aware of the 22 bailiff's notice referred to, however, in the third 23 paragraph? 24 A: That's correct. 25 Q: All right. As far as you knew, were
1911 any agreements reached with respect to a co-management 2 agreement as between Stoney Point and the Ministry of 3 Natural Resources over Ipperwash Provincial Park in May of 4 '93? 5 6 (BRIEF PAUSE) 7 8 A: It's my understanding that a letter 9 was transmitted from Mr. Kobayashi to Mr. Maynard T. 10 George and Chief Carl George, I believe it was, whereby he 11 gave permission under the Parks Act to bring in a 12 structure and locate a structure inside Ipperwash for a 13 period of time for the dissemination of information and 14 things of that nature. 15 Q: All right. And that would appear to 16 coincide with the first principle which was offered by the 17 First Nation in relation to this proposed agreement? 18 A: That's correct. 19 Q: The second principle was an equitable 20 division of the two hundred and sixty-six (266) campground 21 sites for 50/50 entitlement, utilizing regular Ipperwash 22 documentation for the 1993 season. 23 Now, to your knowledge, was such a division 24 allotted by the Ministry of Natural Resources to the First 25 Nations?
1921 A: No, it was not. 2 Q: The third principle was the use of 3 defined areas for historical plaques, commemorating the 4 uprooted families and veterans who died while waiting to 5 return home. 6 Was that -- was that granted by the 7 ministry? 8 A: No, it was not. 9 Q: And the fourth principle suggested was 10 a ceremony on Remembrance Day in the right of the living 11 veterans and landowners at Stoney Point with MNR officials 12 and other veterans. 13 Was that principle accepted? 14 A: I don't believe so. 15 Q: The next paragraph indicates that in 16 the event that these principles were accepted, the Stoney 17 Point First Nation would withhold members from their First 18 Nations structure from immediate takeover and occupation 19 of the Park. 20 Were you aware of that position? 21 A: Yes, as I read it, yes. 22 Q: All right. Well, as you read it does 23 that refresh your memory? 24 A: I can't say that I recall it 25 specifically from 1993.
1931 Q: All right. And I note also further 2 down the page it reads: 3 "Some of the lands within Ipperwash Park 4 are sacred burial grounds. These areas 5 must be recorded and documented by our 6 First Nations structure." 7 Now, is this the first indication which you 8 had of the possible existence of sacred burial grounds 9 within the Park? 10 A: That's correct. 11 Q: And was anything done by the Ministry 12 at this time to research or investigate the merits of that 13 claim with respect to burial grounds? 14 A: I'm not sure that I can speak directly 15 to that because I'm not sure where all of the original 16 documents that had gone from Les into our district office 17 in Aylmer might have been forwarded, but I don't -- I 18 don't recall that there was any action taken specifically, 19 but others may have other information. 20 Q: All right. I'm just asking for your - 21 - your knowledge. 22 A: Okay. 23 Q: So to your knowledge was anything 24 done? 25 A: To me, no.
1941 Q: All right. Thank you. I'd like to 2 turn your attention next to Tab 61 of your brief. It's 3 Inquiry Document Number 1009062. It's a fax cover sheet 4 to yourself and Peter Allen dated September 11, 1995. 5 COMMISSIONER SIDNEY LINDEN: I'm sorry, 6 what tab number was that? 7 MS. SUSAN VELLA: This is at Tab 61. 8 COMMISSIONER SIDNEY LINDEN: 61, okay. 9 10 CONTINUED BY MS. SUSAN VELLA: 11 Q: And it's dated September 11, 1995 and 12 behind it is a document dated May 21, 1993 from -- it 13 appears to be from Mr. Kobayashi and it reads: 14 "Dear Visitor to Ipperwash Provincial 15 Park." 16 This appears to be a notice that was 17 prepared by the Ministry with respect to raising awareness 18 of the -- the cultural heritage of the park; that is the 19 aboriginal cultural heritage. 20 Is this something that you were familiar 21 with? 22 A: Vaguely. 23 Q: To you knowledge was this letter 24 distributed in or around May 21/93 to visitors to 25 Ipperwash Provincial Park?
1951 A: That's correct. 2 Q: And was this in relation to the 3 ongoing discussions with the First Nation with respect to 4 the use of the Park? 5 A: That's correct. 6 Q: I'd like to make that the next 7 exhibit, please, this -- this letter? 8 THE REGISTRAR: P-772, Your Honour. 9 10 --- EXHIBIT NO. P-772: Document Number 1009062. Fax 11 from Dan Elliott attaching 12 correspondence documentation, 13 Sept. 11 '95. 14 15 CONTINUED BY MS. SUSAN VELLA: 16 Q: And behind it, already marked as an 17 exhibit, P-177, is a letter which I -- the date has been 18 taken off, but it appears to be faxed September 11, 1995. 19 It appears to be from Mr. Kobayashi to Mr. Carl George and 20 it purports to confirm the key points arising out of a 21 meeting held by -- as between Mr. Kobayashi and Mr. 22 George, with respect to the Park. 23 Are you familiar with the fact that this 24 meeting occurred on May 20th, 1993? 25 A: I have no direct recollections of
1961 that. 2 Q: You don't know? All right, thank you. 3 Now, during this general time frame of 4 1993, was the Ministry also having discussions with the 5 Kettle and Stony Point Band in relation to the management 6 of Ipperwash Provincial Park? 7 A: Not that I'm aware of. 8 Q: Perhaps I can take you to Tab 10. 9 This is Inquiry Document Number 1007819. It appears to be 10 a letter dated June 14, 1993 from Ron Baldwin who was the 11 district manager for Aylmer District from the Ministry to 12 Chief Tom Bressette and it appears that you received a 13 copy of this, did you? 14 A: Yes. 15 Q: All right. And does this refresh your 16 memory with respect to my question? 17 18 (BRIEF PAUSE) 19 20 Q: First paragraph reads -- 21 A: Yes. 22 Q: -- my staff have met with you on a 23 number of occasions recently to discuss matters concerning 24 the management of Ipperwash Provincial Park. 25 A: Yes.
1971 Q: Does that refresh your memory? 2 A: Yes. 3 Q: And were there any such discussions 4 held then, to your knowledge? 5 A: I assume so, from -- but I don't know, 6 specifically. But I assume, from looking at this, in that 7 my staff had met with you, that that's already occurred. 8 Q: You have no independent recollection? 9 A: I was not involved in any of those 10 kinds of meetings. 11 Q: All right. 12 13 (BRIEF PAUSE) 14 15 Q: In 1993, were you aware of the Kettle 16 and Stony Pant -- Point band's position with respect to 17 the recognition of the Stoney Point First Nation? 18 A: Generally. 19 Q: And what was their position, as you 20 understood it? 21 A: In terms of wishing to see themselves 22 established as a separate entity, is that -- 23 Q: Recognition -- 24 A: Yeah. 25 Q: -- as an entity, yes.
1981 A: Yes. 2 Q: What was your understanding of the -- 3 of the Band's position? 4 A: The Kettle and Stony Point? 5 Q: Yes. 6 A: At that particular point in time my 7 understanding was that they were not supportive of the 8 Stoney Point peoples or the Stoney Point group setting up 9 as a separate entity. 10 Q: Did that position influence the way 11 you dealt with the Stoney Point group in terms of their 12 requests for -- or assertions of -- of ownership and land 13 use of the Park? 14 A: My impression is that there was a 15 great deal of effort being made on behalf of the district 16 and their staff to try and create and foster good working 17 relationships with the Kettle and Stony Point Council and 18 the Chief. 19 And that, in discussions with that Council 20 and Chief, they wanted to ensure that that relationship 21 was upheld, I guess, and that this group that wasn't 22 appearing to be supported by the Kettle and Stony Point 23 Council, were not given the sort of same profile, if you 24 will. 25 Q: As the Band, as --
1991 A: As the Band. 2 Q: -- the Indian Act Band. 3 A: Yes. 4 Q: All right. Were you aware that -- 5 we'll move on to another area. Were you aware that the 6 members of the Stoney Point group entered into and 7 occupied part of Camp Ipperwash in 1993? 8 A: Yes, I was. 9 Q: And when did you learn of this event? 10 A: I believe it was on the 30th of July. 11 Q: Hmm hmm. 12 A: 1993. 13 Q: Was this act significant in any way to 14 you as zone parks manager, in July of '93? 15 A: Actually, I'm confused, I'm sorry. I 16 was -- I was confused with '95. In '93, going on to the 17 base, the military base? 18 Q: Correct. 19 A: Yes, I was a little bit concerned 20 about it, yes, that would be correct. 21 Q: And why -- why were you concerned 22 about this act? 23 A: I wasn't sure of the implications it 24 might have for visitors to -- to Ipperwash at that 25 particular time.
2001 Q: How -- how -- well, what -- what 2 specifically were you concerned -- 3 A: Well -- 4 Q: -- about in terms of the visitors to 5 the Park? 6 A: Specifically because Ipperwash was a 7 Provincial Park, it was the fourth oldest in the province. 8 It was a very old facility dating back to 1938. 9 Many of the families that we had there came 10 there year -- year after year after year with their -- 11 with their children, in fact. They had probably camped 12 there as children themselves with their parents. 13 And I think it was sort of their practice 14 to walk the beaches and be up in the dunes in the Camp 15 Ipperwash area. And so there was some question mark 16 around whether the -- how this would be accepted or 17 received which had been I think a long, sort of, serving, 18 long practice. 19 Q: All right. To your acknowledge were 20 your concerns shared by others at the Ministry? 21 A: I expect locally, yes. 22 Q: Was anything done in response to your 23 concerns? 24 A: I believe some of our enforcement 25 staffing levels changed at the Park in Ipperwash in 1993.
2011 That's correct. 2 Q: You say changed, changed in what way? 3 A: There might have been additional staff 4 resources, working longer shifts, that type of thing. 5 Q: So, increase levels of security? 6 A: Sure. Sure. 7 Q: Is that right? 8 A: Yes. Yes. That would be correct, 9 sorry. 10 Q: That's all right. Are you aware as to 11 whether an Interministerial Committee meeting was convened 12 to deal with the potential impact of the occupation of 13 Camp Ipperwash in '93 to the use of the Park? 14 A: I'm not aware of that. 15 Q: You're not aware of that. Okay. In 16 '93 would you have typically received reports with respect 17 to the results of any Interministerial Committee meetings 18 that had to do with Ipperwash? 19 A: I may have if there was a need for me 20 to be informed of something that had been recommended that 21 we had to do or an action that we had to take or something 22 like that. 23 Q: And no such action comes to mind? 24 A: Nothing comes to mind. 25 Q: Thank you. Now, would you typically
2021 be apprised of any -- any occurrences, unusual occurrences 2 or incidents occurring at the Park, at Ipperwash Park or 3 any other park in your jurisdiction? 4 A: Yes, I would. 5 Q: And would you be apprised of all 6 incidents or certain incidents? 7 A: There was a time in our history when 8 all those occurrences regardless if it was a litter 9 occurrence or something more serious was sent to my 10 office, and I'm struggling a bit to try and remember when 11 that stopped. 12 And the, sort of, minor occurrences would - 13 - sort of, remained at the park, but certainly most 14 serious items were -- were brought to my attention. 15 Q: All right. And typically who would 16 bring serious incidents to your attention? 17 A: The superintendents. 18 Q: So, Mr. Kobayashi for -- 19 A: Mr. Kobayashi. 20 Q: -- this Park? 21 A: That's correct. 22 Q: All right. And how would you define a 23 serious incident? In other words, serious as opposed to 24 minor. 25 A: It was a bit of a judgement call
2031 really. I mean it -- it -- if there had been an injury 2 involved. If there was a staff -- an altercation of some 3 kind involving a staff member. If the OPP had had to be 4 called and there arrests made as opposed to somebody was 5 having a party at 3:30 in the morning on their campsite 6 and we'd just confiscated a couple cases of beer and that 7 was the end of that. 8 Q: Is it fair to say that serious 9 incidents would include primarily serious injury to 10 persons or property? 11 A: Injuries, property, staff involvement 12 if it was an injury to them. Criminal Code matters were 13 generally dealt with. In our training with our park 14 wardens we -- we've -- we try and emphasize to them, 15 although they do have the authority, we emphasize to them 16 that the OPP should be involved with Criminal Code 17 matters. 18 Q: All right. So, in other -- what did - 19 - did your officers at the Park have the technical 20 authority to deal with those types of serious incidents? 21 A: I don't want to get myself into hot 22 water among so many lawyers but -- 23 COMMISSIONER SIDNEY LINDEN: Not really. 24 25 CONTINUED BY MS. SUSAN VELLA:
2041 Q: Everyone's patiently awaiting. 2 A: Yeah, I - 3 Q: I'm interested in your understanding, 4 that's all. 5 A: My understanding is they could lay 6 some Criminal Code charges. 7 Q: But, the practice was to involve the 8 local police -- 9 A: That's correct. 10 Q: -- in those situations. 11 A: That's correct. 12 Q: All right. Now, over the course of 13 1993 and 1994, were you apprised of serious incidents 14 which allegedly involved park users and Aboriginal 15 persons? 16 A: Between '93 and '94? 17 Q: Correct. So, after the partial 18 occupation of Camp Ipperwash. 19 A: Yes, I got the -- I got a few e-mails 20 to that effect, yes, copied. 21 Q: All right. And can you give us a 22 sense with -- as to the -- the nature and frequency of 23 those incidents of which you were made aware? 24 A: I wouldn't say that they were 25 extremely frequent. Often they involved disputes between
2051 visitors and campers to the Park that had gone there for 2 very many years and either forgot, didn't know or didn't 3 believe the notice that they may have gotten at the Park 4 gate and have decided that they wanted to walk onto the 5 Camp Ipperwash property adjacent to Ipperwash. 6 Q: And just -- 7 A: And then -- sorry, go ahead. 8 Q: Just to be clear, the camp Ipperwash 9 Park was adjacent -- sorry, beach, was adjacent to the 10 Ipperwash Park beach? 11 A: I'm sorry, yes, that's correct. 12 Q: Okay. Was there any pattern to these 13 incidents which the Ministry observed from May of '93 to 14 the Park closing in the fall of '94 over that period of 15 time? 16 A: How do you mean by pattern? 17 Q: Well, was it steady, decreasing or 18 increasing -- 19 A: Oh -- 20 Q: -- in frequency? 21 22 (BRIEF PAUSE) 23 24 Q: Or was there a pattern that you 25 detected?
2061 A: I don't think I detected a pattern -- 2 Q: All right. 3 A: -- to be honest. 4 Q: Nothing came to your attention in that 5 respect? 6 A: No. 7 8 (BRIEF PAUSE) 9 10 Q: As a result of these serious -- these 11 serious incidents, was any concrete action taken by Park 12 officials to try to curb the occurrence of those 13 incidents? 14 A: There were notices developed, I 15 believe. There was messages given out at the Park gate 16 when visitors entered the Park. Enforcement staff 17 schedules were changed. 18 On long weekends, we -- because it was 19 fairly typical in the Provincial Parks in southern Ontario 20 in that era for conservation officers to come and -- come 21 down on long weekends which are traditionally busy and can 22 be quite boisterous, I guess, is -- is maybe the right 23 word. 24 Q: All right. And can you tell what the 25 difference is between a park conservation officer and --
2071 and an assistant -- the assistant -- the wardens, for 2 example, who would be there, typically? 3 A: Park wardens are generally contract 4 staff. We hire them for a four (4) or five (5) month 5 period. Typically they come out of resource management 6 college programs. We provide them with a two (2) week 7 classroom and self defence use of baton, handcuffing that 8 kind of thing. 9 A conservation officer, on the other hand 10 is -- I'm not -- I'm not aware of any that are on contract 11 staff, so they're all permanent staff members. 12 They deal primarily in the area of fish and 13 wildlife, on -- on the Ministry's fish and wildlife side. 14 Part of their uniform is a firearm. 15 Q: Can -- 16 A: Our -- our staff don't have firearms. 17 Q: Okay. Thank you. And perhaps you'd 18 go to 12 -- Tab 12, please, which is Inquiry Document 19 Number 1010310, e-mail dated May 24, 1994 20 It appears to be from yourself to Jim 21 Young. 22 A: That's correct. 23 Q: Do you recognize that and did you send 24 that e-mail? 25 A: Yes, I think.
2081 Q: Make that the next exhibit, please. 2 THE REGISTRAR: P-773, Your Honour. 3 4 --- EXHIBIT NO. P-773: Document number 1010310. E- 5 mail from Peter Sturdy to Jim 6 Young Re. Ipperwash, May 26, 7 '94. 8 9 CONTINUED BY MS. SUSAN VELLA: 10 Q: And this sets out the -- the increase 11 in -- sorry. What does this -- what were you conveying to 12 Jim Young here? 13 A: At that time Jim Young was my 14 supervisor. This was just prior to our next 15 reorganization. So, Jim Young was my supervisor who 16 reported then to a regional director. 17 So, I was trying to convey to him it 18 appears some incidents and some concerns in the Ipperwash 19 area and that there had been a meeting between the 20 superintendent and Dan Elliott, a meeting with the 21 municipality and the OPP. 22 Q: And did any -- any arrangement arise 23 as a result of that meeting relevant to the Park? 24 A: I believe that there was a commitment 25 made to extend the extent of full-time coverage for some
2091 of the staff, the security staff. To act in a -- I see 2 here in the third paragraph to act as the eyes and ears, 3 kind of role. 4 Q: Now, was it unusual in your experience 5 for Park officials to be having this -- these kinds of 6 meetings and relationship with the local police? 7 A: No, it wasn't. 8 Q: Why -- in what respect -- why was it 9 not unusual? 10 A: Because there's been a long -- a long 11 history of working together with the Ontario Provincial 12 Police and with our Ministry and particularly our parks 13 program. In fact I think even the -- their Act even and I 14 know their standing orders at one time even required them 15 to be the police officers for provincial parks. So we had 16 detachment offices that were built inside provincial parks 17 at one (1) time. There was one in Pinery as an example. 18 That we encourage our superintendents every 19 year, at the beginning of every year to meet with their 20 local detachment officer just to talk about any issues 21 that have come up the year before; anything that was 22 anticipated to be happening this year. 23 So, it was not unusual by any means to have 24 that kind of relationship. And often it became, you know, 25 because of people staying on one (1) spot for quite a
2101 period of time it became quite a -- a normal thing that 2 people would just drop in, have a coffee and chat about 3 something, move on. So it wasn't always necessarily a 4 formal meeting in that sense. 5 Q: And was there a working relationship 6 with the OPP? 7 A: Yes. 8 Q: How would you characterize that 9 working relationship as between your Parks staff and the 10 OPP? 11 A: I thought it was a very good working 12 relationship. 13 Q: Sorry? 14 A: A very good working relationship. 15 Q: All right. 16 A: Excellent. 17 Q: How did they interrelate? 18 A: I think there was -- communications 19 was -- was good. Sometimes there might be a need for 20 equipment to be lent. I know that on occasion we've 21 provided room and board for police officers. Parks are a 22 great place to visit in the summer and police officers 23 like to come and visit. 24 Q: Do you recall whether you had any 25 direct contact with the OPP regarding the Ipperwash
2111 Provincial Park up to or prior to the spring of 1995 in 2 relation to the First Nation occupation of Camp Ipperwash? 3 A: I don't recall any personally myself. 4 I know that Les Kobayashi had -- had more contact locally 5 with the sergeant, I believe, out of Grand Bend and 6 Forest. 7 Q: All right. But you didn't have any? 8 A: No. 9 Q: And as of the Park closing on Labour 10 Day weekend of 1994 did you have -- personally have any 11 substantial concern that the Park might be a target for 12 occupation by Aboriginal people? 13 A: In '94? 14 Q: Yes. 15 A: No. 16 Q: By the end of the season? 17 A: No. 18 Q: All right. Did that perception change 19 in any way come the spring of 1995 after the Park's 20 opening -- reopening? 21 A: No, I wouldn't say in the spring, no. 22 Q: No. Was there any change in the 23 nature or frequency of serious incidents allegedly 24 involving park users and Aboriginal persons over that 25 spring?
2121 A: Spring, you mean up until May -- 2 April, May, you mean -- 3 Q: April, May, June. 4 A: There was, I think -- no, I'm sorry 5 I'm mixing up the dates. I can't think of anything other 6 than some accounts of some minor altercations if you like, 7 that might have been occurring again along the beach up 8 until about June. 9 Q: Do you recall receiving any reports 10 from Mr. Kobayashi in relation to a meeting with the local 11 OPP -- 12 A: Yes. 13 Q: -- concerning -- reflecting a concern 14 on the OPP's part? 15 A: Yes. 16 Q: All right. And what's your 17 recollection of that? 18 A: That he had had meetings with local 19 officers, I believe, about situations that were changing 20 in the area of -- just in the general, sort of, Ipperwash 21 area. And I think he expressed some concern that the 22 situation might become more tense and more difficult, 23 perhaps more volatile. 24 I think we asked -- I may be going past 25 where you wanted to go with this, but I think we asked
2131 some of our staff to be a little bit more eyes and ears in 2 terms of any particular occurrences or incidents that 3 involved campers and First Nations peoples. 4 Q: And when you say "eyes and ears", eyes 5 and ears for whom? 6 A: Oh, for the OPP, I'm sorry. 7 Q: And perhaps you'd go to Tab 13, it's 8 Inquiry Document Number 1009262. It's an e-mail from Les 9 Kobayashi dated May 19, 1995 and it's -- you are shown as 10 being the first person on the distribution list. 11 Now first of all, did you receive this e- 12 mail in or around that time? 13 A: I believe so, yes. 14 Q: And it's -- the subject is Ipperwash 15 Native Issue Update. 16 A: I'm sorry tab? 17 Q: It's Tab 13. 18 A: I'm sorry I was on 14, sorry. 19 Q: Okay. This is an e-mail that you 20 received in or around that time? 21 A: Yes. 22 Q: And was it with respect to the 23 Ipperwash Provincial Park? 24 A: In part, yes. 25 Q: All right. I'd like to make this the
2141 next exhibit please. 2 THE REGISTRAR: P-774, Your Honour. 3 4 --- EXHIBIT NO. P-774: Document number 1009262 . E- 5 mail from Les Kobayashi to 6 distribution list re. 7 Ipperwash Native Issue Update 8 May 19, '95. 9 10 CONTINUED BY MS. SUSAN VELLA: 11 Q: And the first paragraph, it's reported 12 by Mr. Kobayashi that Sergeant Bowman of the OPP, Grand 13 Bend Detachment advised that the Camp Ipperwash Native 14 situation was escalating due to a number of factors which 15 are then listed. 16 Then -- and then indicates that on March -- 17 sorry, May the 18th, Mr. Kobayashi attended at an 18 emergency OPP briefing in Forest which reviewed the OPP 19 and the Ministry's procedures on how to deal with this 20 issue. And this issue being the escalating situation. 21 Now were you apprised of this meeting? 22 A: It would probably have been through 23 both this particular e-mail and perhaps a short telephone 24 conversation as well. 25 Q: All right. And did the proposal in
2151 the second paragraph set out your understanding of the 2 joint OPP, MNR response to try to contain this situation? 3 A: Yes. 4 Q: As a result of receiving this report 5 from Mr. Kobayashi, were you at all concerned or did it 6 affect your assessment of the safety of the Park use? 7 A: The safety of our Park visitors and 8 the safety of our staff was always my primary concern. 9 Frequently we would ask that question around sort of risk 10 assessment, if you like, as the situation came to be known 11 and if we had that assurance from the OPP that the risk 12 was low, minimal then we proceeded on. 13 Q: What was your assessment of the 14 situation, then, as of May 1995, in terms of the safety of 15 the Park for your staff and Park users? 16 A: At that time I felt comfortable with 17 the provisions that had been put into place and the kind 18 of patrols that were going to be occurring and the 19 staffing levels over a 24/7 period. 20 Q: All right. And those -- were those 21 controls listed at page 2 of this e-mail; that is the zone 22 would have additional conservation officer enforcement 23 support to assist with night enforcement; that a 24 contingency plan would be forwarded to Mr. Kobayashi that 25 was developed; that notice would be provided to users and
2161 that an enforcement procedure for Pinery and Ipperwash 2 staff be provided on how to deal with any such 3 occurrences? 4 A: Was I happy with that? 5 Q: Yes. 6 A: Yes. 7 Q: Were you content with that? 8 A: Yes. 9 Q: And the notice, do you know what 10 notice is being referred to, notice to users? 11 A: I know some kind of a pamphlet was 12 prepared and was provided to people as they entered the 13 Park about the adjacent military/Camp Ipperwash beach and 14 -- advising them not to go onto that -- onto that beach. 15 Q: All right. Was the -- to your 16 knowledge was the -- the timing of this meeting and e-mail 17 in -- in response to the fact that the May 24th weekend 18 was around the corner? 19 A: Oh yes. 20 Q: Okay. 21 A: 'Cause that's typically a period that 22 -- the May 24 weekend or the Labour Day weekend is a fun 23 time at provincial parks, especially for young people and 24 young people who might not bother to read notices and 25 signs and pamphlets and things and might get themselves
2171 into situations particularly if there's alcohol involved 2 for them that they wouldn't normally be in. 3 Q: All right. Fair enough. And this e- 4 mail also refers to a contingency plan, can you tell us 5 what that was about? 6 A: At that point in time I didn't know a 7 lot about the contingency plan that had been developed, I 8 believe, back in 1993 by the District and their 9 enforcement staff. 10 Q: What was it meant to address? 11 A: It would have addressed -- the details 12 of it would have addressed the evacuation of the Park. 13 Q: All right. And as you recall how did 14 the May 24 weekend at Ipperwash go? Were there any 15 unusual incidents or increase in frequency of incidents 16 that you can recall? 17 A: I have no memory of that. 18 Q: All right. As summer progressed did 19 the situation in terms of incidents, reportedly between 20 Park users and aboriginal persons, change in any way? 21 A: You're talking right now up until the 22 end of August, is that -- 23 Q: Yes, that's fair. 24 A: Yeah, I -- I think that would be a 25 fair statement that the types of incidents and the
2181 frequency of them began to increase a bit. 2 Q: It began to increase? 3 A: That's correct. 4 Q: And do you recall any significant 5 examples of any serious incidents that you have specific 6 recollection of? 7 A: Well, I have recollection of one (1) 8 very serious incident which occurred where a car that was 9 driven allegedly by a First Nations person came through 10 from the Camp Ipperwash beach onto the Ipperwash beach, 11 broke through a barricade, came up into the campground 12 area, travelled at a fairly high rate of speed around the 13 campground area, back down on to the beach, when a 14 gentlemen was concerned about either his child or a child 15 being almost hit, reached in through the car window and 16 apparently grabbed hold of someone's hair that was driving 17 the vehicle. 18 The vehicle spun around on the beach and my 19 understanding was that his leg was pinned or run over 20 before the car then drove back into the Camp Ipperwash. 21 Q: Did you receive a written report with 22 respect to this incident? 23 A: I got an e-mail from Les Kobayashi on 24 that incident. 25 Q: I'll take you to Tab 16, please.
2191 Inquiry document number 1009258, e-mail dated July 11, 2 1995 from Les Kobayashi, subject: Ipperwash incident, 3 July 10, 1995, and you're shown on the distribution list. 4 Is this -- take a moment to look at it. Is 5 this the incident to which you are referring? 6 A: That's correct. 7 Q: I'd like to make this the next 8 exhibit, please. 9 THE REGISTRAR: P-775, Your Honour. 10 11 --- EXHIBIT NO. P-775: Document number 1009258. E- 12 mail from Les Kobayashi to 13 distribution list re. 14 Ipperwash Incident July 10, 15 '95; July 11, '95. 16 17 MR. WALTER MYRKA: Commissioner, I just 18 simply point out that on this document there's some 19 personal information on the first page and if that 20 information could be excised for purpose of the exhibit. 21 COMMISSIONER SIDNEY LINDEN: Addresses and 22 telephone numbers, things like that? 23 MR. WALTER MYRKA: That's correct. 24 THE REGISTRAR: Is that the camper 25 involved?
2201 MR. WALTER MYRKA: That's -- that's it. 2 It may also be referred to in the body of the document, 3 I'm not sure about that. But I think it's just where the 4 name and address is. 5 MS. SUSAN VELLA: Thank you, Mr. Myrka. 6 7 CONTINUED BY MS. SUSAN VELLA: 8 Q: Now, to your knowledge, was this 9 incident ever investigated? 10 A: It was reported to the OPP and I would 11 have assumed, would have been investigated. 12 Q: To your knowledge, was the alleged 13 perpetrator ever identified? 14 A: I don't know. 15 Q: To your knowledge, were any charges 16 laid? 17 A: I don't know. 18 Q: Was anything done in response to this 19 incident in terms of the levels of security and security 20 operations at the Park? 21 A: I think the barricades were replaced 22 by cement blocks. 23 Q: And where were these cement blocks 24 erected? 25 A: That would be down on the beach
2211 between the army -- the army camp beach and the -- and the 2 Ipperwash beach. 3 Q: All right. So -- 4 A: I believe there had been wooden posts 5 there previously which this vehicle had -- was able to 6 drive through and that was replaced by cement blocks, I 7 believe. 8 Q: Thank you. Now, incident -- the 9 incidents aside, did anything happen of significance over 10 the course of the summer of 1995 which caused you any 11 increase concern regarding the use of the Park by members 12 of the public? 13 14 (BRIEF PAUSE) 15 16 A: Aside from these types of incidents, 17 you mean? 18 Q: Yes, yes. 19 A: Well, at the end of July, if that's 20 the period that we're moving towards, yes. There were 21 some concerns then when the -- when the barracks at the 22 former Camp Ipperwash were taken over -- 23 Q: Can you recall when you were advised 24 of this incident? 25 A: Yeah, that would have been in July the
2221 30th which I believe was a Sunday morning, by Don 2 Matheson, at 8:30. 3 Q: And how did the fact of the occupation 4 of the barracks impact on your assessment of the secure -- 5 relative security of the Park? 6 A: One of the arrangements that we had in 7 the Park for drinking water for the public was through an 8 agreement that we had with the Department of National 9 Defence where, many years previously, they had constructed 10 a pump house on Ipperwash Park land with the agreement 11 that they would use that pump house to bring water from 12 the lake, treat it, send it up to the Army Base into a 13 tower, I believe. 14 But then there would be a line back into 15 Ipperwash Park which would then serve members of the 16 public. 17 Q: All right. And how was this possibly 18 -- the service possibly jeopardized by the occupation of 19 the barracks? 20 A: I guess the concerns were twofold. a) 21 That we would be able to turn the tap on and actually 22 receive water at -- at the other end. And secondly, the 23 quality -- the quality of the water that it was available 24 for people to drink. 25 Q: Just because that there were some type
2231 of operation required from within Camp Ipperwash in order 2 to facilitate the process? 3 A: No. My understanding was the 4 treatment was -- the treatment was done at the pump house, 5 is my understanding. But at that point, because it would 6 be travelling from the pump house into the water tower and 7 then back into the Park, there was a concern that through 8 some accident that -- or operation of the water tower that 9 there may be a contaminant or some impurity. 10 Q: All right. Did you have any concern 11 with respect to the potential that Ipperwash Park might be 12 a target of occupation? 13 A: At that particular time, yes. 14 Q: All right. Did you provide a report 15 to your superiors with respect to the occupation of the 16 barracks and its potential impact on the use of the Park? 17 A: Yes, I did. 18 Q: Would you look at Tab 18 of your Book 19 of Documents, Inquiry Document Number 1007835? It's an e- 20 mail from yourself to various people not listed, dated 21 July 30, 1995 at 2:46 p.m. 22 Is this your report? 23 A: This is one report and then there was 24 a subsequent e-mail correspondence to my assistant deputy 25 minister and some other senior staff.
2241 Q: I'm sorry. I didn't hear you. 2 A: I'm sorry. There was this report and 3 then there was a subsequent also covering some of the same 4 subject area to my assistant deputy minister, Patricia 5 Malcolmson. 6 Q: Okay. Let's deal with this report 7 first. 8 A: Sure. 9 Q: I'd like to make this the next exhibit 10 please. 11 A: Okay. 12 THE REGISTRAR: P-776, Your Honour. 13 14 --- EXHIBIT NO. P-776: Document Number 1007835. E- 15 mail from Peter Sturdy to 16 distribution list re. 17 Ipperwash, July 30, '95. 18 19 CONTINUED BY MS. SUSAN VELLA: 20 Q: This document accurately sets out your 21 views and the facts as you understood them to be at that 22 time? 23 A: As they had been relayed to me by Mr. 24 Matheson, yes. 25 Q: And, in fact, had the OPP put in a
2251 special team which were being housed at the Pinery Park in 2 response to this occurrence? 3 A: That was my understanding based on the 4 information provided. 5 Q: All right. You indicate that staff 6 and public safety are your highest priority? 7 A: Always. 8 Q: And that the OPP and military are 9 handling communications with the media. That the MNR's 10 message is simply that we are actively monitoring 11 developments with the DND and the OPP and that our primary 12 concern is the staff and public safety. 13 Is that -- is that correct? 14 A: Correct. 15 Q: Now at this point in time, was any 16 thought given by you and your staff as to how to perhaps 17 diffuse the tensions as regard the rumoured takeover of 18 the Park? 19 A: How could we diffuse the tensions? 20 Q: Yes. Was any thought given to that? 21 A: I don't recall any initiatives that 22 were suggested or proposed at that time. 23 Q: Is it fair to say that your park 24 wardens and assistant wardens were persons from the 25 community who -- who -- some of whom knew the First Nation
2261 -- the local First Nations people? 2 A: That would be fair. 3 Q: And that Mr. Kobayashi, in fact, knew 4 some of the local First Nation people -- 5 A: That's correct. 6 Q: -- in his capacity as Park 7 Superintendent? 8 A: That's correct. 9 Q: In other words there was a 10 relationship of sorts that -- that could be built upon? 11 A: Yes, and I'm -- I'm just not familiar 12 with his relationships with the Stoney Point Group and I 13 know he had built up good relationships, but I'm not sure 14 when the Camp was occupied what his personal relationships 15 were with the people that were in the Camp. 16 Q: I was just wondering whether you -- 17 you turned your mind to the possibility that -- that -- 18 that perhaps a line of communication could be opened as 19 between your Park staff on the ground, so to speak, and 20 some of the occupiers? 21 A: I -- I can't recall any discussion or 22 initiative in that area. 23 Q: And by this time you knew that there 24 was an assertion by the Stoney Point Group that there were 25 sacred burial grounds within the Park?
2271 A: In -- and which -- and which date was 2 this? 3 Q: You knew that from the May 1993 -- 4 A: '93, yeah, yeah. 5 Q: -- document we looked at earlier. 6 A: Yeah. 7 Q: And did you turn your mind to the 8 possibility that the burial grounds could become a focus 9 of attention with respect to the rumoured takeover of the 10 Park? 11 A: Not really. 12 Q: Did you undertake any steps or direct 13 any research steps to investigate the merits of that 14 assertion with the occupation now of the barracks? 15 A: No. 16 Q: Do you know -- can you tell us why 17 not? 18 A: I think it stemmed back from the fact 19 that, in 1993, when some of these original documents had 20 been sent to our district office and had then been 21 reviewed, I believe, by a number of different people in -- 22 in our Toronto offices, and in our Legal Services, I 23 couldn't recall anything coming out of that process which 24 indicated that we should initiate some special research 25 projects or look into some of those claims more
2281 specifically. 2 And -- and coupled with that, I think, was 3 the feeling that -- that stemmed back in '93 as well, was 4 the strong desire, if you like, of the district to try and 5 maintain the good working relationship that they had with 6 the Kettle and Stony Point council and chief who was quite 7 concerned, as I understood it, I -- the Stoney Point Group 8 and what they were doing and what they stood for. 9 Q: So at this point in time is it fair to 10 say that -- that you were aware that the Indian Act Band, 11 that is the Kettle and Stony Point Band, were not 12 supportive of the Stoney Point Group's occupation of the 13 barracks? 14 A: That was my general understanding. 15 Q: And you were concerned that 16 investigating these claims of -- of burial grounds, et 17 cetera, by the Stoney Point Group might interfere with the 18 Ministry's good -- otherwise good relationship with the 19 Indian Act Band; is that fair? 20 A: I think that's fair and I -- and I 21 think, although I may be -- I may be mixed on the dates 22 but there was no indication coming from the Kettle and 23 Stony Point Band that they had a belief that there were 24 burial grounds at that point. 25 Q: And you were aware, also, that the
2291 Stoney Point Group had made an assertion, in 1993, that 2 the Ipperwash Park was in fact their territory? 3 A: Yes, and I think that -- that was 4 attempted, at least, to be answered and clarified. 5 Q: At this time did you undertake any 6 further research or work to investigate the merits of that 7 claim? 8 A: About title you mean? 9 Q: Correct. About title and the basis of 10 their assertion of ownership? 11 A: Yes, in -- in August I started asking 12 -- in fact I was asked, and I started asking some 13 questions, about making sure that we had title, and for my 14 own mind, my own peace of mind, that -- that the position 15 that we had was the correct position, that the province 16 had acquired these through regular processes and that, in 17 fact, we had clear title. 18 Q: And in that respect, did you go 19 beyond, essentially, a review of the title searches, if 20 you will, with respect to the sale and purchase of that 21 piece of property as a Park? 22 A: No, it was strictly title documents. 23 Q: All right. So you didn't -- you 24 didn't have any research with respect to the underlying 25 surrender or the treaty, for example?
2301 A: No, because if it -- I think if it had 2 been as many of us, I think, discussed in that period of 3 time, that if -- if it was an issue of surrender -- 4 sorry -- 5 Q: Go ahead. 6 A: If it was an issue of surrender then 7 that was a grievance that perhaps should have been taken 8 up with the Federal Government to resolve this -- those 9 lands had been surrendered to the Federal Government and 10 then sold to private interests and then to the Government 11 of Ontario. 12 Q: All right. So you saw that as a 13 federal concern, not a provincial concern? 14 A: Well I think that's where the first 15 place to have looked would have been. 16 17 (BRIEF PAUSE) 18 19 Q: Now, in or around this time, do you 20 have any direct con -- communications with then-Inspector 21 John Carson? 22 A: I believe I had -- it's my 23 recollection that the first time I talked to Mr. Carson 24 was a few days after the -- the occupation of the 25 barracks, if you like.
2311 Q: All right. And who initiated this 2 contact? 3 A: I can't recall, to be honest, whether 4 I phoned or he phoned. 5 Q: All right. What was the purpose of 6 the -- the meeting? 7 A: At that point I think I wanted to hear 8 first hand his assessment of risk for public and for 9 staff. 10 Q: With respect to the use of the Park 11 as -- 12 A: That's correct. 13 Q: -- a consequence of the occupation of 14 the barracks? 15 A: That's correct. 16 Q: All right. And do you recollect what 17 his assessment was, as conveyed to you? 18 A: My recollection is, is that he felt 19 that the situation was not -- the risk assessment of the 20 situation was not such that we had to close the facility 21 to the public at that time. 22 Q: All right. Did he recommend any 23 additional precautions that should be taken by the MNR to 24 safeguard against such a possibility? 25
2321 (BRIEF PAUSE) 2 3 A: I don't recall any specifics, because 4 at that point there was -- the OPP themselves had a number 5 of their staff involved, I believe, undercover vehicles 6 coming in and out of the Park at different times, more 7 visible patrols of their cruisers were coming through the 8 Park. 9 As I've mentioned, we'd had coverage of 10 some of our own wardens and security staff extended. So I 11 think those steps were already in place. 12 I -- I don't recall him indicating that we 13 should do something additional to that. 14 Q: All right. To your knowledge was 15 there then an increase in the visibility of the police in 16 or around the Park? 17 A: Yes. 18 Q: And you indicated that there were, at 19 this time or in and around this time, some undercover 20 police officers were being sent into the Park for 21 surveillance? 22 A: That was my understanding. 23 Q: And did he also discuss with you 24 options to be exercised in the event of an occupation of 25 the Park?
2331 A: Yes, he did. 2 Q: And do you recall what those options 3 are? 4 A: My characterization in my e-mail was 5 basically that he talked about three (3) possible 6 scenarios occurring and what might occur with each 7 scenario. 8 I recall that he talked about if it was 9 just a few people that came into the Park it would 10 probably be a fairly -- a relatively -- matter of -- of 11 arrest and remove from the Park. There was the 12 possibility that the front entrance to the Park might be 13 blockaded in which case, again, there might be arrest and 14 towing of vehicles, cleaning out the blockade. 15 And the third scenario that he went through 16 was involving a much larger group of -- of people in which 17 case he indicated that he would need our help in securing 18 some kind of an injunction. 19 Q: All right. And perhaps -- you 20 referred to an e-mail, would you kind look at Tab 19 which 21 is Inquiry Document Number 3000626. E-mail dated August 22 1, 1995 from yourself to Barry Jones. And it appears to-- 23 A: That's correct. 24 Q: -- to reflect the contents of your 25 meeting with Inspector Carson.
2341 A: That's correct. 2 Q: Now I should say was that a meeting or 3 a telephone conversation; do you recall? 4 A: I'm sorry. It was a telephone 5 conversation. 6 Q: That's fine. And -- 7 A: Barry Jones by the way was a director 8 of Legal Services in MNR. 9 Q: Okay. And you've recorded here, as 10 you've indicated, that if it was a small group of six (6) 11 to ten (10) who entered the Park and made a claim, the OPP 12 response would be that this is a small enough group to 13 make an arrest and remove them from the Park? 14 A: That was my understanding from -- 15 Q: And secondly, if there was blockade of 16 a Park entrance, then, again, the OPP would go and arrest 17 and have the vehicle towed to allow and maintain 18 unrestricted access to the Park for emergency vehicles? 19 A: Correct. 20 Q: And then the third scenario was if 21 there was a large group including women and children, the 22 OPP -- who entered the Park and make a claim, it says, 23 similar to tactics used at Camp Ipperwash, the OPP 24 response would be evacuate Park of staff and public, 25 negotiate, physically remove from Park.
2351 And he mentioned that the number 3 2 situation, involving a large group would require the 3 issuance of a court injunction. And you're asking, Do we 4 need to do anything to have paperwork in our back pocket 5 in the event that this becomes necessary. Is that right? 6 A: That's correct. 7 Q: And in fact, did you receive a 8 response? 9 A: No I don't believe I did. 10 Q: All right. And to your knowledge were 11 any preparatory steps taken to prepare the paperwork for a 12 possible injunction to have in -- in your back pocket? 13 A: Not that I'm aware of. 14 Q: Okay. Thank you. I'd like to make 15 this next exhibit please. 16 THE REGISTRAR: P-777, Your Honour. 17 18 --- EXHIBIT NO. P-777: Document Number 3000626. E- 19 mail from Peter Sturdy to 20 Barry Jones, Aug 01, '95. 21 22 CONTINUED BY MS. SUSAN VELLA: 23 Q: And you indicated you also made a 24 report to your assistant deputy minister, Patricia 25 Malcolmson?
2361 A: That's correct. 2 Q: All right. And if you would go to Tab 3 20, please? This is an e-mail, it's difficult to read the 4 dates. Do you know if that was August the 1st as well? 5 A: Yes, August the 1st. 6 Q: 1995, from yourself to Patricia 7 Malcolmson, and does this provide your -- is this your 8 report that you made to her in relation to the occupation 9 of Camp Ipperwash and the impact, potentially, for the 10 Park? 11 A: That's correct. 12 Q: And you're also reporting with respect 13 to what -- your -- your telephone conversation with John 14 Carson. 15 A: That's correct. 16 Q: I'd like to make this the next exhibit 17 please. 18 THE REGISTRAR: P-778, Your Honour. 19 20 --- EXHIBIT NO. P-778: Document Number 1012223. E- 21 mail Briefing Note from Peter 22 Sturdy to P. Malcolmson. 23 August 01, '95 24 25 THE WITNESS: I point out that there's one
2371 (1) typo error, I believe, in the last line that I just 2 noticed. On the second page. It talks about: 3 "Note: Actions are to be reviewed on 4 Wednesday, July the 2nd." 5 6 CONTINUED BY MS. SUSAN VELLA: 7 Q: Yes. 8 A: That should read August the 2nd. 9 Q: August the 2nd. Thank you. That's on 10 the second page under, "Recommended response," for the 11 record. 12 MS. SUSAN VELLA: Perhaps we -- this would 13 be appropriate to take the afternoon break. 14 COMMISSIONER SIDNEY LINDEN: Yes. I think 15 this would be a good time for a break. We'll take a break 16 now. 17 THE WITNESS: Thank you. 18 MS. SUSAN VELLA: Thank you. 19 THE REGISTRAR: This Inquiry will recess 20 for fifteen (15) minutes. 21 22 --- Upon recessing at 2:56 p.m. 23 --- Upon resuming at 3:17 p.m. 24 25 THE REGISTRAR: This Inquiry is now
2381 resumed. Please be seated. 2 MS. SUSAN VELLA: Thank you, Commissioner. 3 4 CONTINUED BY MS. SUSAN VELLA: 5 Q: Just before the break we were 6 reviewing the document at Tab 20 Exhibit 778 e-mail to 7 Patricia Malcolmson which was your report with respect to 8 your meeting with Inspect -- then-Inspector John Carson 9 and in this report you also provide recommendations to 10 your assistant deputy minister; is that fair? 11 12 (BRIEF PAUSE) 13 14 A: I think that's fair. 15 Q: And in this letter you confirm that 16 the OPP intelligence is such that there might be an 17 attempt to occupy the Park? 18 A: Correct. 19 Q: And to your knowledge is this the 20 first time that you inform your assistant deputy minister 21 of that possibility? 22 A: I believe so. 23 Q: You also confirm that the OPP have 24 brought in an emergency response team which are stationed 25 at the Pinery and also that an undercover team has been
2391 placed in the Park and that there is an increased visible 2 presence in the form of uniformed officers around the 3 Park? 4 A: That's correct. 5 Q: And these were measures to -- in part, 6 at least, to enhance the security of the Park and the 7 region immediately around the Park? 8 A: That's correct. 9 Q: And you advise your assistant deputy 10 minister further that then-Inspector John Carson who was 11 going to be -- who was the incident commander had 12 requested confirmation with respect to the MNR's position 13 in the event that the Park becomes occupied. 14 And you have indicated that the position at 15 this point would be that given that there is no official 16 land claim and given that the Park was acquired through 17 the normal course or channels by the -- by the Government 18 that the MNR would see this -- any occupation as quote, 19 "an illegal act." 20 Is that accurate? 21 A: That's accurate. 22 Q: You also flag for her attention the 23 issue with respect to the frailty or vulnerability of the 24 water supply to the Park? 25 A: Yes.
2401 Q: And you indicate that a contingency 2 plan has been developed with the OPP for the closure and 3 evacuation of the Park should I take it -- should an 4 occupation of the -- of the third scenario, referred to by 5 Inspector Carson, take place? 6 A: That's correct. 7 Q: And at this point in time were you 8 familiar with the components of the evacuation or 9 contingency plan? 10 A: I wasn't familiar at that point with 11 the detailed components of the evacuation plan or the 12 contingency plan. 13 Q: Was it your understanding that it 14 would involve, however, the joint cooperation of the MNR 15 and the OPP? 16 A: That's correct. 17 Q: You then propose to your assistant 18 deputy minister a recommended response which is 19 essentially that the MNR will continue to monitor the 20 situation in consultation with the OPP with your primary 21 concern being the safety of the public and the staff at 22 the Park; that the ownership status of the Park is not an 23 issue for the reasons you've stated, and that the MNR 24 would view the occupation of the Park as an illegal act 25 and therefore take appropriate actions.
2411 Is that a fair summary of your recommended 2 response? 3 A: It's a fair summary. 4 Q: Did you -- did you in turn receive any 5 reply or direction from the Assistant Deputy Minister or 6 other person at the MNR with respect to feedback to this 7 document? 8 A: No, I did not. 9 Q: Did you receive any confirmation of 10 your position that the -- the Park occupation would be 11 seen as an illegal act? 12 A: I don't recall any. 13 Q: Did that not concern you? 14 A: Well, I'd made the note that this was 15 going to be at least discussed or raised at this meeting 16 on August the 2nd. 17 Q: All right. 18 A: And to see if there was, in fact, this 19 corporate support. 20 Q: And when you say that there would be a 21 meeting on Oct -- on August the 2nd, 1995, what meeting 22 are you referring to? 23 A: At that point I was aware that there 24 was going to be an Interministerial meeting convened. 25 Q: All right. Who convened that meeting?
2421 A: Julie Jai was the Chair, but I -- I 2 don't recall how -- how I was notified that we would be 3 participating by phone into that meeting. 4 Q: All right. And were you aware as to 5 what the purpose of this meeting was to be? 6 A: Very generally, I believe it was to 7 discuss some of the background of what had occurred at the 8 Army -- former Army barracks at Camp Ipperwash and also to 9 talk about some of the concerns around the possible 10 occupation of the Park. 11 12 (BRIEF PAUSE) 13 14 Q: Do you recall receiving briefing 15 materials in advance of this IMC meeting? 16 A: I received them after the meeting. 17 Q: After the meeting? 18 A: That's correct. 19 Q: Did you participate in this meeting, 20 directly? 21 A: By conference call. 22 Q: All right. Was this the first -- your 23 first ever participation in an Interministerial Committee 24 meeting? 25 A: Yes.
2431 Q: And can you tell me why it is that you 2 were invited or why -- why you participated in this 3 meeting; what was your role? 4 A: My understanding was to try and 5 convey, sort of, a field level perspective, if you will, 6 to the meeting participants. 7 Q: A field level perspective? An on the 8 ground perspective? 9 A: Correct. 10 Q: As opposed to a broader policy 11 perspective? 12 A: Correct. 13 Q: Now, I'd like -- I'm going to refer 14 you to a document. Commissioner, I'm going to put it on 15 the screen because the document in the tab is not 16 complete, which I only discovered... 17 18 (BRIEF PAUSE) 19 20 Q: Now, this is Inquiry Document Number 21 1012232. And it's Exhibit P-498. And perhaps you would - 22 - I'm going to have you look at this. We have a partial 23 copy in your documents book at Tab 22. 24 25 (BRIEF PAUSE)
2441 Q: And you'll see that there's a fax 2 cover sheet dated August the 2nd, 1995 at 11:36 a.m. it 3 would appear and attached to it is an agenda. And there's 4 a note to you on the second page. I can... 5 6 (BRIEF PAUSE) 7 8 A: This was faxed up at 17:46? 9 Q: And -- yes, this -- well, it looks 10 like this page was faxed at 17:46. Thank you. 11 A: Yeah, okay. 12 Q: All right. You did receive this 13 package though, ultimately? 14 A: Yes, it looks familiar, yeah. 15 Q: Do you recall receiving then this 16 document as part of your briefing package. It's entitled, 17 Appendix Guidelines For Responding to Aboriginal 18 Emergencies (Blockades), and it's a three (3) page 19 document? 20 A: Yes. 21 Q: And it set out the -- essentially the 22 powers and responsibilities of the Interministerial 23 Committee? 24 A: Yes. 25 Q: All right. Now, in advance of your
2451 participating at this meeting, had you been briefed or 2 prepared or informed about these powers and 3 responsibilities of -- of the IMC? 4 A: No. 5 Q: And so, the first -- the first -- 6 A: I think it was covered but I don't 7 really that except from looking at my notes but I believe 8 the purpose and responsibilities, et cetera, of the 9 Committee were covered in the first part of that meeting I 10 think. At least that my general knowledge. 11 Q: Let me just refer you to a further 12 part of the guidelines. Item 10 indicates that: 13 "The objectives of the Committee are to 14 provide provincial reaction to any 15 Aboriginal blockade, act as a clearing 16 house for information regarding any 17 blockade, ensure a timely exchange in 18 information, formulate any provincial 19 negotiating position on substantive 20 issues if such is required, and to 21 negotiate the removal of any blockade." 22 Now, were you specifically aware of those 23 objectives prior to your attendance at the August 2nd 24 meeting or -- or during the course of that attendance? 25 A: Not prior to but I may have been --
2461 some of these points may have been covered in the general 2 term for our benefit at the meeting. I don't have 3 specific recollection. It's just mentioned in one of my 4 notes -- 5 Q: Is it fair to say that you would have 6 read this document later in the day? 7 A: Afterwards, yes. 8 Q: All right. So, by the end of the day 9 you were informed of these objectives? 10 A: Yes. 11 Q: All right. And the other item I want 12 to draw your attention to is Item 11 which outlines the 13 Committee's discretionary powers. It says that: 14 "The Committee will have discretionary 15 powers to define problems, agree to 16 negotiating agenda with all parties, 17 make decisions on third-party 18 intervention, appoint a 19 facilitator/negotiator, involve the 20 Indian Commission of Ontario, second 21 Ontario Public Servants on an emergency 22 basis and recommend that legal action be 23 taken." 24 So, again, do you recall whether these 25 items were reviewed at the August 2nd meeting?
2471 A: I can't recall specifically whether 2 they were gone over in the same form that you just went 3 over them. 4 Q: All right. But, you became aware of 5 them by the end of the day? 6 A: That's correct. 7 Q: And also that when the -- the 8 reference to negotiations referred to the ability to 9 negotiate a resolution of the physical occupation but not 10 the underlying issues which caused -- 11 A: That's right. 12 Q: -- the occupation, if you will. 13 A: Yes. 14 Q: Thank you. All right. Now, you 15 indicated that you participated by telephone conference, 16 were you absent during any part of this meeting on August 17 the 2nd, 1995? 18 A: I don't believe so. 19 Q: All right. And do you recall what 20 generally transpired at this meeting? 21 A: Only in a very general way that we 22 participated by teleconference, that we were -- had been 23 asked to prepare some sort of background material to talk 24 about, some updates. 25 Q: All right. Did you play an active
2481 role in this meeting? 2 A: I think I participated in terms of 3 providing some of the updates, correct. 4 Q: All right. Will it assist you in 5 refreshing your memory if we looked at the minutes of the 6 meeting? 7 A: Would it help me? 8 Q: Yes. 9 A: I'm afraid not. 10 Q: All right. Well, let's -- I'm going 11 to take you in any event -- 12 A: Only because -- I'm sorry. By way of 13 explanation there was Mr. Baldwin and myself 14 participating. And I can't recall who was saying what. 15 Q: No. And we'll review that as we go 16 through the minutes. Let me take you to Tab 23, it's 17 Inquiry Document Number 1011682. It's already been filed 18 as Exhibit P-506. And you are shown as being on the 19 distribution list. 20 Do you recall receiving a copy of these 21 meeting notes of the Emergency Planning for Aboriginal 22 Issues Interministerial Committee dated August 2, 1995? 23 A: Yes. 24 Q: And did you review the minutes at the 25 time you received them?
2491 A: Then, or shortly thereafter. 2 Q: All right. Did you detect any 3 significant errors in them? 4 A: No. Not that I can recall. 5 Q: Now, you indicated that this was the 6 first IMC meeting you had ever participated in? 7 A: That's correct. 8 Q: And you participated by telephone with 9 Ron Baldwin? 10 A: Correct. 11 Q: Was he in the same room as you. 12 A: No. 13 Q: All right. So, he was on a separate 14 telephone? 15 A: That's correct. 16 Q: Now, looking at the list of attendees 17 under the meeting notes did you know any of these 18 individuals in advance such as to be able to recognize 19 their voice during the course of this conference call? 20 A: I might have noticed or recognized 21 Peter Allen's voice and Ron Baldwin's voice and that would 22 be it. 23 Q: That would be it. You wouldn't have 24 recognized Julie Jai or any of the others? 25 A: Possibility, Barry Jones, but I -- I
2501 wasn't very familiar with Barry. 2 Q: Okay. Fair enough. So -- all right. 3 Had -- had you met Jeff Bangs or Mel Crystal before? 4 A: I don't believe so. 5 Q: Fair enough. So, was there a general 6 introduction of people at the beginning of the -- the 7 meeting to introduce themselves to the people on the 8 phone? 9 A: I would have assumed so, I -- I can't 10 recall specifically. 11 Q: You can't recall? Okay. 12 A: No. 13 Q: Did you take any notes of this 14 meeting? 15 A: No, I did not. 16 Q: All right. Now, you indicated that 17 you provided some of the informational background to the 18 IMC. 19 Now, that was your -- your role? 20 A: Correct. 21 Q: And in looking at the minutes can you 22 identify for me starting with page 1 which pieces of 23 information you would have conveyed or you did convey? 24 A: Nothing I don't believe in, item 25 number 1.
2511 Q: Okay. Item 2? 2 A: No. 3 Q: Item 3? Is this the discussion of 4 MNR -- 5 A: Yes. 6 Q: -- concerns and options? All right. 7 Did you provide the information under the heading of, 8 Water? 9 A: Yes, I would more than likely have -- 10 most likely have provided that information. 11 Q: And under, "Road Access", do you 12 recall whether you provided that information? 13 A: I can't recall or if that was someone 14 else. 15 Q: Okay. How about: 16 "Assumption of Control of the Park -- 17 Provincial Park?" 18 The -- the concern that: 19 "Members of the Stoney Point Group may 20 try to occupy the Park. MNR is 21 concerned about corporate support should 22 such a crisis occur." 23 Do you recall whether you provided that 24 information? 25 A: I can't recall specifically.
2521 Q: But this was information you knew? 2 A: Yes. 3 Q: All right. 4 A: It was information that I was seeking, 5 yes. 6 Q: And there then appears to have been a 7 discussion about a risk assessment with respect to the 8 continuing use of the Park? 9 A: Correct. 10 Q: All right. And do you recall what -- 11 whether any resolution or agreement was achieved at the 12 IMC concerning the level of assessment of the Park, the 13 risk, sorry, of the Park? 14 A: The level of risk I think was deemed 15 to be acceptable or minimal and that field level staff of 16 both the OPP and MNR were in the best position to monitor 17 and keep an eye on things basically. 18 Q: And did that assessment -- did you 19 concur with that assessment? 20 A: Yes. 21 Q: Was there also a discussion of the -- 22 the next steps or what -- what should be done with respect 23 to the ongoing situation at the Park? 24 A: I'd have to refer to the minutes to 25 see if there was anything recorded there?
2531 Q: Why don't you have a look at item 5 on 2 page 5 and see if that refreshes your memory? 3 4 (BRIEF PAUSE) 5 6 A: Yes, I see a few additional items 7 there. 8 Q: Is it fair to say that there was a 9 consensus that the OPP and MNR would continue to monitor 10 the situation? 11 A: Yes, that's fair. 12 Q: And that in the event the situation 13 escalated to the point at which there was a real risk to 14 public safety, that the MNR and OPP would be free to act, 15 as appropriate, without the necessity of coming back to 16 the IMC? 17 A: That was my understanding, yes. 18 Q: That the Park staff would continue to 19 inform Park campers and users of the Stoney Point 20 occupation of the Base and to basically stay off DND 21 property? 22 A: Yes. 23 Q: And that the MNR and OPP have 24 developed and would continue to develop a contingency plan 25 in the event of an emergency, for example, to structure a
2541 safe evacuation of the Park? 2 A: That's correct. 3 Q: And these were all things that you 4 were in agreement with? 5 A: Yes. 6 Q: And to your knowledge was this 7 acceptable to the MNR? 8 A: Yes. 9 Q: Now, do you recall whether or not 10 Inspector Carson's advice to you that the OPP would expect 11 the MNR to participate in getting an injunction, was that 12 relayed to the IMC at this meeting? 13 A: I don't have a specific recollection 14 if that topic came up? 15 Q: All right. Did anyone else, in other 16 words, did Mr. Baldwin or Mr. Allen, to your knowledge, 17 were they aware of that advice, because this -- this 18 advice came from you, right? 19 A: They would have received copies of the 20 e-mail. 21 Q: All right. Can you help me out with - 22 - with, well, let me ask you this: Did you raise this, 23 this piece of information, with the IMC, for their 24 benefit? 25 A: About the Injunction?
2551 Q: Yes. The possibility that an 2 injunction might have to be obtained? 3 A: I don't -- no, I don't think I did. 4 Q: And can you tell me why? 5 A: Not at this point, I don't have a 6 recollection as to why that didn't come up. 7 Q: All right. And was there any advice 8 relayed to the IMC that you can recall, that there was an 9 assertion by the Stoney Point group of the possible 10 existence of burial grounds at the Park, as being one of 11 the possible motivating factors for an occupation? 12 A: I haven't -- I don't have a 13 recollection of that being discussed at the -- 14 Q: All right. 15 A: It may have been, but I don't have a 16 recollection of it being discussed. 17 Q: And I see that neither of these items 18 are reflected in the minutes? 19 A: That's correct. 20 Q: Now, was there any discussion at this 21 meeting that you can recall with respect to the 22 possibility of taking preventative measures, aside from 23 monitoring, but actual pro-active preventative measures 24 like perhaps searching out an appropriate mediator or 25 facilitator, or conducting additional research to
2561 understand the motivations, perhaps, of -- of a possible 2 occupation? 3 A: Not to my knowledge, that wasn't 4 approached. 5 Q: Did it cross your mind at this time, 6 can you recall, if you turn your mind to this possibility? 7 A: It didn't cross my mind at that point. 8 Q: All right. 9 A: And maybe that was just because I 10 wasn't as familiar with the workings of -- and -- and the 11 different responsibilities that the Committee had, but it 12 didn't cross my mind. 13 Q: All right. Was there any suggestion 14 that the Kettle and Stony Point Band might be approached 15 at this time for -- for their suggestions or assistance, 16 on how to deal with this situation? 17 A: I don't believe so, but I don't have a 18 good recollection, I'm afraid. 19 Q: Okay. Were you asked to undertake any 20 tasks or follow-up by -- by the IMC, at the conclusion of 21 this meeting? 22 A: No, I was not. 23 Q: All right. Do you recall having -- do 24 you recall contacting Julie Jai the next day, August the 25 3rd, 1995?
2571 A: No. 2 Q: Perhaps you'd look at Tab 24 and it is 3 Document Number 1003507. It's been previously -- 4 A: Right. 5 Q: -- entered as Exhibit P-647. This 6 appears to be a, perhaps transcription of a voice mail 7 dated August 3, 1995. 8 Perhaps you can read that and advise me as 9 to whether that refreshes your recollection? 10 11 (BRIEF PAUSE) 12 13 A: It appears to be a -- a response to a 14 request that she'd made at the meeting the previous day 15 for some further information on the material that we were 16 handing out to campers and visitors that were coming into 17 the Park about the sensitivities of going onto the Army 18 Base beach. 19 Q: And then did you have a followup 20 telephone call with here on August the 4th, 1995? 21 A: It appears that way. 22 Q: The note here indicates the following? 23 "The cultural site is the Stoney Point, 24 a collection point for arrowheads, et 25 cetera. Rumours of a burial site in
2581 Park, but not confirmed. There is a 2 burial site on the Military Base for 3 sure." 4 Now, do you recall conveying that 5 information to Ms. Jai? 6 A: No, I don't, but... 7 Q: Is this information that you were 8 aware of, however, as of August the 4th? 9 A: Yes, I must have been. 10 Q: We -- we know that you knew about the 11 cultural sites. 12 A: Right. 13 Q: We know that you knew about rumours of 14 a burial site at the Park. 15 A: Right. 16 Q: And the new information perhaps is 17 that there was a burial site confirmed at Camp Ipperwash. 18 A: Right. 19 Q: Fair enough. Now, did you provide a 20 briefing of the results of the IMC meeting to your 21 assistant deputy minister? 22 A: Yes, I did. 23 Q: Perhaps you'd go to Tab 26, please, 24 Inquiry Document Number 1012238. It appears to be an e- 25 mail from yourself to Patricia Malcolmson dated August 4,
2591 1995. 2 Can you -- do you recognize that e-mail? 3 A: Yes. 4 Q: And is that your report to your 5 assistant deputy minister with respect to the IMC and also 6 an update with respect to the Provincial Park? 7 A: That's correct. 8 Q: I'd like to make this the next 9 exhibit, please? 10 THE REGISTRAR: P-779, Your Honour. 11 12 --- EXHIBIT NO. P-779: Document Number 1012238. E- 13 mail Briefing Note from Peter 14 Sturdy to Patricia Malcolmson, 15 August 4th, '95. 16 17 CONTINUED BY MS. SUSAN VELLA: 18 Q: You -- you're reporting to your 19 assistance deputy minister that the following items were 20 agreed to by the Committee as they relate to Ipperwash 21 Park; that public campers and day visitors and staff 22 safety are of utmost concern both now and in the immediate 23 future (note Park closes on September 4, 1995). 24 And perhaps I'll just pause on that. When 25 you indicated that the Park would close on September the
2601 4th what --- what does that mean? What type of Park 2 closure? 3 A: Essentially, the Park closes at that 4 point to the visiting public, the paying visiting public. 5 Q: All right. And -- 6 A: So typically parks would close -- many 7 of the smaller parks would close on the Labour Day 8 weekend. 9 Q: And would -- would -- in practice, 10 would that mean that the public could not enter the Park 11 after the closure? 12 A: No, it was -- vehicle access would 13 have been closed off. We wouldn't have been selling 14 permits, but even today in provincial parks that close on 15 Labour Day or Thanksgiving the public are welcome to enter 16 by foot and use those facilities as they do right the way 17 through until, you know, well into the fall. 18 Q: Okay. Fair enough. Second, you 19 report that the current information from the OPP and their 20 assessment of the situation does not indicate a necessity 21 to close the Park at this point. This action might well 22 play into the hands of the Stoney Point Group occupying 23 Camp Ipperwash. 24 Now, can you tell me what you meant by that 25 second sentence?
2611 A: I think it reflected a desire to 2 maintain things as normal as possible. And that a 3 premature closing of the Park might be seen by some as 4 being the inappropriate action to take. 5 Q: You mean like an invitation to occupy 6 the Park? 7 A: That or that we had somehow accepted 8 the fact that -- that an occupation might be a possibility 9 and therefore now is the time to close it down. 10 Q: All right. So giving legitimacy to 11 the rumour, in other words. 12 A: Hmm hmm. 13 Q: All right. 14 "3. Water supply to the Park is 15 available. An alternative pumping 16 system will be operational by August 11 17 and this will supply water to the Park 18 independent of a distribution system 19 from Camp Ipperwash." 20 So you had that potential problem resolved 21 by then? 22 A: Pretty much. We had a plan in place 23 that was going to solve that. 24 Q: "4. The land base of Ipperwash 25 Provincial Park was acquired following
2621 normal processes. There are no formal 2 land claims filed." 3 Now, just pausing on that for a moment. 4 You -- you've used the term alternatively, "formal land 5 claim" and "official land claim." 6 I take -- would that -- does that -- do 7 those terms exclude the assertions of ownership or use 8 over the Park that had been previously made by the Stoney 9 Point Group, in '93? 10 A: I'm sorry the -- the -- I picked up 11 the point on formal land claim and -- and -- 12 Q: Correct. 13 A: Yeah. 14 Q: I take it that that excluded the fact 15 that there was an assertion communicated by the Stoney 16 Point First Nation that they had ownership and possessory 17 rights over the Park. 18 A: That's correct. 19 Q: You were -- so you're referring, very 20 specifically, to a court or a government process? 21 A: That's correct. 22 Q: Thank you. And: 23 "5. The Committee felt that the field 24 level staff of both the OPP and MNR were 25 in the best position to deal with minor
2631 issues as they arose in the event that a 2 major incident, e.g. illegal occupation 3 by large numbers occurred, the Committee 4 should be advised to provide further 5 direction." 6 A: That's correct. 7 Q: All right. You then indicate that 8 you're reporting on the current developments at the Park. 9 You indicate that there have been additional MNR security 10 assigned for a long weekend in the form of three (3) 11 conservation officers. 12 A: Yes. 13 Q: And you've explained before that these 14 are officers or MNR personnel who carry firearms. 15 A: That's correct. 16 Q: And I take it are -- are more 17 experienced and better trained than your -- your park 18 wardens in that respect? 19 A: That would be correct. 20 Q: All right. And the last point on page 21 2 you indicate: 22 "The OPP field staff have indicated they 23 are comfortable with staff and resources 24 available with communications, co- 25 operation of MNR Park staff and that
2641 they do not feel the level of public 2 risk to be high." 3 A: That's correct. 4 Q: And that's -- it's with respect to use 5 of the Park at this time? 6 A: Yes. 7 Q: And you accepted that assessment. 8 A: Yes. 9 Q: And you're conveying that to your 10 assistant deputy minister? 11 A: Yes. 12 Q: Okay. Now did you continue to have 13 direct contact with the OPP in relation to the ongoing 14 developments at the Park, from this point forward? 15 A: Personally? Myself? 16 Q: Yourself personally. 17 A: There may have been other occasions 18 when I had contact with Inspector Carson just to ask him 19 the questions around public and staff safety. 20 Q: Do you recall receiving a request from 21 then Chief Superintendent Coles for information concerning 22 the Park? 23 A: Indirectly through our district 24 office, yes. 25 Q: All right. And perhaps you could go
2651 then to Tab 27, Inquiry Document Number 1008863. It's an 2 e-mail that's dated August of 1995, I can't be more 3 precise, from Dan Elliott to yourself and -- 4 A: Correct. 5 Q: -- it reflects a request for 6 information from Chief Superintendent Coles? 7 A: Yes. 8 Q: And, in particular, were you requested 9 to provide proof of MNR's clear title to the Ipperwash 10 Provincial Park? 11 A: That's one (1) of the requests. 12 Q: And the statement of the MNR position 13 if native occupation occurs? 14 A: Correct. 15 Q: And a letter to the OPP with respect 16 to the MNR position statement? 17 A: Correct. 18 Q: Now, did you -- did you provide this 19 information to the Chief Superintendent? 20 A: I don't believe that there was a 21 letter provided. At least I haven't seen -- whether I -- 22 I drafted something or whether something was drafted in 23 our district. So I'm not aware of the letter. 24 Q: All right. Do you recall whether you 25 provided him with title documentation?
2661 A: I did provide Inspector Carson with 2 title information. 3 Q: Is that later on in the month of 4 August? 5 A: Yes. 6 Q: All right. I'd like to make this the 7 next exhibit, please? 8 THE REGISTRAR: P-780, Your Honour. 9 10 --- EXHIBIT NO. P-780: Document number 1008863. E- 11 mail from Dan Elliott to Peter 12 Sturdy re. Request from OPP, 13 Aug 17th, '95. 14 15 CONTINUED BY MS. SUSAN VELLA: 16 Q: And did you have an understanding as 17 to why it was the OPP wanted, very specifically, proof of 18 the MNR's title to the Park? 19 A: This was my -- my first experience 20 going through an event like this so I don't believe at 21 that point it would have been well explained why -- what 22 the significance was of the title documents, that they 23 required those specifically themselves. 24 Q: Okay. So you -- you didn't have an 25 understanding as to why he wanted this?
2671 A: No. 2 Q: Okay. 3 A: No. 4 Q: And perhaps you would go to Tab 28 5 next, please? It's Document Number 1009256, it's an e- 6 mail to yourself from John Cameron, Resource Stewardship 7 and Development regarding Ipperwash Park acquisition. 8 Do you recall receiving this e-mail? 9 A: Yes, I recall the e-mail. 10 Q: And is this in response to a request 11 from you asking to document the Ministry's claim to 12 ownership of the Park? 13 A: Correct. 14 Q: All right. And to the best of your 15 knowledge does this set out that information? 16 A: I'm sorry? 17 Q: Sorry. It appears here that he's -- 18 that he's informing you that the record has no -- that the 19 office has no land acquisition records? 20 A: That's correct. 21 Q: And that the staff have no knowledge 22 of the 1993 initiative, the document -- MNR's acquisition 23 deeds for Ipperwash Park and so essentially he's telling 24 you to go somewhere else; is that right? 25 A: To the Registry office.
2681 Q: Okay. Fair enough. 2 3 (BRIEF PAUSE) 4 5 Q: Now, you've referred in your testimony 6 earlier to the fact that there was a contingency plan that 7 had been developed. And I'd like to take you to Tab 29 8 Document Number 1008868, this is an e-mail to yourself 9 from Ed Vervoort, MNR Compliance Specialist, dated August 10 31st, 1995? 11 A: Correct. 12 Q: And did you ask him to -- to provide 13 you with a copy of the contingency plan and the 14 background? 15 A: I'm not sure if this wasn't in 16 preparation for a meeting that we were going to be having 17 the following day and the following morning amongst the 18 district staff, that this was provided to me. 19 Q: All right. In any event it was 20 provided to you? 21 A: Correct. 22 Q: And it records, essentially, a history 23 with respect to, if I can put it this way, assertions made 24 by the Stoney Point Group with respect to its entitlement 25 to the use and possession of the Park?
2691 A: Yes. 2 Q: And attached to it is a document 3 entitled, Ipperwash Provincial Park Draft Emergency 4 Contingency Plan. And is this the document to which was - 5 - you were referring to earlier in your testimony? 6 A: That's correct. 7 Q: All right. And have you seen this 8 document prior to August the 31st? 9 A: No, I had not? 10 Q: And you said this was given to you in 11 preparation for a meeting that was to occur on September 12 the 1st? 13 A: That's correct. 14 Q: All right. What was your 15 understanding of the purpose of this Emergency Contingency 16 Plan? 17 A: My understanding was that it was a 18 plan that was put together in the event that a situation 19 arose where, in this case, Ipperwash Provincial Park had 20 to be evacuated of campers and day users, because of some 21 situation. 22 Q: And do you know whether it was 23 developed in response to the 1993 Notices that were served 24 by the Stony Point First Nation asserting entitlement to 25 the Park?
2701 A: It's my understanding that this 2 document has its roots back in 1993, and was developed 3 actually by the former Compliance Specialist for the 4 District. 5 Q: All right. So this is the Contingency 6 Plan that the MNR would implement in the event that the 7 Park was occupied and there was a need to evacuate? 8 A: Correct. 9 Q: Okay. And the first part addresses 10 the staffing, and specifically references a Critical 11 Incident Team? 12 A: That's right. 13 Q: And a reporting mechanism. 14 Part 2 outlines the roles and 15 responsibilities of the various personnel involved; is 16 that fair? 17 A: Yes, it does. 18 Q: And it indicates specifically that, 19 with respect to the Critical Incident Team, that they 20 would occupy a place at the OPP Command Centre, Forest 21 Detachment, to liaise with the OPP and other involved 22 agencies. 23 A: Yes, that -- 24 Q: Is that your -- was it your 25 understanding that that was something that was negotiated,
2711 or at least that -- that was discussed with the OPP in 2 advance? 3 A: There are previous versions to this 4 where, on the distribution, it's indicated that copies 5 were made available to, and shared with and discussed 6 with, Inspector Carson and others. 7 Q: Prior to this date, prior to August of 8 '95? 9 A: Prior to August, yes. 10 Q: And another role of the Critical 11 Incident Team would be to coordinate and direct all 12 actions of MNR staff during the critical incident? 13 A: That's correct. 14 Q: And also to inform Senior MNR Staff of 15 ongoing events surrounding the situation and recommend 16 action and/or request direction from Senior Staff? 17 A: That's correct. 18 Q: In other words, at least this document 19 envisioned that there would be MNR personnel at the 20 Command Post, who would then communicate with Senior 21 Personnel in the MNR? 22 A: Yes. 23 Q: Over on Part III, the procedures for 24 the evacuation, should it become necessary, are outlined? 25 A: That's correct.
2721 Q: In particular, it indicates that the 2 evacuation procedure will be followed should a state of 3 emergency be declared by the Ontario Provincial Police. 4 In other words, the OPP would trigger the -- the 5 application of this part of the plan; is that fair? 6 A: That's fair. 7 Q: And then it sets up the actual 8 process, which I won't take you through; is that fair? 9 A: Okay. 10 Q: And then Part IV on the next page is 11 the Security Plan. And this of course assumes that the 12 evacuation has been successful. It indicates that: 13 "Once the Park has been evacuated and is 14 secure, barriers are erected so as to 15 close off all entrances, staff will be 16 assigned to each location to ensure no 17 one re-enters the Park. 18 In addition, signs will be posted 19 indicating to all persons that the Park 20 is closed under the authority of the 21 Provincial Parks Act, Section 16, and 22 under Section 32 of the Provincial Park 23 Act [sorry], Provincial Park 24 Regulations. Any person found inside 25 the Park will be dealt with accordingly
2731 under the Trespass to Property Act. The 2 staff assigned will perform vehicle and 3 foot patrol throughout the Park to 4 ensure compliance." 5 Is that right? 6 A: Yes. 7 Q: So this envisions that there's not 8 only an evacuation then of the staff and Park users, but 9 of the occupiers; is that right? Or the attempted 10 occupiers? 11 A: No, that's not the way I interpret it. 12 Q: Okay, how do you interpret it? 13 A: My interpretation would be that -- 14 that this plan would be put into effect if there was a 15 perceived occupation to take place, that staff and 16 visitors to the Park would be evacuated and then there 17 would be a perimeter or secure perimeter established. 18 Q: To keep the occupiers in and everyone 19 else out? 20 A: No. I think it assumes that this -- 21 this all happens before anyone comes to occupy the Park. 22 Q: I see, okay. That was your 23 understanding of this plan at that time? 24 A: Hmm hmm. 25 Q: Yes?
2741 A: Yes. 2 Q: Thank you. 3 MS. SUSAN VELLA: All right, and I do 4 note, Commissioner, that there are home phone numbers 5 listed here. I take it that My Friend would probably 6 appreciate those being excised from the official record, 7 the home numbers of the individuals? 8 COMMISSIONER SIDNEY LINDEN: Yes, I don't 9 think they're needed in the document. 10 MS. SUSAN VELLA: I'd like to make this 11 the -- sorry. 12 Is that all right? 13 COMMISSIONER SIDNEY LINDEN: Is that 14 right Mr. Myrka ? 15 MR. WALTER MYRKA: That's correct. 16 COMMISSIONER SIDNEY LINDEN: Yes, so 17 you're all -- 18 MR. WALTER MYRKA: If we are going to make 19 this an exhibit, then the personal information should be 20 removed. 21 COMMISSIONER SIDNEY LINDEN: Should be 22 excised. 23 MS. SUSAN VELLA: So, thank you. And I 24 would like to make this the next exhibit, with that 25 condition, Commissioner.
2751 THE REGISTRAR: P-781, Your Honour. 2 3 --- EXHIBIT NO. P-781: Document Number 1008868. E- 4 mail from Ed Vervoort to Peter 5 Sturdy re. Ipperwash security 6 plan, Aug 31st, '95. 7 8 CONTINUED BY MS. SUSAN VELLA: 9 Q: Now, I just have one more question for 10 you on -- with respect to this document and I'm going to 11 the e-mail portion of it now, on the last page, last 12 sentence, last two (2) sentences. 13 Second page of the e-mail. It reads as 14 follows: 15 "As the incidents for the most have been 16 outside of the jurisdiction of the 17 Ministry of Natural Resources, we will 18 continue to remain as a neutral party, 19 while maintaining in close contact with 20 the Ontario Provincial Police, should 21 implementation of this plan be 22 required." 23 Now, did you have an understanding as to 24 what he was referring to when he talked about the 25 incidents, for the most part, being outside of the
2761 jurisdiction of the MNR? 2 A: No, I didn't. 3 Q: All right. Or what he meant -- what 4 you understood him to mean when he communicated that the 5 MNR would continue to be a neutral party? 6 7 (BRIEF PAUSE) 8 9 A: I'd be making an assumption, I'm 10 afraid. 11 Q: All right, no, I -- I was just looking 12 for your understanding. And I also note that the -- the 13 continency plan is marked as a draft plan. 14 To your knowledge, was this finalised by 15 or before September the 4th, 1995? 16 A: No. 17 Q: All right. Was this intended to be in 18 practice, followed, notwithstanding it being a draft? I'm 19 trying to understand the status of this document. 20 A: Yes, that's my understanding. 21 Q: Okay, it reflected the practice that 22 was to be implemented. 23 A: That's correct. 24 Q: Thank you. And it was specifically 25 tailored to deal with an occupation of the Ipperwash Park
2771 by aboriginal people? 2 A: That's right. 3 4 (BRIEF PAUSE) 5 6 Q: To your knowledge, were there any 7 significant changes made to this plan between August 31st 8 and September 4th? 9 A: There was a change in the make up of 10 the critical incident team. 11 Q: And can you just point out what that 12 change was? 13 A: In the document itself it's listed 14 that Ron Baldwin, the district manager, would be a 15 participant in that. 16 Q: This is under Part I, staffing? 17 A: I'm sorry, yes. 18 Q: That's fine. 19 A: Part 1, staffing. In fact, it 20 remained as part of that team that I was identified at 21 that point to be the lead -- 22 Q: So -- 23 A: -- and to assume the responsibilities 24 of the communications with senior management and field -- 25 field staff.
2781 Q: Okay, all right. So just so that I'm 2 clear, as of September the 4th from the MNR's perspective, 3 in the event that an evacuation had to occur at Ipperwash 4 Park as a result of Aboriginal occupation, this was the 5 plan that was to be implemented? 6 A: Yes. 7 Q: Now we've heard evidence that a 8 meeting was held on September the 1st, 1995 at the London 9 OPP Detachment. 10 Are you aware of that? 11 A: I participated in that, yes. 12 Q: Thank you. And who convened this 13 meeting? 14 A: I believe it was Inspector Carson. 15 Q: And were you informed of what the 16 general purpose of this meeting was to be? 17 A: I think it was generally to give us a 18 -- a briefing on what the expectations were, what their 19 roles were, what our roles would be, what might likely 20 happen, how we might respond to that. 21 Q: And what was the subject matter? 22 Respond to what? 23 A: I'm sorry. A -- an occupation likely 24 -- anticipated occupation. 25 Q: Of the Ipperwash Provincial Park?
2791 A: That's correct. 2 Q: By Aboriginal people? 3 A: That's correct. 4 Q: And by the Stony Point Group in 5 particular? 6 A: Yes. 7 Q: And do you recall whether anyone in 8 addition to -- anyone accompanied you from the MNR? 9 A: Yes, they did. 10 Q: Who -- who that was that? 11 A: Ron Baldwin, the district manager, Ed 12 Vervoort and Les Kobayashi. 13 Q: Was there anyone else from government 14 at this meeting? 15 A: Not to my recollection. 16 Q: And was -- was anyone else in 17 attendance aside from the four (4) of you and Inspector 18 Carson? 19 A: There may have been but I -- my 20 recollection is that it was a relatively short meeting and 21 there was just Inspector Carson. 22 Q: You have no recollection of anyone 23 from the Federal Government being there for example? 24 A: No. 25 Q: And can you tell me what information
2801 was conveyed to you by Inspector Carson at this meeting? 2 A: Well I can remember that when we -- I 3 believe the meeting was held in the -- in the OPP offices 4 in London. I believe it was a meeting room in the 5 basement or a boardroom in the basement. 6 And what struck me when we walked in was a 7 blackboard in front of -- a fairly long boardroom meeting 8 room that had some -- some words on it. Something to the 9 effect of resolution through peaceful negotiations or 10 something to that affect. 11 Q: All right. And did that leave you 12 with an impression? 13 A: Yes. 14 Q: Why? 15 A: Because that seemed to be the starting 16 point. I mean the fact that it was up on the blackboard 17 that we were seeking to resolve this through peaceful 18 negotiations. 19 Q: All right. And do you recall any -- 20 any other information being conveyed to you? 21 For example, what the OPP's information 22 concerning a possible occupation was? 23 A: My recollection is just that they 24 seemed to feel that they had pretty good information or 25 intelligence information that there was a strong
2811 likelihood the Park would be occupied either Monday or 2 Tuesday and this meeting was occurring on the Friday. 3 We talked about MNR's role and the OPP's 4 role. 5 Q: And can you tell me what -- what he 6 conveyed to you his expectations were? 7 A: His -- he saw this as a policing 8 matter. He described it to us. He looed upon MNR as 9 being in a capacity which should be more of a support 10 capacity. He'd be looking at us for instance, I think the 11 injunction came up again, to secure an injunction, to 12 assist with the communications certainly if an occupation 13 took place there would be media and questions around the 14 Park. 15 And the Park facts and figures and things. 16 And I think it was also to help with, sort of, logistical 17 support and information about the Park and what kind of 18 equipment we might have had stored there and so on and so 19 forth, accommodation, food, things like that. 20 Q: Do you recall whether he made any 21 requests or recommendations to you on behalf of the MNR as 22 to any measures that should be taken in anticipation of 23 this possibility or probability? 24 A: We did talk about a scenario whereby 25 Les Kobayashi would serve a Notice of Trespass to anyone
2821 that occupied the Park and that an appropriate letter and 2 signs or notices that could be posted -- 3 Q: Hmm hmm. 4 A: -- should be prepared. 5 Q: Did Inspector Carson canvass with you 6 the possibility that -- that any of your park officials 7 might assist in any discussions or facilitating any 8 discussions with the occupiers, should that happen? 9 A: I don't recall that being one (1) of 10 the subjects that came up. 11 Q: All right. Was the -- the existence 12 of the MNR's contingency plan raised at all during this -- 13 this meeting? 14 A: I don't think so because Inspector 15 Carson, from my understanding, already had a copy of this 16 and had -- had received a copy from Ed Vervoort. 17 Q: All right. But did you not raise with 18 him where that contingency plan fit into his expectations? 19 A: Oh, I'm -- well, I think we in all 20 likelihood would have discussed who the lead contacts were 21 within our Critical Incident team now, that -- that had 22 changed. 23 Q: All right. But the procedures, did 24 you have any understanding as to which procedures would be 25 followed, procedures in the contingency plan or procedures
2831 -- were there different procedures suggested by Carson at 2 this meeting? 3 A: In terms of evacuation I don't recall 4 him suggesting any different procedures at this time. 5 Q: Okay. Now, do you recall making a 6 report of this meeting to -- sorry, subsequent to the 7 occupation? 8 A: Yes. 9 Q: And perhaps you would go at this time 10 to Tab 34 Inquiry Document 1009247 e-mail from yourself 11 dated September 5th, 1995 at 6:56 a.m. to a distribution 12 list including Peter Allen and Norm Richards. 13 And for the time being I just want to take 14 you to page 2 under, "Background." 15 And does this set out your report of the 16 meeting held on September 1st that you were just referring 17 to? 18 A: That's correct. 19 Q: And does it accurately set out your 20 recollection of that meeting? 21 A: To the best of my knowledge, yes. 22 Q: And you've indicated in the third 23 paragraph for example last line: 24 "Efforts would be on [quote] containing 25 and negotiating a peaceful resolution."
2841 [close quote] 2 Do you recall where that quotation was 3 from? 4 A: That's probably a more accurate 5 quotation of what was put up on the blackboard than what I 6 had suggested earlier actually. 7 Q: All right. And following is a 8 sequence of events which Inspector Carson predicted or -- 9 A: Correct. 10 Q: -- conveyed to you; that it would be a 11 small group occupying the Park: 12 "The MNR closes the Park and requests 13 group to leave. MNR serves note -- 14 group with notice of violation to 15 Trespass to Property Act. OPP requests 16 group to leave Park. If group refuses 17 MNR would seek injunction. OPP would 18 take lead as a policing matter and 19 attempt to carry out or enforce 20 injunction." 21 Now, is that an accurate summary of -- of 22 your understanding of Inspector Carson's -- what he -- 23 what he conveyed to you at the September 1st meeting? 24 A: That's correct. 25 Q: And a little later the next bullet
2851 reads: 2 "Inspector Carson made it clear that the 3 OPP sees this as a policing matter and 4 it's the MNR's role to be one of 5 assisting with the obtaining of an 6 injunction, assisting in communications 7 (media) and logistical support of -- to 8 OPP (accommodation, et cetera)." 9 A: Correct. 10 Q: And then you set out the MNR's basic 11 position, namely that: 12 "Occupation is an illegal occupation, 13 MNR acquired properties from third 14 parties through normal process, there 15 are no Native land claims to Ipperwash 16 Park." 17 A: Correct. 18 Q: And was that the -- the position that 19 you communicated to Inspector Carson on September the 1st? 20 A: I believe that was communicated. 21 MS. SUSAN VELLA: I'd like to make this 22 the next exhibit, please. 23 THE REGISTRAR: P-782, Your Honour. 24 25 --- EXHIBIT NO. P-782: Document Number 1009247. E-
2861 mail from Peter Sturdy to 2 distribution list re. 3 Ipperwash, Status Report 4 number 1., Sept 5th, '95. 5 6 MS. SUSAN VELLA: And we will return to it 7 a little later in the evidence. 8 9 CONTINUED BY MS. SUSAN VELLA: 10 Q: Now, you indicated that Ms. -- 11 Inspector Carson's assessment of the risk of an occupation 12 as of September the 1st was that there was a likelihood? 13 A: Strong likelihood, that's correct. 14 Q: A strong likelihood? 15 A: Yes. 16 Q: And that it would likely occur when? 17 A: On the Monday or Tuesday. 18 Q: And were any decisions made at this 19 Meeting with respect to what actions the MNR should be 20 taking as a result of that advice? 21 A: No, I can't recall any specific items 22 that came from Inspector Carson to MNR. 23 Q: As a result of this meeting, did you 24 make any recommendations to your Assistant Deputy Minister 25 or -- or your superiors that there should be increased
2871 levels of MNR staffing at the Park over the course of the 2 Labour Day weekend? 3 A: I think we already had extra staffing 4 in place. There was OPP staff, both uniformed and plain 5 clothes'd at the Park. I felt comfortable that the level 6 of staffing, as I understood it, was adequate. 7 Q: All right. You didn't have any 8 Conservation Officers at the Park? 9 A: I believe there were some that 10 weekend, but I -- I'm pretty that three (3) out of the 11 four (4) long weekends that summer, including the Labour 12 Day weekend, we had Conservation Officers at Ipperwash. 13 Q: Do you recall whether any steps were 14 taken by the MNR as a result of this Meeting? 15 Steps with respect to the, you know, the 16 possibility of the occupation occurring on the Monday or 17 Tuesday? 18 A: I think there was just the matter of 19 one of the participants in that meeting completing a 20 Notice of Trespass letter and some signs being collected 21 up and being sent up to the Park in the event that they 22 were required. 23 Equipment and some things like that were 24 being moved out of the Park. Records, files, we had 25 concessionaire working in there from the private sector; I
2881 think he was advised to make sure that everything was 2 cleared out before the end of the long weekend. 3 Q: All right. And to your knowledge, was 4 heavy equipment in the process of being removed out of the 5 Park over the course of the Labour Day weekend? 6 A: I'm not sure it was heavy equipment, I 7 know it might have been office equipment and things like 8 that that were moved. I don't believe -- I don't believe 9 it involved heavy equipment at that point. I think that 10 was more on the day of the actual occupation, some 11 equipment was moved. 12 Q: All right. Perhaps I can take you 13 first to Tab 30, please, Inquiry Document Number 1010259, 14 an e-mail to yourself from Les Kobayashi, dated September 15 2nd, -- 16 A: Hmm hmm. 17 Q: -- 1995, at 8:15 a.m. 18 Did you request that Mr. Kobayashi prepared 19 a Trespass to -- Trespass Property Act letter? 20 A: No. That -- that actually had been a 21 task assigned to Ed Vervoort who was our enforcement 22 specialist in the Aylmer district. 23 Q: It just indicates here: 24 "Peter, I guess you still have my 25 Ipperwash files. I was hoping to use
2891 the George letter as a model. I will 2 draft what I can with without." 3 Does that refresh your memory? 4 A: He may have been getting impatient 5 with not receiving something, I'm not sure. 6 Q: All right. Can we make this the next 7 exhibit, please? 8 COMMISSIONER SIDNEY LINDEN: What tab is 9 that? 10 MS. SUSAN VELLA: I'm sorry. It's Tab 30, 11 Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Tab 30. 13 THE REGISTRAR: P-783, Your Honour. 14 15 --- EXHIBIT NO. P-783: Document Number 1010259. E- 16 mail from Les Kobayashi to 17 Peter Sturdy re: TPA letter, 18 Sept 2nd, '95. 19 20 CONTINUED BY MS. SUSAN VELLA: 21 Q: And if you would next go to Tab 31, it 22 appears to be a letter unsigned, or perhaps it's a draft 23 letter, dated September 4th, 1995, "To whom it may 24 concern," by Les Kobayashi. Is this the draft Trespass to 25 Property Act notice that was -- was prepared?
2901 A: Yes, that's correct. And I believe on 2 the signed copy there's only one(1) minor amendment, one 3 (1) minor change to the -- 4 Q: Okay. This is a -- 5 A: -- the actual wording. 6 Q: -- draft? 7 A: Yes. 8 Q: And if you continue to the fourth 9 page, there's a e-mail dated September 3rd, 1995, same 10 document at 2:08 p.m. to yourself from Les Kobayashi and 11 it appears to be providing you with a status report of the 12 measures that were being implemented as of the 3rd, at 13 Ipperwash Park. 14 Is that correct? 15 A: That's correct. 16 Q: And according to Mr. Kobayashi, 17 surveillance equipment had been installed by the OPP in 18 all facilities, is that your understanding? 19 A: My understanding was that surveillance 20 equipment was installed in two (2) facilities, not in all 21 facilities. 22 Q: I didn't hear the end. 23 A: Sorry, not in all facilities, in -- 24 Q: Which -- 25 A: -- in two (2) facilities.
2911 Q: Which facilities? 2 A: The information I had from Les was 3 that -- Les Kobayashi that is, was that the maintenance 4 building, I believe, and the office or the -- the small 5 office structure. 6 Q: The kiosk? 7 A: The kiosk. 8 Q: All right. He's reporting that a 9 remote command post site outside the Park had been 10 selected at the beach -- Crown beach closest to the Park. 11 Did you know anything about that? 12 A: I knew where the Crown beaches were so 13 I had assumed it was in one of the parking lots, so. 14 Q: All right. And that -- he indicates 15 that ten (10) more cement barriers had been ordered. 16 Do you know what that was with respect to? 17 A: No, I'm afraid I don't. 18 Q: This indicates that picnic tables will 19 be moved around Stoney Point cultural site. 20 Do you recall that? 21 A: No. 22 Q: Keys to all facilities were in the 23 process of being distributed to the OPP. 24 Were you aware of that? 25 A: No.
2921 Q: "We're in the process of moving the 2 majority of the equipment to Pinery 3 which should be completed Tuesday or 4 Wednesday." 5 A: Correct. 6 Q: Okay. 7 "And the concessionaire, Ron Myrna 8 (phonetic) will be moving his equipment 9 to Pinery". 10 A: Correct. 11 Q: Do you know whether that, in fact, 12 happened, prior to the occupation? 13 A: I believe that most of his light 14 equipment from his concession was moved. 15 Q: All right. 16 And: 17 "Arrangements for OPP to provide routine 18 security checks during the off season 19 has been completed." 20 Were you aware of that? 21 A: No. 22 Q: Okay. And the next page is an e-mail 23 dated September 1st, 1995, so this is the same day as your 24 meeting with Inspector Carson and it reflects the new 25 composition of the emergency response team; is that fair?
2931 A: Yes. 2 Q: And the only change is the addition of 3 yourself as project leader? 4 A: That's correct. 5 COMMISSIONER SIDNEY LINDEN: Once again, 6 there's home phone numbers on that document, if you're 7 going to make it an exhibit. 8 MS. SUSAN VELLA: Yes, there are home and 9 cell phone numbers and I am going to ask for this to be 10 made an exhibit and at the same time, I'll ask for the -- 11 for those -- private information to be redacted. 12 This be the next exhibit, please. 13 THE REGISTRAR: P-784, Your Honour. 14 15 --- EXHIBIT NO. P-784: Document Number 1007834. 1. 16 Page 1, Email from Les 17 Kobayashi to Peter Sturdy re: 18 Ipperwash; 2. Pages 2 and 3, 19 Notice from Les Kobayashi to 20 occupants of Ipperwash; 3. 21 Handwritten note re. Neal 22 Ferris, Sept 3rd, '95. 23 24 CONTINUED BY MS. SUSAN VELLA: 25 Q: So the status at the Park over the
2941 weekend, as far as you knew, was that equipment was being 2 -- in the process of being moved out, the concessionaire's 3 equipment was in the process of being moved out. 4 Arrangements had been made for a remote command post and 5 surveillance had been, in fact, installed in -- in two (2) 6 of the buildings at the Park. 7 A: Yes. 8 Q: And was that consistent with your 9 understanding as to what was suppose to be happening, 10 based on your meeting with Inspector Carson? 11 A: I don't believe the -- I don't believe 12 there was any discussion about surveillance equipment at 13 that particular meeting -- 14 Q: Okay. 15 A: -- with Inspector Carson. 16 Q: Do you know when that topic arose? Or 17 when that initiative rose? 18 A: I don't believe it ever arose with him 19 -- through him, directly with me. 20 Q: I take it the MNR gave permission to 21 the OPP to install the surveillance equipment? 22 A: Yes. Through Les' -- yes. 23 Q: Thank you. Is it fair to say that 24 under this Emergency Response Team process developed by 25 the MNR, that all field personnel were -- such as Les
2951 Kobayashi, were to report to you and then you in turn 2 would report to others within the MNR? 3 A: That's correct. 4 Q: Is it fair to say that you were 5 effectively the funnel for the information flow in the 6 event of an occupation or other critical incidents 7 occurring at the Ipperwash Provincial Park under -- under 8 your plan? 9 A: That's right. 10 Q: Did you know who your main person on 11 the ground at the Park would be in the event of an 12 occupation or a critical incident at the Park? 13 A: Les Kobayashi. 14 Q: And -- 15 A: Or Don Math -- or probably Don 16 Matheson; one or the other. 17 Q: All right. Mr. Kobayashi was the Park 18 Superintendent? 19 A: Right. 20 Q: And Mr. Matheson was the Assistant 21 Park Warden, was it, or Assistant Park Superintendent? 22 A: He's an assistant -- he's an assistant 23 park superintendent for Pinery. 24 Q: Now had you any comparable experience 25 in performing this type of flow in a critical incident
2961 situation? 2 A: No I did not. 3 Q: Were you provided with any briefing or 4 information as to how to effectively -- you know, the do's 5 and don'ts of your job if you will? 6 A: I think that's why Ron Baldwin was to 7 be on the team. Ron had -- Ron -- Dan and Ed Vervoort all 8 had compliance enforcement backgrounds. Had gone through 9 different career -- career positions and I think Ron was 10 there to be a help, a mentor, a guide. 11 Q: All right. Well did he provide you 12 with guidance prior to the -- the occupation? 13 A: We didn't -- I don't believe we sat 14 down and spent a lot of time talking about what the next 15 steps would be, no. 16 Q: Okay. Now did you have any 17 discussions with your superiors about Inspector Carson's 18 vision as to what would happen in the event of an 19 occupation and specifically what the MNR's role would be 20 within that plan? 21 A: I'm sorry, could you repeat that. I - 22 - I got distracted. 23 MS. SUSAN VELLA: Perhaps, Commissioner, 24 it is 4:30. 25 COMMISSIONER SIDNEY LINDEN: We are
2971 getting late. I think it's easy to get distracted at this 2 time of the day. 3 MS. SUSAN VELLA: Perhaps we should 4 adjourn at this time. 5 COMMISSIONER SIDNEY LINDEN: Is this a 6 good point for you? 7 MS. SUSAN VELLA: It's fine. 8 COMMISSIONER SIDNEY LINDEN: I think we 9 should adjourn then now until 9:00 in the morning. 10 MS. SUSAN VELLA: Thank you, Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 THE REGISTRAR: This Public Inquiry is 13 adjourned until tomorrow, Wednesday, October 19th at 9:00 14 a.m. 15 16 --- Upon adjourning at 4:30 p.m. 17 18 Certified Correct 19 20 21 22 ________________________ 23 Carol Geehan 24 25