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 26th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) (np) 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 ) (np) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Mary Jane Moynahan )(np) 15 Dave Jacklin ) (np) 16 Trevor Hinnegan ) (np) 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) (np) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) (np) Aboriginal Legal 3 Brian Eyolfson ) (np) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 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 ) (np) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) (np) 24 Adam Goodman ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 LESLIE KOZO KOBAYASHI, Resumed 6 Continued Cross-Examination by Mr. Vilko Zbogar 8 7 Cross-Examination by Ms. Jackie Esmonde 113 8 Cross-Examination by Mr. Kevin Scullion 165 9 Cross-Examination by Mr. Julian Roy 239 10 Cross-Examination by Mr. Walter Myrka 271 11 Re-Direct Examination by Ms. Susan Vella 291 12 13 RONALD JOHN VRANCART, Sworn 14 Examination-In-Chief by Mr. Donald Worme 299 15 16 Certificate of Transcript 319 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-908(a) Skeletal remains found in Ipperwash 4 Prov. Park, 1951 (Photograph). 10 5 P-908(b) Photograph of Mr. Owen Burley kneeling 6 beside skeletal remains in Ipperwash 7 Prov. Park, 1951. Caption on back of 8 photograph "Owen and the Skeleton". 10 9 P-909 Document Number 8000186. Note to file, 10 re. Ipperwash skull, Joanne MacDonald 11 fax, Oct. 17/'96. 23 12 P-910 Document Number 1012520. Notes of Paul 13 Lennox. 27 14 P-911 Document number 3001695 Memo to file 15 by John Van West , December 03/'97. 31 16 P-912 Document Number 1000662. London Free 17 Press article, "Police Playing Waiting 18 Game at Ipperwash", Sept. 06/'95. 125 19 P-913 Document Number 2001840. Sarnia 20 Observer article, "Three (3) Natives 21 at Park Charged", Sept. 06/'95. 126 22 P-914 Document Number 1002055. SIU Followup 23 Report, SIU file number 95-PFD-130, 24 November 09/'95. 163 25
71 EXHIBITS (con't) 2 No. Description Page 3 P-915 Aerial photograph of Ipperwash Prov. 4 Park and surrounding area, 2003 marked 5 by Witness Les Kobayashi Oct. 26/'05. 164 6 P-916 Resume of Ronald John Vrancart. 303 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 9:00 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. VILKO ZBOGAR: Good morning, Mr. 9 Commissioner. 10 11 LESLIE KOZO KOBAYASHI, Resumed; 12 13 CONTINUED CROSS-EXAMINATION BY MR. VILKO ZBOGAR: 14 Q: Good morning, Mr. Kobayashi. 15 A: Good morning. 16 Q: The first thing I'd like to try to do 17 this morning is actually put up the better copies of 18 those two (2) photographs that we referred to yesterday 19 up on the screen. I don't know if that's doable. There 20 we go. 21 Now, you saw a poor copy of this 22 yesterday, this is a much better copy that you see on the 23 screen. This is, I take it, one (1) of the photographs 24 that you saw that originated from Ms. Dulmage? 25 A: That's correct.
91 Q: And can you -- having seen the 2 original can you tell us what's in the photograph? 3 A: Skeletal remains of a human body; 4 skull, rib cage, arms. 5 Q: And you understand that this was 6 remains that were found inside the Park near the 7 bathhouse reservoir area. 8 A: That's what I understood at the time, 9 yes. 10 Q: Okay. And the next photograph, 11 please? 12 13 (BRIEF PAUSE) 14 15 Q: And you've seen the original of this 16 photograph as well I take it? 17 A: That's correct. 18 Q: And can you identify this for us and 19 describe what it shows? 20 A: I understand that's -- the person in 21 the -- in the picture is Mr. Burley and he's overlooking 22 the skeletal remains from the previous picture. 23 Q: Okay. Commissioner, I wonder if we 24 can make these two (2) photographs the next exhibit. 25 THE REGISTRAR: That'll be Exhibit P-908,
101 Your Honour. 2 MS. SUSAN VELLA: I suggest that we use 3 these hard copies. We may be able to get better 4 reproductions -- but at least for the time being. 5 COMMISSIONER SIDNEY LINDEN: Is that 6 908(a) and (b) or just 908. 7 MS. SUSAN VELLA: It doesn't matter. 8 MR. VILKO ZBOGAR: Maybe we can make the 9 first photograph 908(a) and the second photograph 908(b). 10 THE REGISTRAR: Very good. 11 12 --- EXHIBIT NO. P-908(a): Skeletal remains found in 13 Ipperwash Prov. Park, 1951 14 (Photograph). 15 16 --- EXHIBIT NO. P-908(b): Photograph of Mr. Owen Burley 17 kneeling beside skeletal 18 remains in Ipperwash Prov. 19 Park, 1951. Caption on back 20 of photograph "Owen and the 21 Skeleton". 22 23 CONTINUED BY MR. VILKO ZBOGAR: 24 Q: I want to followup something from 25 yesterday. You said that you would have preferred to
111 have known about the burial ground evidence prior to 2 September 1995. And I asked you a little bit about that. 3 I want to ask you something further. 4 One reason I take it that you wanted to 5 know about the burial ground evidence is because you 6 understood MNR as generally being supportive with 7 assisting with the preservation and protection of burial 8 grounds. 9 A: That is correct, yes. 10 Q: And if evidence of a burial ground 11 had been apparent prior to September 1995 in addition to 12 the claims of the occupiers that is, you would have 13 expected that MNR would have done something about it? 14 A: I would have expected that once it 15 was identified in 1993, that we would certainly have done 16 further investigations as we did after 1995, yes. 17 Q: And if MNR was aware of this prior to 18 1995, you'd think that MNR should have done something 19 about it. 20 A: I suspect so, yes. Yes. 21 Q: Now to your knowledge even though the 22 First Nation had asked in 1937 to have their burial 23 ground fenced off and preserved, that was never done, to 24 your knowledge? 25 A: Not within the boundaries of the
121 Park, no. 2 Q: And to your knowledge even though MNR 3 staff located the 1937 documents regarding the burial 4 grounds in the Park in 1975, nothing was done between 5 1975 and September 1995 to identify or preserve the 6 burial grounds in the Park? 7 A: That is correct. 8 Q: And I also want to followup on the 9 document at Tab 212 of your materials. It's Exhibit 891. 10 I asked you some questions about this 11 yesterday but I think I might have conflated two (2) 12 different things. I want to break it down a little bit 13 if I can. 14 What I would like to do is maybe just read 15 those -- the -- the two (2) -- first para -- well, the 16 second and third paragraphs. At least parts of that. It 17 says: 18 "Marilyn provided us with information 19 and pointed out where she believes 20 there is a burial site in Ipperwash 21 Park. This site was shown to her by 22 her father while they were residing at 23 the Park. 24 The information and the detail she 25 provided was accurate as confirmed by
131 Don. The site is located on the north 2 side of Dufus Creek east of the new 3 bridge on a meandering curve of the 4 creek. Don confirms that this 5 particular area is perhaps a site that 6 was never disturbed during the 7 development of the Park. 8 Don, as I do feel strongly that this 9 area could be burial site and we would 10 recommend further investigation." 11 And then it says: 12 "Marilyn provided -- provided us with 13 additional information that remains had 14 been uncovered when her dad was 15 constructing the bathhouse in the early 16 '50's." 17 So, the way I read that is there's two (2) 18 different things being talked about there. One is her 19 understanding there's a burial site a particular location 20 and secondly, she's talking about specific remains being 21 identified by her father in 1950 or so. 22 A: That is my -- that was my 23 understanding at the time, yes. 24 Q: Okay. And when you pointed us to a 25 location where there were -- on -- on a map near the
141 reservoir, that was the location of where the burial -- 2 burial remains were found, right? 3 A: That's correct, where the old 4 bathhouse was located. 5 Q: And where -- can you tell us where it 6 was that the location of the site identified in the 7 previous paragraph that she was discussing? 8 A: It wasn't an actual site. What it 9 was, was an area that she -- her dad had pointed out to 10 her -- to her as a burial site. There was no recognition 11 that there was one there at the time -- 12 Q: Okay. 13 A: -- but that there could be possibly. 14 And I think that's what Don was referring to as a 15 possible site, not "the" site. 16 Q: Right. You're familiar with that 17 area and where that would have been, that possible site? 18 A: General vicinity. 19 Q: Right. Okay. So this is a few 20 hundred metres west of the reservoir that -- 21 A: Correct. 22 Q: -- the previous site was found. 23 A: Yes. Yeah. 24 25 (BRIEF PAUSE)
151 Q: Now, to continue where I left off 2 yesterday we were going through some of Paul Lennox's 3 notes and actually one (1) reason I wanted to review them 4 with you is because I understand Mr. Lennox is quite ill 5 and probably wouldn't be able to attend this Inquiry, but 6 if I could turn you back to Tab 9 of the document brief 7 that I've put before you. 8 I asked you, at the end of the day 9 yesterday, to review this document? 10 A: That's correct. 11 Q: And I understand you interviewed or 12 spoke with Marilyn Dulmage. I understand that also Mr. 13 Lennox interviewed Marilyn's mother Opal Dale as well as 14 Joyce Erends who was Opal's daughter. 15 And what I want to know is if there's 16 anything in Mr. Lennox's notes that is new to you or was 17 new to you or different than the information that you 18 received from Marilyn Dulmage or from other sources at 19 the time that you received that document? 20 A: I would have to go over it again 21 quickly to -- to address that question because I didn't 22 go -- go through it last night with that in mind. 23 Q: Okay. Is there anything -- if 24 there's anything significant maybe you can point us out 25 to it. I'll give you a minute to do that.
161 (BRIEF PAUSE) 2 3 A: She did mention anything about the 4 reservoir when we were interviewing her so that would 5 have been new -- 6 Q: Okay. 7 A: -- finding bones around the reservoir, 8 that was certainly new. 9 Q: Okay. So you're referring to the 10 second page of Document Exhibit 907 where it says: 11 "What about the suggestion that there 12 had been -- there were bones discovered 13 when the reservoir was built?" 14 I think that's a question and the response 15 is: 16 "Opal had heard this too, i.e. 17 recently, but did not know of any 18 details." 19 That's what you're referring to? 20 A: That's correct, yes. 21 Q: Okay. I do want to get into that a 22 little bit in minute. 23 One (1) other -- is there anything else 24 that you'd like to point out to me? 25 A: Not -- not that I've noticed at this
171 particular point in time, but there may have been, I 2 have -- 3 Q: Okay. So basically the information 4 is consistent with the information that you got? 5 A: Very much so, yes. 6 7 (BRIEF PAUSE) 8 9 Q: I want to ask you, before I leave 10 that document, about one (1) particular entry that 11 appears on the second page on Mr. Lennox's notes about a 12 third of the way down and there's a question: 13 "Was anyone in the native community 14 advised when the skeleton appeared?" 15 Do you see that? 16 A: Yes, I do. 17 Q: And the answer is: 18 "No?" 19 A: Correct. 20 Q: Are you aware of any information to 21 the contrary? 22 A: Not to my knowledge, yes. 23 Q: Are you aware whether anyone in the 24 native community was advised about that skeleton between 25 1950 and 1995?
181 A: I'm not aware, yes. 2 Q: I understand that Paul Lennox was 3 also in contact with Dr. Michael Spence from the 4 University of Western Ontario. 5 Are you familiar with that having 6 occurred? 7 A: Not directly, no. I believe Zone 8 Manager Peter Sturdy was more in contact with Mr. Lennox 9 than I was. 10 Q: All right. But you are aware that he 11 was doing that kind of research? 12 A: He was doing some research and so 13 forth, yes. 14 Q: All right. Now you -- you said that 15 the communicate was mainly to Peter Sturdy. But you were 16 generally aware either directly or through Peter Sturdy 17 that there was this investigation going on that Michael 18 Spence, Dr. Michael Spence was doing some followup and 19 looking at the photographs and that sort of thing. 20 A: Some time after, yes. After this was 21 -- it wasn't at the immediate time. 22 Q: Okay. 23 A: I don't believe. 24 Q: What I would like to do is just refer 25 you to Tab 10 of my document brief. And this is Exhibit
191 10 -- sorry, Document Number 1004343. And what this is, 2 is Michael Spence's report. Actually two (2) versions of 3 his report. One a technical report, one a more general 4 one for public consumption. 5 Have you seen that document before? 6 A: I have not, no. 7 Q: You have not. Were you made aware of 8 the contents of that report at all, without having 9 referred to it I -- 10 A: I don't recollect to be honest with 11 you. This was -- this was new to me. 12 Q: Okay. 13 A: Yes. 14 Q: Did you ever receive any information 15 that physical anthropologist identify that the remains 16 that we've looked at the photographs of were probably of 17 a child around the age of 11 or so in that the burial -- 18 A: At some point in time, yes. 19 Q: Yeah. 20 A: Yeah. At some point in time I was 21 aware of that. 22 Q: And you would have been aware that 23 the conclusion of physical anthropologist research was 24 that the burial site may have been of Ojibwa origin? 25 A: I don't recollect at this time, to be
201 honest with you. 2 Q: Now I know you don't have any 3 anthropology training, I take it. 4 A: None. 5 Q: But, from -- from your observations 6 and from your discussions with Ms. Dalmage, did it appear 7 to you that the remains and -- and from the logs you 8 received from any source, from Mr. Lennox or otherwise, 9 you knew that the remains would have been quite old and 10 not something that was fresh. 11 Can you -- can you comment on that? 12 A: I really can't comment on that 13 because I -- I'm not an expert in that area. 14 15 (BRIEF PAUSE) 16 17 Q: And if I can refer you to the next 18 tab over, Tab 11, Document 3000497. This is a letter 19 from Jerome Cybulski to Joanne MacDonald. 20 Have you seen that document before? 21 A: I have not, no. 22 Q: Have you heard of Dr. Cybulski 23 before? 24 A: I have not. 25 Q: Now, the 1942 issue came up in Mr.
211 Lennox's notes that we just referred to. I want to ask 2 some questions about that. 3 A: Hmm hmm. 4 Q: Maybe a good starting point for this 5 reference is Tab Number 8, Document Number 8000186. 6 These are notes that Joanne MacDonald wrote, I guess to 7 her own file, her research file dated October 17th, 1996. 8 And I would like to refer you to the last 9 paragraph of her document. And Ms. Dulmage apparently 10 told Ms. MacDonald that according to local oral history 11 and I quote: 12 "During the construction of the water 13 reservoir in the Park in the 1940's 14 truckloads of bones were removed from 15 the sandhill where the reservoir is 16 built." 17 Now, I take it that from what you told me 18 Ms. Dulmage didn't share that kind of information with 19 you? 20 A: She did not, no. 21 22 (BRIEF PAUSE) 23 24 Q: And we've seen a reference where she 25 referred to it in speaking with Dr. -- where Opal and
221 Dale referred to it in speaking with Dr. -- with Mr. 2 Lennox. So, prior to seeing this information you haven't 3 been aware of any of the oral history that there bones 4 unearthed in the 1940's? 5 A: To be honest with you at some point 6 in time I do recollect that there was that lore, but it 7 was -- I'm not sure if it was prior to 1995 -- September 8 1995 or after -- 9 Q: Okay. 10 A: -- sometime, but I did hear that. 11 But it wasn't from my meeting with the Dulmages. 12 Q: Okay. 13 A: It was -- I'm not sure where I heard 14 that actually. 15 Q: Let me explore that a little bit 16 then. 17 18 (BRIEF PAUSE) 19 20 Q: At Tab Number 13 there are 21 additionally -- actually before I leave, the previous 22 document number, document number 8000186 I'd like to mark 23 that as an exhibit? 24 THE REGISTRAR: P-909, Your Honour. 25
231 --- EXHIBIT NO. P-909: Document Number 8000186. 2 Note to file, re. Ipperwash 3 skull, Joanne MacDonald fax, 4 Oct. 17/'96. 5 6 CONTINUED BY MR. VILKO ZBOGAR: 7 Q: So, Tab 13 of my document brief, 8 Document Number 1012520, there's a draft letter and then 9 some notes of Paul Lennox that are attached to that. 10 I take it you wouldn't have seen Mr. 11 Lennox's notes before this? 12 A: I -- I did not, not to my 13 recollection. 14 Q: Now, what I want to refer you to, 15 specifically, if you turn four (4) pages into that tab -- 16 COMMISSIONER SIDNEY LINDEN: Sorry, which 17 tab is this? 18 MR. VILKO ZBOGAR: Tab 13 of the cross- 19 examination binder. 20 21 CONTINUED BY MR. VILKO ZBOGAR: 22 Q: Two-thirds (2/3's) of the way down 23 there's a date; February 5, 1995? 24 A: Correct. 25 Q: I think that's a typo, it should
241 probably be '96 and you'll see that from the context. 2 And it says the following: 3 "Talked to Mr. Sturdy about the problem 4 in general. Apparently he was at a 5 meeting on the weekend with native 6 people concerned with the Ipperwash 7 area. I restated from my letter that 8 there are likely burials in that area 9 and he seemed to be focussed [and then 10 it says in quotes] 'or burials sites'. 11 I think it should be "on burial sites." 12 And then it says: 13 "with 'lots of burials' but I told him 14 that it is likely that burials in the 15 area reflect the small group sizes 16 utilizing the area throughout the pre- 17 history and that a 'burial ground' was 18 unlikely and probably difficult to 19 find." 20 So, there probably are burials in there, 21 but not something that somebody might consider a burial 22 ground of some substance is -- is I think the gist of 23 this comment. 24 A: I believe so. 25 Q: Now, if I turn over the next page it
251 says at the top: 2 "Les Kobayashi called to ask pretty 3 much the same questions." 4 And I know there's some intervening notes 5 between the one I just read and -- and where that 6 appears, but what I want to know is whether that 7 information I just read was passed onto you? 8 A: I believe so, yes. 9 Q: And that was communicated to you by 10 Mr. Lennox? 11 A: I imagine Mr. Sturdy. 12 Q: All right. Mr. Study, okay. 13 Do you recall when you heard that 14 information whether it was new to you? 15 A: I don't recall. 16 17 (BRIEF PAUSE) 18 19 Q: Now, after you names appears on that 20 document where it says, "Les Kobayashi called to ask 21 pretty much the same questions" there's a paragraph that 22 says: 23 "He added that the Federal Government 24 installed a pumphouse in the Park and a 25 waterline through dunes around Dufus
261 Creek in the 1940's." 2 Do you know who -- where -- what the 3 source of that information was? 4 It seems he may be ascribing that to 5 yourself as being the source. Did you tell Mr. Lennox 6 this information or Mr. Sturdy? 7 A: I --I believe Mr. Sturdy, yes. 8 Q: Okay. So, probably Mr. Sturdy told 9 him that information? 10 A: I would assume that, yes. 11 Q: Okay. And it says: 12 "Somebody at the meeting last Saturday, 13 i.e., February 3rd, said that there 14 were burials taken out of the pumphouse 15 area at that time." 16 Then there's a reference to pumphouse 17 construction, 1942. 18 Now, I'd like to ask you again: Did -- 19 did you report to Mr. Lennox that there was a meeting on 20 February 3rd where this issue came up? 21 A: I don't recall, to be honest with 22 you. 23 Q: And there's a reference to the 24 meeting on February 3rd, do you know what that is 25 referring to?
271 A: I do not. 2 Q: Do you recall attending a meeting on 3 February 3rd where this kind of issue came up -- 1995 or 4 1996, I'm sorry. 5 A: I do not. 6 7 (BRIEF PAUSE) 8 9 Q: Maybe if I could turn you to -- and 10 before I do, maybe we can -- I'd ask if we can make an 11 exhibit out of document number 1012520? 12 THE REGISTRAR: P-910, Your Honour. 13 MR. VILKO ZBOGAR: Thank you. 14 15 --- EXHIBIT NO. P-910: Document Number 1012520. 16 Notes of Paul Lennox. 17 18 CONTINUED BY MR. VILKO ZBOGAR: 19 Q: The next tab in my brief is Tab 14, 20 is a memo from John Van West dated December 3rd, 1997. 21 And on the second page of that document, 22 in approximately the middle, there's a paragraph that 23 begins, "when Jan Martin and I..." 24 Do you see that paragraph? 25 A: Yes.
281 Q: It says: 2 "When Jan Martin and I were assembling 3 the MNR documents on October 28th, 4 29th, 30th, 1996 in Grand Bend in 5 anticipation of the land claim being 6 filed, pursuant to Yan Lazor's 7 direction, we found minutes of a 8 meeting between MNR officials [and then 9 in brackets] (Les Kobayashi, Pinery 10 Park Superintendent), I recall from the 11 minutes, was among those who attended 12 the meeting, and members of the Kettle 13 and Stony Point First Nation [and in 14 brackets] (or the Stoney Point 15 community or both), I cannot recall 16 exactly." 17 And then it goes on to say: 18 "At that meeting an Elder was quoted as 19 saying that burial remains were removed 20 from around the pumphouse area in the 21 1940's." 22 First of all, do you recall a meeting of 23 that nature? 24 A: I don't recall, but I was having 25 several meetings at that particular point in time.
291 Q: I'm sorry, I didn't hear that. 2 A: I was having several meetings at that 3 particular point in time and I do recall having meetings 4 with the Kettle Point Stony Point people and the Stoney 5 Pointers as well -- 6 Q: Okay, so you had -- 7 A: -- in conjunction with the OPP. 8 Q: You had a number of meetings. At any 9 of those meetings, do you recall any information ever 10 being passed on to you that -- that burial remains were 11 removed from around the pumphouse area in the 1940's? 12 A: I don't recall, but obviously it was 13 recorded and obviously I passed it on, so, yes, being 14 something of significance. 15 Q: Okay. Unfortunately, I haven't been 16 able to locate those minutes, so that may have helped us. 17 A: I believe I made summaries of all the 18 meetings, so -- 19 Q: Okay. 20 A: And were followed up to Mr. Sturdy. 21 Q: I'm sure they're somewhere, but I 22 haven't been able to find -- find them yet so -- 23 A: Right. They are there somewhere. 24 Q: Yes. Now, can you help us at all 25 with that information about an Elder identifying that
301 information? 2 A: I cannot, actually. There was just 3 so much going on that I don't recall. 4 Q: But, from what this document says 5 that you have before you, that's pretty much the same -- 6 that information being communicated apparently by a 7 native Elder is the same kind of communication -- 8 information that was being communicated by, as we've 9 seen -- 10 A: I believe so. 11 Q: Yes. 12 A: I believe so, yes. 13 14 (BRIEF PAUSE) 15 16 Q: Okay. Now, I anticipate that the 17 evidence of Joyce Erends if she's asked to testify would 18 be that when she moved to the Park as a child, and when 19 her father became the Superintendent, she was told 20 something along the lines of, Don't touch anything, be 21 careful, there is an Indian ground -- burial ground 22 around here or something of that nature, but that she did 23 not know where that area was exactly. 24 Did that kind of topic ever come up during 25 your conversation with Marilyn Dulmage?
311 A: I never spoke with Ms. Erends. No, I 2 did not with Ms. Dulmage. I would have certainly found 3 that to be noteworthy and include it in my notes. 4 Q: So, you -- you had no awareness of 5 any of the oral history of the Indian burial sites in the 6 Park until you became aware of this 1942 issue and you're 7 not exactly sure when that was? 8 A: It was after. It was -- it was 9 probably into late '95/'96 when I became aware of that, 10 yes. 11 12 (BRIEF PAUSE) 13 14 Q: Mr. Commissioner, can we mark that 15 document, Inquiry Document Number 3001695 as the next 16 exhibit? 17 THE REGISTRAR: P-911, Your Honour. 18 19 --- EXHIBIT NO. P-911: Document number 3001695 Memo 20 to file by John Van West , 21 December 03/'97. 22 23 CONTINUED BY MR. VILKO ZBOGAR: 24 Q: At Tab 12 of the document brief 25 before you, there's add -- yet, additional notes from Mr.
321 Lennox as I understand them to be. And unfortunately the 2 pages aren't numbered but at the top left hand corner 3 there is very small numbering and I'd like to refer you 4 to the page that says 800675. I think it's about two (2) 5 pages in -- three (3) pages in. 6 A: Which tab was this again, I'm sorry? 7 Q: This is Tab 12. 8 A: 12. 9 Q: So, three (3) pages in. 10 COMMISSIONER SIDNEY LINDEN: I'm sorry, 11 whose notes are these? Are these Mr. Lennox? 12 MR. VILKO ZBOGAR: I understand they're 13 the notes of Paul Lennox. They're not identified -- 14 COMMISSIONER SIDNEY LINDEN: Well -- 15 MR. VILKO ZBOGAR: -- as such but it -- 16 it appears from the context and the similarity to other 17 notes of Paul Lennox that that's what they are. I don't 18 think anything turns on that but-- 19 COMMISSIONER SIDNEY LINDEN: The third 20 page in? 21 22 CONTINUED BY MR. VILKO ZBOGAR: 23 Q: The third page in and the first -- or 24 the second full paragraph there. It says: 25 "Les got a hold of Charles -- Charlie
331 Shawkence --" 2 Do you see that? 3 A: Yes, I do. 4 Q: Do you remember speaking with Charlie 5 Shawkence? I think the date reference here is around 6 July of 1996. 7 A: I don't recall that. 8 Q: If I can next turn you to Tab 15 and 9 this is a page from Inquiry Document Number 6000397 which 10 are Her Majesty the Queen and right of Ontario answers to 11 undertakings during the George vs Harris litigation. 12 Took you to a page of this earlier but I 13 want to ask you about the item that appears at Number 26 14 in the left hand margin. 15 A: Correct, yes. 16 Q: And it says there: 17 "Kobayashi advises that he searched the 18 MNR files at Whitney Block Queen's 19 Park." 20 And -- and I think that's connected to the 21 previous comment which says: 22 "The letter from Cain was found 23 [this is the 1937 letter] was found 24 September 14th, 1995 in MNR land use 25 files which has been produced together
341 with all other documents of the same 2 timeframe." 3 Do you recall doing a search in Whitney 4 Block for these files? 5 A: I did so, yes. 6 Q: You did so. And you did find those 7 1937 documents in Whitney Block? 8 A: Actually there was three (3) or four 9 (4) of us at that time -- three (3) of us searching the 10 files. There was Ken Armstrong whose a senior tech and 11 he was -- and Don Matheson and myself, I believe, 12 searched the files and I believe that document was found, 13 yes. 14 Q: Now, if it was the case that prior to 15 September 6th, 1995 you had been aware of the 1937 16 evidence of a burial ground in the Park, which appeared 17 consistent with some of the claims the occupiers were 18 making, you would have communicated that to your 19 superiors at the time, right? 20 A: Oh, most certainly, yes. 21 Q: And you probably would have 22 communicated that to the OPP during that time since you 23 were having meetings with them? 24 A: Yes. 25 Q: And you probably would have
351 identified that in your affidavit to the Court? 2 A: That's correct. 3 Q: In fact you certainly would have 4 identified that in your affidavit? 5 A: That's correct. 6 7 (BRIEF PAUSE) 8 9 Q: Now, onto a different area. A few -- 10 a few days ago Ms. McAleer on behalf of Mr. Harris was 11 asking Peter Sturdy about an e-mail dated May 23rd, 1993 12 written by Jim Young and this is Exhibit P-803. 13 Now, Mr. Commissioner, I apologize, I 14 neglected to make this part of the cross-examination 15 brief. I do have additional copies of that document. 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: Thank you. 20 THE WITNESS: Thank you. 21 22 CONTINUED BY MR. VILKO ZBOGAR: 23 Q: Now, this is a document under cover 24 from yourself and attaches a -- a number of pages. 25 MS. SUSAN VELLA: Can you give me the
361 Inquiry document number? 2 MR. VILKO ZBOGAR: Oh, just for the 3 record this is Inquiry Document Number 3001524 and 4 Exhibit P-803. 5 6 CONTINUED BY MR. VILKO ZBOGAR: 7 Q: So, there's a -- the first page of 8 that fax is -- the document is a fax from yourself to Ron 9 Baldwin dated May 18th, 1993, right? 10 A: Yes. 11 Q: And it appears that there was 12 attached to that an e-mail from Jim Young and that's four 13 (4) pages in? 14 A: Yes. 15 Q: And that's dated March 23rd, 1993? 16 A: Correct. 17 Q: And near the end of the e-mail, the 18 second page of it, the second -- the second paragraph on 19 page 2 it says: 20 "It appears that the Province is 21 legally in possession of the land based 22 at Ipperwash Provincial Park. The 23 Province obtained this land in a fair 24 and equitable manner?" 25 A: Yes.
371 Q: Now, it's correct that you would have 2 seen this document, this e-mail that we're referring to 3 around that time and would have forwarded it on to Ron 4 Baldwin? 5 A: Yes. 6 Q: Now, Jim Young, he was I take it a 7 superior to you; he was a manager in -- in MNR? 8 A: He was -- he was Mr. Sturdy's direct 9 manager -- 10 Q: All right. 11 A: -- that he reported to. 12 Q: So, it appeared to you from this 13 document that -- well, Jim Young is saying that the lands 14 had been surrendered or let me -- let me rephrase. 15 Upon seeing this document it appeared to 16 you that Jim Young was saying that the surrender of the 17 Park lands was fair and equitable and that it appeared 18 from the Ministry's position was that the surrender was 19 fair and equitable; is that fair? 20 A: That is correct, yes. 21 Q: In the time from 1993 until -- up 22 until the shooting of Dudley George do you recall any 23 discussion or examinations or analysis or research of the 24 question of whether the surrender was fair and equitable? 25 A: From 1993 to 1995 there was a great
381 deal of searching and looking through files, checking 2 files as the Federal Government was doing through -- with 3 Joanne MacDonald. Yes, yes, I'm sure that was discussed 4 and reviewed and looked at. 5 Q: Okay. Now, I want to be clear here 6 that I'm aware that there was a lot of research into the 7 title documents themselves -- 8 A: Yes. 9 Q: -- if we look at the chain of title 10 and that sort of thing, what I want to ask specifically 11 is this reference to "fair and equitable" in reference to 12 the surrender. 13 Now, do you know if that particular 14 question was ever part of the research or analysis that 15 was conducted? 16 A: Not to my knowledge, no. I -- that - 17 - that wasn't in my bailiwick. 18 COMMISSIONER SIDNEY LINDEN: You don't 19 want to go much further down this road I presume? 20 MR. VILKO ZBOGAR: No, no. I just want 21 to ask -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. VILKO ZBOGAR: -- if he had knowledge 24 about it. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
391 He doesn't have any. And, Mr. Myrka, what's your 2 objection? 3 MR. WALTER MYRKA: Well, I just wanted to 4 -- it's not really an objection. What I wanted to do was 5 clarify the point with the passage that Mr. Kobayashi was 6 taken to in the note from Mr. Young. 7 It simply talks about the -- obtaining 8 possession of the Park. 9 It doesn't actually talk about the 10 surrender of the Park -- 11 COMMISSIONER SIDNEY LINDEN: Surrender. 12 No. 13 MR. WALTER MYRKA: -- and the reference 14 to "fair and equitable" does not appear to be a reference 15 to that -- 16 COMMISSIONER SIDNEY LINDEN: To the 17 surrender. 18 MR. WALTER MYRKA: -- surrender. 19 COMMISSIONER SIDNEY LINDEN: Yes, that's 20 fine. Well, I think that you've gone -- you've asked 21 your question. He doesn't know -- 22 MR. VILKO ZBOGAR: That's like -- that's 23 just as far as I wanted to go. I think it's open for 24 interpretation as to what it's referring but we'll leave 25 that for another day.
401 (BRIEF PAUSE) 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: See, I have one further question was 5 -- which was a bit -- which is a bit different, if I 6 could ask, and that is, whether in the period from 1993 7 up until the shooting of Dudley George you ever heard 8 anyone or became aware of anyone talking about the 9 possibility that the surrender of the lands was not fair 10 or equitable? 11 A: Not to my recollection. 12 13 (BRIEF PAUSE) 14 15 Q: So, I think it's -- is it fair to say 16 that if there were claims or potential claims to the 17 Ipperwash Parklands by a First Nations group, you would 18 likely have become aware of those claims or potential 19 claims during your tenure as Park Superintendent? 20 A: That's fair to say. 21 Q: Now, are you aware that the First 22 Nation had expressed an intention to make a claim to the 23 Parklands as early as the 1970's? 24 A: Not to my recollection. 25
411 (BRIEF PAUSE) 2 3 Q: If you could turn to Tab 16 of my 4 document brief to you I'm referring to Inquiry Document 5 Number 1003210. 6 On October 1st, 1970, it appears there was 7 a letter from Rene Brunelle, who I understand was the 8 Minister of Lands and Forests and the time, to Dr. J.K. 9 Reynolds the Secretary to the Cabinet, Office of the 10 Prime Minister. 11 And it says -- first paragraph says that 12 there's a possibility that the Band will make a claim to 13 the lands presently encompassing Ipperwash Provincial 14 Park. 15 And this is 1970. 16 A: Hmm hmm. 17 Q: Have you seen this before? 18 A: I don't recall if I have. 19 Q: Do you think this Minister's letter 20 would have been part of the Park's file? 21 22 (BRIEF PAUSE) 23 24 A: I don't believe so. It wasn't cc'd 25 to the Park. It was -- we wouldn't have received this
421 letter personally at the Park level, I don't believe. 2 Q: All right. Well, could we make this 3 document the next exhibit? 4 MS. SUSAN VELLA: I -- you know, this 5 hasn't even been -- 6 COMMISSIONER SIDNEY LINDEN: Yes, it -- 7 MS. SUSAN VELLA: -- identified as a 8 document by -- by the Witness. I'm having some 9 difficulty. I mean, the other documents at least refer 10 to things that he was a part of or allegedly a part of, 11 but this doesn't even do that. 12 COMMISSIONER SIDNEY LINDEN: Even under 13 our relaxed rules, it's hard to -- 14 MR. VILKO ZBOGAR: Well -- 15 COMMISSIONER SIDNEY LINDEN: -- find a 16 rationale for this being an exhibit at this point. 17 MR. VILKO ZBOGAR: I understand that 18 there may be some question as to the evidentiary value of 19 this. I don't know if Rene Brunelle is available, I 20 don't know if Mr. Reynolds is available to identify this 21 document. 22 It refers to a potential claim being made 23 in reference to the Parklands -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. VILKO ZBOGAR: -- and it's something
431 that I -- we probably do intend to refer into the future. 2 So, if -- 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. VILKO ZBOGAR: -- nothing else for 5 the -- 6 COMMISSIONER SIDNEY LINDEN: All the -- 7 MR. VILKO ZBOGAR: -- just for reference 8 purposes. 9 COMMISSIONER SIDNEY LINDEN: -- documents 10 in our data base, every document is accessible to us and 11 we can refer to it. 12 MS. SUSAN VELLA: Hmm hmm. 13 COMMISSIONER SIDNEY LINDEN: So I don't 14 know how it puts it forward or holds it back. So I 15 don't -- 16 MR. VILKO ZBOGAR: Okay, fair enough, 17 fair enough. 18 COMMISSIONER SIDNEY LINDEN: As long as 19 you've got the document number, you can make reference to 20 it. 21 MR. VILKO ZBOGAR: I'm happy with that. 22 COMMISSIONER SIDNEY LINDEN: Take your 23 time. 24 25 (BRIEF PAUSE)
441 CONTINUED BY MR. VILKO ZBOGAR: 2 Q: So, when it talks about a potential 3 claim being made, you wouldn't have any idea of what the 4 basis for that was, or any information about that? 5 A: Not at all. 6 Q: If I can maybe go one (1) step 7 further. I think the next tab over is Tab 17 in my brief 8 too. It's Inquiry Document 1003314. 9 And this is a newspaper article from 10 November 1st, 1975 from the London Free Press and I think 11 it provides some context as to what the issues were 12 around that time. And if I could refer you to the third 13 paragraph of that article. It says: 14 "Chief Shawkence [and that's Chief Carl 15 Shawkence at the time] said that the 16 Band also has documentation that nearby 17 Ipperwash Provincial Park was taken 18 from the Indians illegally in 19 -- [I 19 think it says 1900, I don't know if 20 that's correct] and never legally 21 surrendered. 22 He said the Band probably will in the 23 near future lay a claim to the one 24 hundred and nine (109) acre park." 25 Now, have you -- were you aware of the
451 information prior to September 1995 that -- 2 A: Not that I can recollect. 3 Q: So, this information about the lands 4 being taken from the Indians illegally in 1900 or so was 5 something that you never were aware about even before 6 today? 7 MS. SUSAN VELLA: Well... 8 COMMISSIONER SIDNEY LINDEN: Well... 9 MS. SUSAN VELLA: Well... 10 COMMISSIONER SIDNEY LINDEN: I'm sorry, 11 are you referring to -- 12 MS. SUSAN VELLA: Before today? 13 COMMISSIONER SIDNEY LINDEN: -- being 14 aware of it at this time or today, like -- 15 MR. VILKO ZBOGAR: Well, before having 16 seen this document. 17 COMMISSIONER SIDNEY LINDEN: Well, this 18 document is 1975 is it; that's different than -- than 19 today. 20 MR. VILKO ZBOGAR: Right. I'm -- I'm 21 referring to this document as explaining what the issues 22 were and I want to know if Mr. Kobayashi was aware that 23 this issue was out there. 24 COMMISSIONER SIDNEY LINDEN: In 1975? 25 MR. VILKO ZBOGAR: Hmm hmm.
461 COMMISSIONER SIDNEY LINDEN: Or -- 2 MR. VILKO ZBOGAR: If he was aware that 3 there have -- there had in the past been claims made 4 based on this issue in 1975 or at other times. 5 MS. SUSAN VELLA: Well, but the -- 6 COMMISSIONER SIDNEY LINDEN: But the 7 question is, when is it that you're interested in his 8 awareness or lack of awareness? 9 MR. VILKO ZBOGAR: Well, my particular 10 interest right now is finding out about the issues that 11 were going on around 1975, so... 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 MS. SUSAN VELLA: In fairness he asked 14 general questions of Mr. Kobayashi about whether he was 15 aware of there being the potential of a land claim back 16 in the 1970's. Mr. Kobayashi said no. 17 Now, he's using documents I guess to 18 attempt to refresh his memory, but if Mr. Kobayashi 19 hasn't seen the documents and it can't refresh his memory 20 then perhaps we should move on. 21 COMMISSIONER SIDNEY LINDEN: We're not 22 getting very far. We're not getting very far are we? 23 MR. VILKO ZBOGAR: I -- I am trying to 24 see if there is -- if any of that information jogs his 25 recollection. I suspect that it -- it doesn't.
471 COMMISSIONER SIDNEY LINDEN: Well, just-- 2 MR. VILKO ZBOGAR: If it doesn't, I'm 3 happy with that and we'll move on. 4 COMMISSIONER SIDNEY LINDEN: Okay. Let's 5 keep moving along then. 6 MR. VILKO ZBOGAR: Yeah. 7 8 CONTINUED BY MR. VILKO ZBOGAR: 9 Q: But, I do want to connect that 10 documentation to the current era and Tab 18 of the 11 document brief before you, and it's Document Number 12 1003315. Actually sorry, this is still in 1975 era. 13 This is a letter dated November 10th, 1975 14 and it refers to Indian land claims in the southwestern 15 region and it's authored by Gregor Robinson of the 16 Ministry of Natural Resources. 17 And on the second page of that document is 18 reference to Stoney Point Indian Reserve. Do you see 19 that? 20 A: Yes. 21 Q: If you go to the bottom of that page 22 there's a reference to the news article I just took you 23 to. 24 A: Yes. 25 Q: And the page over says:
481 "The article -- 2 COMMISSIONER SIDNEY LINDEN: Perhaps you 3 should ask him if he's ever seen this document before. 4 MR. VILKO ZBOGAR: Well -- 5 COMMISSIONER SIDNEY LINDEN: Has he ever 6 seen this document -- 7 8 CONTINUED BY MR. VILKO ZBOGAR: 9 Q: Have you ever seen this document 10 before? 11 A: I have not. Just last night. 12 Q: Just last night? 13 A: Yes. 14 Q: Okay. If I could turn you to page 3 15 of this document after it refers to the newspaper article 16 it says: 17 "The article then goes on to detail 18 Chief Shawkence's description of the 19 basis of the claim as outlined above. 20 It is clear that Indian action on this 21 matter is imminent. Having been 22 forewarned MNR should secure a legal 23 and historical analysis of this 24 situation as soon as possible." 25
491 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: And your 4 question is? 5 6 CONTINUED BY MR. VILKO ZBOGAR: 7 Q: My question is: Are you aware of any 8 such analysis having taken place between 1975 and 1995 9 into the issues raised by Charles Shawkence? 10 COMMISSIONER SIDNEY LINDEN: I -- I think 11 you asked that question before. 12 THE WITNESS: No. I would have to say 13 no. 14 COMMISSIONER SIDNEY LINDEN: I think. I 15 be wrong, but I think you've asked the question. I mean 16 you're trying to refresh his memory, but I think you've 17 asked the question. Anyway, carry on. 18 MR. VILKO ZBOGAR: I'm not going to 19 debate it, I don't think it's -- going into a debate on 20 it. 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. VILKO ZBOGAR: 25 Q: And in particular -- well, the reason
501 I took you to that is because I want to connect -- I do 2 want to connect you to the current era. And Tab 19 of 3 your document brief is -- is a memo dated September 11th 4 of 1995 under the heading of the Ontario Native Affairs 5 Secretariat. 6 I take it you wouldn't have seen this 7 document before yesterday either? 8 A: I don't believe I have. 9 Q: Right. And I know there was some 10 issues as to the accuracy of some of the comments on -- 11 in that page. I want to refer you to the second last 12 paragraph which connects to what we just looked at and it 13 says: 14 "Although the potential claim was 15 identified as a priority for 16 research --" 17 This was in reference to 1975: 18 "Although the potential claim was 19 identified as a priority for research 20 on claims in the MNR southwestern 21 region, research was not undertaken by 22 the former office of the Indian 23 Resource Policy, MNR at the time or 24 subsequently by any other Ontario 25 government ministry."
511 And that's consistent with what you know 2 about this situation? 3 A: I don't know of any research that was 4 completed between '75 and 1995 specifically to address 5 this, no. 6 Q: Okay. Does it strike you at all that 7 twenty (20) years after MNR forewarns that Indian action 8 on this issue was imminent, that there was, in fact, 9 Indian action in the form of an occupation of the Park? 10 A: I can't speculate on that. 11 MS. SUSAN VELLA: Excuse me. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MS. SUSAN VELLA: I think the -- unless 14 My Friend has evidence to the contrary, I don't think 15 it's ever been established that a claim was, in fact, 16 asserted in 1975 or thereafter. Certainly not prior to 17 the -- 18 COMMISSIONER SIDNEY LINDEN: The 19 occupation. 20 MS. SUSAN VELLA: -- the incident at the 21 Park. So I don't understand the basis of this question. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 He's -- 24 MR. VILKO ZBOGAR: The base of the 25 question is simply to point out there -- there -- these
521 are ongoing longstanding issues and whether a formal 2 process was followed or not. It's apparent that these 3 were live issues throughout. 4 COMMISSIONER SIDNEY LINDEN: But he 5 doesn't know. He didn't know about them. 6 MR. VILKO ZBOGAR: Right, he didn't know 7 about them. 8 COMMISSIONER SIDNEY LINDEN: So I don't 9 know what more you can get from him. 10 MR. VILKO ZBOGAR: Okay. That's fine 11 I'll move on. 12 MS. SUSAN VELLA: I'm sorry, I should 13 have said to '93 not '95, there was some research done at 14 that time. 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MR. VILKO ZBOGAR: 19 Q: I'm going to go into a completely 20 different area, if I can. Starting with your production 21 number 72. 22 COMMISSIONER SIDNEY LINDEN: You mean the 23 Commission brief? 24 MS. SUSAN VELLA: Commission Counsel 25 brief I need, please.
531 COMMISSIONER SIDNEY LINDEN: I think. 2 MR. VILKO ZBOGAR: Yeah. This is Exhibit 3 P-850. 4 COMMISSIONER SIDNEY LINDEN: I'm sorry, 5 72, is that the tab? 6 MR. VILKO ZBOGAR: 72 of the Commission's 7 brief, Exhibit P-850, Inquiry Document 1010376. 8 COMMISSIONER SIDNEY LINDEN: Exhibit 850? 9 MR. VILKO ZBOGAR: Yes. 10 COMMISSIONER SIDNEY LINDEN: Have you got 11 that, Mr. Kobayashi? 12 THE WITNESS: Yes, I do. Thank you. 13 Yes. 14 15 CONTINUED BY MR. VILKO ZBOGAR: 16 Q: I want to ask you about this 17 particular reference to firecrackers that appears in the 18 first paragraph. It says: 19 "At approximately 11:15 a.m. [and this 20 is in reference to June 28, 1993]. 21 At approximately 11:15 a.m. I was 22 advised of an incident at Ipperwash 23 Park last evening. Native persons were 24 igniting fireworks in the dunes area 25 just north of Ipperwash Park on Camp
541 Ipperwash." 2 And it notes that that was disturbing 3 campers and a noise complaint was lodged; do you see 4 that? 5 A: I believe so. I'd have to look at 6 the individual occurrence report to tie it into the date 7 and time. But, I believe that. 8 Q: You were aware that -- 9 A: Yes. There were fire -- 10 Q: -- at this time and other times there 11 are firecrackers being set off? 12 A: That is correct. That is correct. 13 Yes. 14 Q: It's a fairly common thing, isn't it, 15 firecrackers from time to time? 16 A: Yes. 17 Q: And particular firecrackers being set 18 off in the army camp lands, that has happened more than 19 once? 20 A: I would say more than once there was 21 some occurrences on that. 22 Q: And are you aware that on some of 23 those occasions where there's reports of hearing 24 firecrackers that there are coinciding reports on some of 25 those occasions by some campers that they heard gunfire?
551 A: I didn't tie the two (2) collectively 2 together at the same time, from my recollection at any 3 rate. 4 Q: Okay. 5 A: I passed on the current -- the 6 occurrence reports as individual occurrence reports 7 because they were different complainants. 8 Q: Okay. Now, I want to explore that a 9 little bit, if I can. And first of all, at Tab 20 -- 10 MS. SUSAN VELLA: Of? 11 MR. VILKO ZBOGAR: Of my document brief, 12 sorry. 13 14 CONTINUED BY MR. VILKO ZBOGAR: 15 Q: And this is Inquiry document number 16 7000589. And this is a production of the Federal 17 Government. I don't anticipate you've seen this before. 18 A: I have not. 19 20 (BRIEF PAUSE) 21 22 Q: Now, in connection with my question 23 about the apparent connection between reports of gunfire 24 and reports of firecrackers, I want to refer you to -- 25 COMMISSIONER SIDNEY LINDEN: What is this
561 document? This -- 2 MR. VILKO ZBOGAR: I'm not entirely sure. 3 COMMISSIONER SIDNEY LINDEN: -- I see it, 4 but I don't know where -- 5 MR. VILKO ZBOGAR: This is a production 6 of the Federal Government -- 7 COMMISSIONER SIDNEY LINDEN: Yes. I just 8 don't know what it is. Is it an occurrence report or 9 something? I can't tell from it, what it is. 10 MR. VILKO ZBOGAR: It seems to be a log 11 of some sort. I -- it's a fairly lengthy document, so I 12 don't have the complete thing available. 13 If I can just have your indulgence for one 14 moment, I can maybe identify that for you. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: It looks 19 like it could be an occurrence report of some sort. 20 21 (BRIEF PAUSE) 22 23 MR. VILKO ZBOGAR: I'm having a little 24 trouble identifying it. The -- the database described it 25 as a bundle of documents which came from the Federal
571 Government containing a number of various reports on 2 various matters. 3 COMMISSIONER SIDNEY LINDEN: Okay. 4 MR. VILKO ZBOGAR: It's very vague and I 5 apologize for that. 6 COMMISSIONER SIDNEY LINDEN: No, that's 7 all right. What do you want to ask him about it? 8 MR. VILKO ZBOGAR: What I do want to -- 9 and it appears to be an official document of some sort, 10 just by its appearance. 11 12 CONTINUED BY MR. VILKO ZBOGAR: 13 Q: You'll see on the top left hand 14 corner of those pages there are page numbers? 15 A: Yes. 16 Q: And I want to turn you to page number 17 7 of that document? 18 A: Yes. 19 Q: And it seems to connect to the 20 document that we've referred of yours, in -- at Tab 72 of 21 the Commission's brief. 22 And item number "G" says: 23 "At 00:05 hours, 28 June '93, source 24 "D" reported Ipperwash campers had 25 heard fire crackers type noise coming
581 from area. GR-228852, [then in 2 brackets it says] (confirmed)." 3 Do you see that? 4 A: Yes. 5 Q: And it goes on to say: 6 "These sounds could have been poss -- 7 could have been possibly come from 8 light calibre weapons [and in brackets] 9 (unconfirmed)." 10 Do you see that? 11 A: Yes. 12 Q: Now you -- you have no indication at 13 all that on that night there was any gunfire or weaponry 14 being fired? 15 A: It would be speculation on my part. 16 Q: It would be spec -- and I -- in 17 respect to -- 18 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 19 Myrka...? 20 You want to wait until your Counsel makes 21 his objection? 22 OBJ MR. WALTER MYRKA: Mr. Commissioner, the 23 difficulty that I'm having is that when he's asked that 24 he has no confirmation of any of this, he's not being 25 referred to any of the occurrence reports, and perhaps if
591 there's one there that reflects the events in question, 2 then it's a fair question. 3 He can -- he can be asked to review it. 4 But he's essentially being asked, as if he has 5 encyclopaedic knowledge of each and every one of these 6 incidents, and I don't think it's fair to ask the 7 question in that manner. 8 That's the basis of my objection. 9 COMMISSIONER SIDNEY LINDEN: Yes, Mr. -- 10 MR. VILKO ZBOGAR: I'd like to respond to 11 that. I took Mr. Kobayashi to Tab 72 of his document 12 brief which deals specifically with this particular 13 issue. 14 COMMISSIONER SIDNEY LINDEN: Just a 15 minute. 16 MR. VILKO ZBOGAR: It's referencing his 17 e-mail to firecrackers being heard and disturbing 18 campers. There's no reference in his e-mail to gunfire. 19 COMMISSIONER SIDNEY LINDEN: No, but he 20 said -- 21 MR. VILKO ZBOGAR: So I take it from that 22 that he's aware of this incident. I'm not aware of any 23 other occurrence report in the database that reports this 24 incident. 25 COMMISSIONER SIDNEY LINDEN: Oh, okay.
601 So in the document he makes reference to firecrackers. 2 He said when he was asked that he would like to see the 3 occurrence report. 4 MR. VILKO ZBOGAR: Right. 5 COMMISSIONER SIDNEY LINDEN: So if you 6 could keep it connected, but as far as you know you 7 couldn't find it? 8 MR. VILKO ZBOGAR: And it wasn't -- if 9 it's in there -- 10 COMMISSIONER SIDNEY LINDEN: Right. 11 MR. VILKO ZBOGAR: -- it's buried in 12 there somewhere. 13 COMMISSIONER SIDNEY LINDEN: Right. Now, 14 I want to see what your question is now with respect to 15 this and how it connects back to that. 16 17 CONTINUED BY MR. VILKO ZBOGAR: 18 Q: The question's simply this: If there 19 were reports of gunfire around that time, you have no 20 recollection -- well, you have no recollection that there 21 were -- there was gunfire at the time, you only know that 22 there were firecrackers at the time, right? 23 A: I would have to go back to the 24 occurrence reports because we did have reports of gunfire 25 as well.
611 Q: Right. And when you say, "have 2 reports of gunfire," that's people hearing things that 3 sound like gunfire, right? 4 A: They were complaining about hearing 5 gun -- gunshots, yes. 6 Q: All right. Did you ever have 7 complaints about people seeing firearms discharged from 8 First Nations people? 9 A: Not to my recollection. 10 COMMISSIONER SIDNEY LINDEN: Some of the 11 occurrence reports that Mr. Roland put in yesterday made 12 specific reference to complaints about hearing gunshots. 13 MR. VILKO ZBOGAR: Yes. 14 COMMISSIONER SIDNEY LINDEN: You're aware 15 of that? 16 MR. VILKO ZBOGAR: I'm aware that there 17 are -- 18 COMMISSIONER SIDNEY LINDEN: Yeah. 19 MR. VILKO ZBOGAR: -- reports of hearing 20 gunshots through a lengthy period of time. I'm also 21 aware that there are reports of hearing firecrackers. 22 COMMISSIONER SIDNEY LINDEN: Yes. So 23 that's why, if you're trying to connect them, if there's 24 a document -- 25 MR. VILKO ZBOGAR: There is and I'm
621 getting to that actually. 2 COMMISSIONER SIDNEY LINDEN: You're 3 getting to it? 4 MS. SUSAN VELLA: Well, yeah. And I just 5 -- just for clarification I've been reviewing the 6 original Natural -- National Defence Document Report and 7 it documents an event which occurred on June the 23rd, 8 2003. The event in Tab 72, Exhibit P-850 appears to 9 document an event that occurred on June the 27th, 1993. 10 COMMISSIONER SIDNEY LINDEN: I'm sorry, 11 the document in here is -- 12 MS. SUSAN VELLA: June 23rd. 13 COMMISSIONER SIDNEY LINDEN: 2000? I 14 thought I saw a '93 date on this document. 15 MS. SUSAN VELLA: No, no. It's a -- June 16 -- no, but it's June 23rd -- sorry, 1993. 17 COMMISSIONER SIDNEY LINDEN: '93. 18 MS. SUSAN VELLA: Sorry, it's '93. 19 COMMISSIONER SIDNEY LINDEN: You said 20 2003 -- 21 MS. SUSAN VELLA: But, the point is June 22 23rd -- 23 COMMISSIONER SIDNEY LINDEN: Yeah. 24 MS. SUSAN VELLA: -- versus June 27th. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
631 MS. SUSAN VELLA: So I'm not sure it is 2 the same event, at least not on the face of the 3 documents. 4 COMMISSIONER SIDNEY LINDEN: All right. 5 You're -- 6 MR. VILKO ZBOGAR: Maybe the number's not 7 clear on the document. The -- the document at Tab 20 8 that I referred you to, the -- the -- Canada's report 9 about that issue refers to at 00:05 hours on 28th 10 June/93, and your e-mail Tab 72 talks about -- it's dated 11 June 28th, 1993 and refers to an incident the previous 12 evening so -- which potentially connects to something 13 that happened at or around midnight. So I don't -- 14 COMMISSIONER SIDNEY LINDEN: All right. 15 MR. VILKO ZBOGAR: I think they are -- 16 they are connected, I don't know if there's two (2) 17 separate incidents, but -- 18 COMMISSIONER SIDNEY LINDEN: You 19 mentioned that you were going to try to connect it now, 20 so let's see where you're taking us now. 21 MS. SUSAN VELLA: I think that's a typo, 22 is the problem. 23 MR. VILKO ZBOGAR: It's hard to see. 24 MS. SUSAN VELLA: The problem is I think 25 there's a typo in the typed version of the document, but
641 there's also a handwritten version of the same incident 2 report in that bundle of documents that clearly says the 3 23rd; that -- that's my difficulty with this. 4 COMMISSIONER SIDNEY LINDEN: All right. 5 Let's see where you're going now. 6 7 CONTINUED BY MR. VILKO ZBOGAR: 8 Q: Well, I know there was a number of 9 incidents in the intervening years between '93 and '95 10 where there were reports of either firecrackers or 11 gunfire being heard. 12 I want to skip ahead to the Labour Day 13 weekend of 1995, because we do have some detailed 14 information about that. And that's at Tab 21 of the 15 cross-examination brief I have before you and it's 16 Inquiry Document 1002055. 17 Do you have that document? 18 A: Yes. 19 Q: Have you seen this before? 20 A: Last night. 21 Q: Last night? This is a Special 22 Investigations Unit followup report dated November 9th, 23 1995 or actually November 6th, 1995 apparently submitted 24 by Jim Kennedy, an SIU investigator. And what this 25 appears to be, according to the description in that
651 document, is comments that were made by various campers 2 who had spent some time at the Park during the Labour Day 3 weekend to the SIU investigator. 4 And I want to take you through some of 5 those because I think they're -- they're important and 6 they connect the two (2) issues that I've been talking 7 about. 8 9 (BRIEF PAUSE) 10 11 Q: I'm just going to go on to refer you 12 to all the incidents where firecrackers or gunfire are 13 mentioned. Starting on page 2 of 10 there's a report by 14 a camper that kids were lighting off firecrackers. 15 Do you see that? 16 A: Yes. 17 Q: And the next -- and they were in the 18 Park from September 1st to September 4th. The next 19 camper says who is at the Park at the same time. Says 20 she did hear shots right around sunset on Sunday. 21 Do you see that? 22 A: Is that under the next part? 23 Q: The next -- the next individ -- the 24 next camper on -- we will refer to first names for 25 anonymity and the first name is Ron.
661 A: Yes. 2 Q: And it says Investigator Kennedy -- 3 A: Yes, yes. 4 Q: -- said she did hear shots right 5 around sunset on Sunday. 6 "This noise was coming from the beach. 7 A lot of people went running down there 8 when these gunshots went off." 9 A: Yes. 10 Q: Then the last person on that page, 11 there's comments from them that go onto the following 12 page, on page 3 of 10 it says -- the third last line or 13 fourth last line of that large paragraph. 14 "There was not shots. But there was a 15 big bonfire and some Americans were 16 setting off firecrackers within the 17 Park." 18 Do you see that? 19 A: Yes. 20 Q: On page 4 of 10, the person 21 referenced is Natasha. It says: 22 "Investigator spoke with her common- 23 law, he stated that he heard no 24 shots." 25 Do you see that?
671 A: Yes. 2 Q: And three (3) people down it's -- the 3 camper says she heard no gunshots. 4 A: Yes. 5 Q: I note that all these people I've 6 referenced so far were at the Camp. It's in the same 7 period of time, approximately, from September 1st or 2nd 8 through to September 4th. 9 MS. SUSAN VELLA: They're seen at the 10 Park, not the camp. 11 MR. VILKO ZBOGAR: Oh, sorry at the Park. 12 Right. 13 THE WITNESS: Yes. 14 15 CONTINUED BY MR. VILKO ZBOGAR: 16 Q: Then turning onto page 5 it says, the 17 very first entry says: 18 "The investigator spoke with an 19 individual who said he heard 20 firecrackers but there was no real 21 problem." 22 Right? 23 A: Yes. 24 Q: And then under the heading, "People 25 contacted on October 10th, 1995." Second individual
681 says: 2 "No gunshots but did hear name calling 3 and firecrackers." 4 A: Yes. 5 Q: The following person says: 6 "Did not hear any gunshots but heard 7 fireworks." 8 A: Yes. 9 Q: The following person says: 10 "Nothing unusual, but did hear 11 fireworks." 12 A: Yes. 13 Q: Turning over to the next page, page 14 6, the second camper says: 15 "She heard fireworks and observed cars 16 driving." 17 A: Yes. 18 Q: The following person says: 19 "There were -- there was no gunshots 20 that he heard." 21 A: Yes. 22 Q: And again all these people were at 23 the Park on a Labour Day weekend through September 4th, 24 1995, right? 25 A: I can't add -- I can't say they were
691 in the area. 2 Q: According to this document. 3 A: Yes. 4 Q: The second entry from the bottom on 5 page 6 says: 6 "They were burning wooden pallet skids, 7 loud car speakers, but no gunshots." 8 A: Correct. 9 Q: Turning over to page 7 of 10. This 10 second last camper says: 11 "Nothing really stood out other than a 12 large bonfire and she never heard any 13 gunshot." 14 A: Yes. 15 Q: The last person on that page says: 16 "He did hear gunshots coming from the 17 army camp side right near dusk around 18 eight o'clock p.m." 19 A: Yes. 20 Q: The last camper on page 8 says: 21 "She did not hear any shots." 22 A: Yes. 23 Q: The third person on page 9 of 10, and 24 I think it's particularly interesting, she says: 25 "She stated she heard gunshots. [Then
701 it says] She saw a car stuck in the 2 beach. First Nations people were very 3 rude and had been drinking. [Then 4 says] When asked, Could those shots be 5 firecrackers, she admitted that they 6 might have been fire crackers." 7 Do you see that? 8 A: Yes. 9 Q: The following camper says he heard no 10 gunshots. 11 A: Yes. 12 Q: The last camper on the page says he 13 heard no gunshots. 14 A: Yes. 15 Q: The first camper on page 10 says 16 there were no gunshots. 17 A: Yes. 18 Q: Now third para -- third camper on 19 page 10 says, that there were gunshots. 20 A: Yes. 21 Q: Now, I note that again, that all of 22 the individuals that I referred to were there on the 23 Labour Day weekend on Sept -- through September 4th -- 24 3rd and 4th, as reported in the document that I put to 25 you.
711 MS. SUSAN VELLA: Well, I just think for 2 clarification, not all of the campers were there from the 3 1st to 4th. There are various dates within that. I 4 don't think it's material. I don't think we should 5 overstate the situation. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 He -- I presume you don't have any independent knowledge 8 of this, just what's in the document? 9 THE WITNESS: No. 10 11 CONTINUED BY MR. VILKO ZBOGAR: 12 Q: All right. Now I want to ask you 13 about whether -- now, you had staff that were working the 14 Park the Labour Day weekend -- 15 A: Correct. 16 Q: -- which is the period that was the 17 subject of this investigation. Did your staff report to 18 you -- any of your staff report to you that there were 19 gunshots being heard, that you can recall? 20 A: I don't recall. There was obviously 21 -- we saw occurrence reports yesterday that indicated so, 22 yes, whether it'd be that particular weekend, on the 23 Labour Day weekend, I'm not sure -- 24 Q: Okay. 25 A: -- you'd have to refresh my mind --
721 memory by looking at the occurrence reports. 2 Q: Do you recall whether there was 3 anything in there that talks about it from your memory 4 right now, or do you need to look at those documents? 5 A: If we could look at the occurrence 6 reports that would -- 7 Q: Maybe we could just -- 8 A: -- for that -- that particular 9 weekend, would be fine. 10 Q: Yeah, can I ask you to do that. 11 MS. SUSAN VELLA: It's Exhibit P-902. 12 MR. VILKO ZBOGAR: And maybe the 13 Registrar can put that exhibit to you. 14 15 (BRIEF PAUSE) 16 17 THE WITNESS: Thank you. Now, the 18 question was again? 19 MR. WALTER MYRKA: Just so I'm clear, 20 Commissioner, because right now I'm not, are these 21 occurrence reports that -- in Exhibit 902, that refer to 22 the Labour Day weekend that we've just been discussing -- 23 COMMISSIONER SIDNEY LINDEN: I don't 24 know. We have to look at them. I think that's what 25 we're doing.
731 MS. SUSAN VELLA: No, I think the last 2 one, actually, is August 31st '95 as I look at them. 3 MR. WALTER MYRKA: Then -- 4 COMMISSIONER SIDNEY LINDEN: The others 5 are all earlier, are they? 6 MS. SUSAN VELLA: Looks like it. 7 MR. WALTER MYRKA: Then they -- 8 COMMISSIONER SIDNEY LINDEN: It does -- 9 MR. WALTER MYRKA: -- can't assist the 10 Witness at all in answering the question about -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. WALTER MYRKA: -- what were in the 13 occurrence reports for the Labour Day weekend, September 14 3rd to 4th -- 15 COMMISSIONER SIDNEY LINDEN: There -- 16 MR. WALTER MYRKA: -- '95. 17 COMMISSIONER SIDNEY LINDEN: They're an 18 earlier time period, I think. 19 MR. VILKO ZBOGAR: Thank you. I didn't 20 see the -- the documents -- 21 COMMISSIONER SIDNEY LINDEN: Well -- 22 MR. VILKO ZBOGAR: -- weren't 23 distributed, so I didn't know the specific contents of 24 them, but if that's the case then I don't think it helps 25 us to look at those documents.
741 2 CONTINUED BY MR. VILKO ZBOGAR: 3 Q: But, you don't recall -- this is just 4 prior to the occupation beginning, you don't recall 5 hearing that during that weekend there were gunfire -- 6 there was gunfire coming from the Base adjacent to the 7 Park? 8 A: I don't recollect. However, I would 9 want to look at the occurrence reports for that 10 particular weekend before I said yes or no. 11 Q: You don't recall telling the OPP or 12 anybody else that you had heard gunfire or your staff had 13 heard gunfire coming from the Army Camp the day before 14 the occupation began or maybe two (2) days before the 15 occupation began? 16 A: I don't recall. 17 Q: Now, you know you need to be cautious 18 when you do receive reports about gunfire because 19 sometimes people -- you know that sometimes people might 20 hear things differently or some people might think that's 21 what's actually a firecracker is gunfire? 22 A: Correct. We report what -- what the 23 complaint is and we don't speculate on whether it's a 24 gunfire or fire -- fireworks. 25 Q: If somebody hears --
751 A: If it's reported to us as -- as 2 fireworks, then we record it on the occurrence reports as 3 fireworks. 4 Q: Yes. 5 A: If it's reported to us that it's 6 gunshots, then it goes on to the occurrence repots as 7 gunshots. 8 Q: Hmm hmm. 9 A: Then in -- in respect to gunshots, it 10 would then be a matter for the Ontario Provincial Police 11 to deal with, because it's -- it's a serious matter. 12 Q: Okay. So, in other words, if 13 somebody hears a firework going off and thinks it's a 14 gunshot and reports it as being a gunshot, that's what 15 goes in the occurrence report? 16 A: That would have gone to an occurrence 17 report, yes. 18 Q: And if somebody hears a gunshot going 19 off and thinks it's a firework, they'll tell you it's a 20 firework and that what -- that's what may go into an -- 21 an occurrence report? 22 A: I believe so. Yes. 23 Q: I take it, as a Park superintendent 24 or somebody who's had some experience in -- in provincial 25 parks, you're an expert in many things; one (1) of them
761 is probably firecrackers, to some degree. You've -- 2 you've heard -- you know you have -- 3 A: I have heard firecrackers, yes. 4 Q: And you're familiar with the ones 5 that -- strung together that you light one (1) off and it 6 goes off in a -- in a whole series, a rapid succession of 7 -- of bangs? 8 A: Of course. 9 Q: Yeah. 10 A: Am I an expert? No. 11 Q: You're not an -- well, I was being a 12 bit flippant, but this is something that goes on on a 13 fairly -- 14 A: From time to time -- 15 Q: -- frequent basis? 16 A: -- in provincial parks, fireworks do 17 go off, yes. 18 Q: Actually, what I'd like to do is show 19 you a particular item. I'm wondering if, Mr. Registrar, 20 you can hand this up to the Witness? 21 COMMISSIONER SIDNEY LINDEN: What is 22 this? What is this? 23 24 (BRIEF PAUSE) 25
771 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 2 just want to know what it is. Is it fireworks? It's a 3 package of fireworks. 4 MR. VILKO ZBOGAR: It's a package of 5 fireworks. Just one (1) quick question about these. 6 THE WITNESS: Yes. 7 8 CONTINUED BY MR. VILKO ZBOGAR: 9 Q: Those are fireworks that you have in 10 -- or firecrackers that you have in your hand, right? 11 It's a little red package of about sixteen (16) little 12 firecrackers. 13 A: You're confirming these are 14 firecrackers, then, yes. 15 Q: You -- are you familiar with those? 16 You've seen -- 17 A: I am not familiar with these 18 particularly, but I -- I've seen firecrackers before, 19 yes -- 20 Q: You've seen things like that? 21 A: -- or fireworks -- these are 22 fireworks I would assume, yes. 23 Q: Now, I'm not saying you've seen this 24 particular brand or particular kind before, but you're -- 25 this is similar to the kinds that you may have seen that
781 are strung together, you light one (1) off and it goes 2 off in a series of bangs. 3 MS. SUSAN VELLA: I -- I'm -- I'm -- 4 COMMISSIONER SIDNEY LINDEN: I -- 5 OBJ MS. SUSAN VELLA: -- compelled to object 6 at this point in time. 7 COMMISSIONER SIDNEY LINDEN: Good. 8 MS. SUSAN VELLA: My Friend has 9 established that campers have identified at the same time 10 gunshots and firecrackers. To -- to pursue this 11 particular Witness' ability to identify firecrackers, to 12 me, is beyond the -- beyond -- beyond belief in terms of 13 any assistance to this Inquiry. 14 COMMISSIONER SIDNEY LINDEN: Yes, I don't 15 think we need to do any more about this. I mean -- 16 MR. VILKO ZBOGAR: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- we all 18 know that there are firecrackers that are together and 19 they can go off in a series. I mean -- 20 MR. VILKO ZBOGAR: Okay. 21 COMMISSIONER SIDNEY LINDEN: -- that's 22 something that we need a lot of evidence and certainly 23 don't need -- 24 MR. VILKO ZBOGAR: Yes. 25 COMMISSIONER SIDNEY LINDEN: -- expert
791 evidence. 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: And -- and you've -- you've heard 5 them go off before, right? You've heard firecrackers 6 like that? 7 A: Yes. 8 Q: And -- and they do sound a little 9 like gunshots, especially from a distance, to you, don't 10 they? 11 MS. SUSAN VELLA: Well -- 12 COMMISSIONER SIDNEY LINDEN: Well, I 13 don't think -- 14 MS. SUSAN VELLA: No, I think this is -- 15 COMMISSIONER SIDNEY LINDEN: I think 16 there's no way that this -- 17 MS. SUSAN VELLA: First -- first of all 18 there's -- there's lots of fireworks in -- in the world 19 and some may sound like guns and some may not sound like 20 guns, but it's not helping us connect -- 21 COMMISSIONER SIDNEY LINDEN: No. 22 MS. SUSAN VELLA: -- the events -- 23 COMMISSIONER SIDNEY LINDEN: No. 24 MS. SUSAN VELLA: -- for -- for September 25 4th, 5th, and 6th.
801 COMMISSIONER SIDNEY LINDEN: You can make 2 that argument at the appropriate time. 3 MR. VILKO ZBOGAR: I guess I -- I suppose 4 I could light those to demonstrate, but I don't have any 5 intention to attract the Forest Fire Department today. 6 COMMISSIONER SIDNEY LINDEN: No, I don't 7 think that's a good idea. I don't recommend it. 8 MR. VILKO ZBOGAR: Or the SWAT team for 9 that matter. 10 COMMISSIONER SIDNEY LINDEN: I do want to 11 ask you where you are now in terms of your timing. 12 You're almost at the end of your estimate. 13 MR. VILKO ZBOGAR: I'm taking about an 14 hour and a half. 15 COMMISSIONER SIDNEY LINDEN: You took 16 three-quarters of an hour and an hour and a quarter. 17 You've taken two (2) hours. You've taken two (2) hours. 18 MR. VILKO ZBOGAR: So, I'm at the two (2) 19 hours, I estimated two and a half (2-1/2) to three (3) 20 hours. I think I'll -- 21 COMMISSIONER SIDNEY LINDEN: You're 22 pretty close then? 23 MR. VILKO ZBOGAR: -- probably need most 24 of that time, the remaining hour -- 25 COMMISSIONER SIDNEY LINDEN: You
811 estimated two and a half (2 1/2) hours and you've used 2 two (2) hours so I'm just wondering where you are. 3 MR. VILKO ZBOGAR: I think estimated two 4 and a half (2 1/2) to three (3). I think I'll be at 5 least another half an hour, maybe an hour. 6 COMMISSIONER SIDNEY LINDEN: Another half 7 hour? All right, let's go. I'm just wondering where -- 8 MR. VILKO ZBOGAR: And I'm in your hands 9 as to when you'd like to take a break. 10 COMMISSIONER SIDNEY LINDEN: I would like 11 to take a break; that's one (1) of the reasons I've asked 12 is if you're getting close I'd let you finish, but if 13 you're not then we should take a break. 14 MR. VILKO ZBOGAR: I will be another half 15 hour at least, I think. 16 COMMISSIONER SIDNEY LINDEN: Well -- 17 MR. VILKO ZBOGAR: So, if you want to 18 take one now I'm in your hands; if you want me to go on 19 for a little -- 20 COMMISSIONER SIDNEY LINDEN: If you were 21 to be a half -- well, I think we should take a break by 22 half past 10:00, no later than 10:30. So, let's do it 23 now. Let's take a break now and see where you are. 24 THE REGISTRAR: This Inquiry will recess 25 for fifteen (15) minutes.
821 2 --- Upon recessing at 10:17 a.m. 3 --- Upon resuming at 10:34 a.m. 4 5 THE REGISTRAR: This Inquiry is now 6 resumed. Please be seated. 7 8 CONTINUED BY MR. VILKO ZBOGAR: 9 Q: Mr. Kobayashi, I anticipate the 10 evidence of Constable Parks and perhaps other officers is 11 that they heard -- they reported hearing fifty (50) to 12 seventy-five (75) rounds of gunfire coming from the army 13 camp overnight on September the 5th of 1995. 14 I'm just telling you that's what I 15 anticipate the evidence will be and that's what the 16 documents indicate -- 17 MS. SUSAN VELLA: Well actually in 18 fairness, I think it's fifty (50) to one fifty (150) and 19 I think that we pointed this -- some documents to Mr. 20 Kobayashi that he actually authored in that respect. Or 21 at least received copies of. 22 23 CONTINUED BY MR. VILKO ZBOGAR: 24 Q: Just so it's clear where I'm getting 25 that information from. I'm referring to for the record,
831 I don't need to pull this up but it's Document 1000379. 2 In the document Constable Park says; "There were 3 approximately fifty (50) to seventy-five (75) rounds 4 fired." 5 So that's the source of that information. 6 I know we'll hear more about that but -- 7 COMMISSIONER SIDNEY LINDEN: There's 8 another document that has a different number, but it -- 9 MS. SUSAN VELLA: Well which -- which Mr. 10 Kobayashi -- 11 COMMISSIONER SIDNEY LINDEN: Has already-- 12 MS. SUSAN VELLA: -- relayed the 13 information of. So perhaps that's the information that 14 he's familiar with. 15 COMMISSIONER SIDNEY LINDEN: Okay. 16 What's the question? What's the question? 17 18 CONTINUED BY MR. VILKO ZBOGAR: 19 Q: I want to get -- what Sergeant Graham 20 told you and that's described at paragraph 22 of your 21 affidavit which -- a sworn copy of which is at Tab 22 of 22 the document brief before you. 23 A: Yes. 24 Q: That's Exhibit P-551. 25 A: Yes.
841 Q: Part of that exhibit. In paragraph 2 22, I mean, you went through this. I just want to refer 3 you back to it. It says: 4 "I was informed by Sergeant Graham that 5 one of his team members had heard a 6 hundred (100) to a hundred and fifty 7 (150) rounds of rapid gunfire from the 8 Park during the night." 9 And you'll agree there's some difference 10 between that and what some officers appear to have 11 reported in two (2) respects. First of all, the num -- 12 the number of rounds. If -- if the evidence of Constable 13 Parks is that there was fifty (50) to seventy-five (75) 14 rounds. And I'm sure we'll hear other evidence as well. 15 This information about a hundred (100) and 16 a hundred and fifty (150) rounds is obviously different, 17 right? 18 A: Yes. Obviously. 19 Q: And -- and the report of -- well -- 20 it's an obvious question. 21 COMMISSIONER SIDNEY LINDEN: I -- 22 23 CONTINUED BY MR. VILKO ZBOGAR: 24 Q: The report about the location of the 25 source. In other words, Sergeant Graham says firearms
851 were heard coming from the Park. But the previous -- the 2 evidence that I anticipate we'll hear is that the gunfire 3 was heard within the army camp. Those -- those two (2) 4 differences. 5 And what I want to ask you about is I 6 don't know if you can recall today specifically the 7 conversation you had with Sergeant Graham and whether 8 you're sure that he told you for one that the gunfire was 9 heard in the Park as opposed to the army camp? 10 Or was that just something you inferred 11 from the information he told you? 12 A: I don't recollect to be honest with 13 you. 14 Q: And the number of rounds. That's -- 15 those numbers you got from Sergeant Graham. You didn't 16 infer them or assume them? 17 A: No. That's exactly what he said, 18 yes. 19 Q: Okay. And what you reported up to 20 your superiors was that there was a hundred (100) to a 21 hundred and fifty (150) rounds of gunfire coming from 22 within the Park? 23 A: I believe I did, yes. 24 Q: You're not aware and it wasn't -- you 25 weren't told that anybody saw firearms being discharged
861 either in the Park or in the Army Camp? 2 A: I was not told that, no. 3 4 (BRIEF PAUSE) 5 6 Q: And you -- you took Sergeant Graham's 7 word that what was reported was gunfire as opposed to 8 some other sounds, like a car backfiring or firecrackers 9 or something? 10 A: Actually, I put -- it was the 11 affidavit which I swore to, this is exactly what he told 12 me. 13 Q: Right. 14 A: Yes. 15 Q: So nobody had said that? He didn't 16 tell you that we heard fire -- we heard firearms, but 17 we're not sure if it was firearms. It could have been 18 something else. 19 He didn't tell you that? 20 A: Not to my recollection, no. 21 Q: And you're not aware of any attempts 22 to confirm that the sound heard was actually gunfire and 23 not something else? You're not aware of that? 24 A: I'm not aware that. 25
871 (BRIEF PAUSE) 2 3 Q: I want to ask you about the sandy 4 parking lot just outside the -- the Park along the road, 5 the intersection of the roadway there. 6 Now, that's municipal property, I take it? 7 A: That is municipal property, yes. 8 Q: Now is it still considered to be part 9 of the Park in some sense, in terms of MNR has some 10 responsibility to look after that land or is it totally 11 separate? 12 MS. SUSAN VELLA: Was that in the present 13 tense or did you mean back in '95? 14 15 CONTINUED BY MR. VILKO ZBOGAR: 16 Q: Back in '95. 17 A: Back in '95, it was -- it is 18 municipal land. It did occasionally blow in with sand. 19 The arrangement that we had with the municipality was 20 that we would make it -- clean up the sand and take, you 21 know, the sand drifts down and -- and maintain it so that 22 people could use it for parking and for access down to -- 23 towards the beach. 24 Q: It was your arrangement with the 25 municipality that you would be taking care of that land
881 in order to make sure that -- 2 A: We would -- 3 Q: -- it was suitable for parking on? 4 A: We would participate with them and 5 nine (9) times out of ten (10), of course, that we were 6 right there going down to the Crown beach areas that we 7 would take the tractor and clear out the drifted sand, 8 yes. 9 Q: Okay. Did you have any other 10 agreement in terms of the arrangement with that land? 11 A: That particular land? Not to my 12 knowledge. 13 Q: And you did talk about Matheson 14 Drive. I don't want to get into that. 15 Now, when you -- when your staff assisted 16 with the removal of the picnic tables from that sandy 17 parking lot on the morning of September 6th, was that 18 requested by the municipality or by somebody else? 19 A: I believe that was requested by the 20 Ontario Provincial Police. 21 Q: Okay. Did municipal officials assist 22 you when you were removing those picnic tables or your 23 staff were removing them? 24 A: I do not have that knowledge. I 25 wasn't there, actually.
891 Q: Are you aware of any ...? 2 A: I am not. 3 Q: Now, are you aware that the sandy 4 parking lot is largely within the lands that was 5 guaranteed to the First Nations people in the treaty 6 forever? 7 A: I am not aware of that. 8 9 (BRIEF PAUSE) 10 11 Q: And when -- when the occupation, I 12 guess, at points during the period of September 4th to 13 September 6th, '95 extended onto that sandy parking lot 14 area in terms of placing picnic tables or being present 15 on that property, what was your understanding of MNR's 16 role in terms of what would be expected of you when that 17 -- if and when that occurred? 18 A: Can you restate that question, 19 please? 20 Q: Okay. It appears that at times 21 during September 4th to September 5th, 1995, there was -- 22 there were occupiers either having picnic tables on that 23 sandy parking lot area, or maybe standing outside the 24 Park fence on that -- on that area or I'm not sure if 25 there were bonfires in that area, but that's possible.
901 But if those kinds of incidents occurred, 2 given that's municipal property, but given that there was 3 this arrangement with the municipality, I want to explore 4 and ask you, what was your understanding during that 5 period of time as to what MNR's role would have been if 6 the occupation extended on to that sandy parking lot? 7 MR. WALTER MYRKA: I'm sorry, 8 Commissioner, it's a long question. I'm not -- I'm not 9 clear what period of time My Friend is referring to. 10 COMMISSIONER SIDNEY LINDEN: He's 11 referring to the period of time when the occupation was 12 occurring. I gather he said that. 13 MR. VILKO ZBOGAR: I did. 14 MR. WALTER MYRKA: You did? 15 MR. VILKO ZBOGAR: Yeah. 16 MR. WALTER MYRKA: Okay. 17 MS. SUSAN VELLA: I think -- I think the 18 difficulty with the question is some parameters with 19 respect to the role, what was the MNR's role? Role in 20 relation to what? 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. VILKO ZBOGAR: 25 Q: Let me ask you this. If the
911 occupation extended outside the boundaries of the Park 2 onto that sandy parking lot, did you understand that MNR 3 would have responsibility to make sure that that land was 4 cleared or was that -- is it your understanding that that 5 would be the municipality's responsibility or somebody 6 else's responsibility. 7 MS. SUSAN VELLA: Clear to the occupants? 8 9 CONTINUED BY MR. VILKO ZBOGAR: 10 Q: Clear to the occupants and any 11 objects they make have placed on that property? 12 A: It was obviously municipality 13 property, wasn't -- is not our property. I guess my 14 understanding would be if we were asked to remove our -- 15 if you're referring to the tables, or remove or assist in 16 removing those tables, they were our tables. 17 So I assume that a decision was made to 18 move those tables or request us to move our -- take our 19 tables back. 20 Q: And if there were occupiers, 21 individuals, who were on that property, did you have an 22 understanding as to whether the Ministry would have any 23 role in taking any action in that regard, either asking 24 them to move back or -- 25 A: That wouldn't be our role to do that.
921 (BRIEF PAUSE) 2 3 Q: I'd like to turn you to Tab 90 of 4 your -- of the Commission Counsel's brief of materials. 5 A: Yes. 6 Q: This is Exhibit P-860. Actually, the 7 question I want to ask is, from time to time you were 8 aware of rumours circulating that the cottages, some of 9 the cottages around the Park or around the base, might be 10 taken over at some point. 11 You were -- those rumours were 12 circulating; you're aware of that? 13 A: Could you refer me -- which document 14 that was again? 15 Q: Okay, I'm looking at page -- Tab 90. 16 MS. SUSAN VELLA: It's Exhibit P-860. 17 18 CONTINUED BY MR. VILKO ZBOGAR: 19 Q: And -- well, let me -- let me refer 20 to a specific part of that document. It -- third line in 21 says, "the latest info or rumour", do you see that? 22 A: Yes. 23 Q: "Was that the camp water pump house", 24 this is in reference to the pump house, but then it says, 25 "The cottages on the 14th concession
931 and the barracks of the base could 2 potentially -- could be potentially 3 targeted to be damaged." 4 So I draw from that, that there were 5 rumours, at least as early as August 18th of 1993, that 6 you were aware of, that the cottages were under some 7 possible threat. 8 A: I don't recollect under what 9 conditions I wrote that, but if that's what it says, yes. 10 Q: But you were aware that -- you -- 11 aside from this document, were you generally aware of 12 that there were those rumours or beliefs out there, prior 13 to 1995? 14 A: I don't recollect -- 15 Q: Okay. Other than this particular -- 16 A: Other than this particular, yes. 17 Q: Okay. 18 19 (BRIEF PAUSE) 20 21 Q: Now, Ms. Tuck-Jackson yesterday asked 22 you a few questions about John Carson and one of them 23 was, she asked you the following -- officer John Carson: 24 "He was also hoping to do everything he 25 could to identify a spokesperson."
941 That was a question you said that's 2 correct. 3 A: Yes. 4 Q: Now, I think built into that question 5 there's two (2) -- I want to -- I want to probe it a 6 little bit more because built into that are essentially 7 two (2) things that you have to be sure about to be able 8 to answer that question. 9 One is, do -- do you know -- are you able 10 to identify everything that John Carson could have done 11 to identify a spokesperson? 12 I don't presume you are. 13 A: I -- I guess not, no, yes. 14 Q: All right. And you -- you also can't 15 possibly know whether John Carson was doing all of those 16 things to identify a spokesperson? 17 18 (BRIEF PAUSE) 19 20 Q: You can't possibly know that? 21 A: No, I couldn't. No, that's obvious, 22 but it was my impression that he was working very 23 diligently to do so, yes. 24 Q: So it was your impression -- 25 A: Yes.
951 Q: -- but when asked if -- when you were 2 asked whether John Carson was in fact doing everything he 3 could to identify a spokesperson probably the better 4 answer would have been I don't know or I can't -- 5 MS. SUSAN VELLA: I'm sorry. 6 COMMISSIONER SIDNEY LINDEN: Well, that's 7 not -- 8 MS. SUSAN VELLA: That's -- that's 9 absolutely not proper. He's indicated what his 10 impression was. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MS. SUSAN VELLA: He's been asked what 13 the basis of his impression was. 14 COMMISSIONER SIDNEY LINDEN: And he's 15 been asked and that's it. 16 MR. VILKO ZBOGAR: All I'm doing is 17 trying to distinguish between impression and knowledge. 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MS. SUSAN VELLA: Well -- 20 MR. VILKO ZBOGAR: So if he has that 21 impression that's one (1) thing, but the questions seemed 22 to imply he had some knowledge and -- 23 COMMISSIONER SIDNEY LINDEN: No. 24 MS. SUSAN VELLA: Well, I think -- 25 MR. VILKO ZBOGAR: -- I think it's clear
961 that he couldn't have. 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: And similarly when you were asked he 5 was doing everything that he could from what you could 6 observe to ascertain what the occupiers' demands were; 7 that was -- when you said that was correct that was just 8 from your impression but not from -- not from your 9 knowledge of what Mr. Carson was -- 10 MS. SUSAN VELLA: Well, hang on, I think 11 that's unfair. 12 COMMISSIONER SIDNEY LINDEN: I -- 13 MS. SUSAN VELLA: I mean obviously Mr. 14 Kobayashi was present in the -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MS. SUSAN VELLA: -- detachment so he has 17 some knowledge. 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MR. VILKO ZBOGAR: Let me -- 20 COMMISSIONER SIDNEY LINDEN: -- from what 21 he could see he was -- I mean I didn't have any 22 difficulty with the question, but I understand your 23 questions. 24 MR. VILKO ZBOGAR: All right. 25 COMMISSIONER SIDNEY LINDEN: But I mean
971 you made the point that the language used may be a bit 2 too broad. 3 MR. VILKO ZBOGAR: Yeah. 4 COMMISSIONER SIDNEY LINDEN: That's 5 really what you're saying. He couldn't possibly know 6 everything. 7 MR. VILKO ZBOGAR: Yes, and I just want 8 to be precise as to the information that's on the record 9 and if it's -- if it can be misunderstood I want to make 10 sure it's -- it's properly understood. So that's all 11 I'm trying to do. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 14 CONTINUED BY MR. VILKO ZBOGAR: 15 Q: And the -- the terminology of the 16 word, 'demands' has come up from time to time including 17 in questioning of you in terms of what were the 18 occupiers' demands. 19 Now, we've been departing from that 20 language a little bit. I want to ask you, you know you 21 may -- there -- there may not have been any formal 22 demands, but it was clear to you and it was clear from 23 you understood to John Carson that there was awareness 24 that the reasons for the occupation were connected to the 25 burial ground and a claim that it was the First Nations
981 land? 2 A: Hmm hmm. 3 Q: That was the understanding of the 4 reasons for the occupation? 5 COMMISSIONER SIDNEY LINDEN: That's a 6 question, right? 7 MR. VILKO ZBOGAR: Yes, yes. 8 COMMISSIONER SIDNEY LINDEN: You're 9 putting that in the form of a question -- 10 THE WITNESS: Yes. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 13 CONTINUED BY MR. VILKO ZBOGAR: 14 Q: So, whether or not there were any 15 specific demands made you knew what was going -- you knew 16 what was going on in terms of what led to the occupation, 17 what were, at least, some of the core issues underlying 18 the occupation? 19 You understood that? 20 COMMISSIONER SIDNEY LINDEN: That's -- 21 Yes, Mr. Myrka...? 22 MR. WALTER MYRKA: He can testify as to 23 what his understanding is. 24 COMMISSIONER SIDNEY LINDEN: That's what 25 he's being asked; that's what he's being asked I think.
991 MR. WALTER MYRKA: Yeah. And but the 2 question as I heard it presupposes that the demands that 3 he heard and understood are what led to the occupation. 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 MR. WALTER MYRKA: And he's not in a 6 position -- 7 COMMISSIONER SIDNEY LINDEN: No. 8 MR. WALTER MYRKA: -- to testify on that. 9 COMMISSIONER SIDNEY LINDEN: His 10 understanding in general terms of what it was all about; 11 that's what you're asking him? 12 MR. VILKO ZBOGAR: That's exactly what I 13 was asking. I think -- 14 COMMISSIONER SIDNEY LINDEN: If you put 15 it that way -- 16 MR. VILKO ZBOGAR: -- my questioning was 17 is that your understanding. 18 COMMISSIONER SIDNEY LINDEN: Yeah. 19 THE WITNESS: Could you ask the question 20 again? 21 MR. VILKO ZBOGAR: If I can remember it. 22 I don't think I -- 23 COMMISSIONER SIDNEY LINDEN: That's a very 24 dangerous question -- 25 MR. VILKO ZBOGAR: Hopefully I can be as
1001 eloquent as I was last time. I'll try. 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: It was -- it was clear to you -- it 5 was your -- it was clearly your understanding that there 6 were reasons behind the occupation and those reasons 7 included a claim to the burial ground and a claim to the 8 land? 9 A: I would say a claim to the land, not 10 necessarily the burial ground. 11 Q: But the burial ground issue was -- 12 you were aware of that -- that issue being raised during 13 the -- 14 A: That had been raised in 1993, yes. 15 16 (BRIEF PAUSE) 17 18 Q: And if -- if what they were I guess 19 demanding, if you will, was their land back assuming 20 that's the case, that in fact was what was accomplished 21 when they took over the Park? 22 COMMISSIONER SIDNEY LINDEN: I'm not sure 23 if -- 24 MR. VILKO ZBOGAR: Okay. Actually I'll 25 withdraw the question.
1011 COMMISSIONER SIDNEY LINDEN: Yes, I don't 2 think that's a question for this Witness. 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MR. VILKO ZBOGAR: 7 Q: Now, I don't know to what extent 8 you're familiar with the kind of negotiations that might 9 be occurring in this sort of situation. 10 Now -- and I don't know whether you could 11 answer this or not, but is it fair to say from your 12 perspectives that -- that -- and from your experience 13 that for negotiations -- for it to be successful there 14 has to be some of level of trust on both sides? 15 A: General negotiations, yes. 16 Q: All right. 17 A: I -- I believe that's your question. 18 Q: Yeah. Would -- and the reason I"m 19 asking -- I want to ask is -- is -- to ask you this: Was 20 it apparent to you that there was a lack of trust in this 21 situation at least from the First Nations perspective? 22 Is that your understanding or impression? 23 A: I don't believe that was my 24 impression from the 1993 assertion of ownership that 25 there was a lack of trust, no.
1021 Q: Was it your impression in September 2 1995 that there may have been a lack of trust? 3 A: I wasn't in negotiations so I -- I 4 really can't say that. 5 Q: Okay. Would -- was it your 6 impression that John Carson was doing whatever he could 7 to try to develop some trust? 8 COMMISSIONER SIDNEY LINDEN: You've just 9 asked the question the same way as you suggested that Ms. 10 Tuck-Jackson shouldn't have asked it; everything you 11 could. 12 MR. VILKO ZBOGAR: That's why I said was 13 it your impression or understanding. 14 COMMISSIONER SIDNEY LINDEN: Your 15 understanding, okay. 16 MR. VILKO ZBOGAR: I try to be careful, 17 Mr. Commissioner. 18 COMMISSIONER SIDNEY LINDEN: All right. 19 That's fair. 20 21 CONTINUED BY MR. VILKO ZBOGAR: 22 Q: Was it your impression or 23 understanding that John Carson was trying to build some 24 trust or doing everything that he could to build that 25 trust?
1031 A: Yes. 2 Q: Now, would it surprise you if -- well 3 would that have include -- would you have expected him or 4 did you understand him to be looking for opportunities to 5 have an intermediary perhaps come help deal with the 6 situation. 7 Did you have any knowledge or 8 understanding of that? 9 COMMISSIONER SIDNEY LINDEN: I don't see 10 how he could answer that. I really don't. 11 MR. VILKO ZBOGAR: He had meetings with 12 Mr. -- Inspector Carson and on -- I'm wondering if that 13 came up during any of the discussions and whether he had 14 an understanding that he was looking at that alternative. 15 COMMISSIONER SIDNEY LINDEN: Well, why 16 don't you ask him that? Ask him if that came up in any 17 discussions that he had with him. 18 19 CONTINUED BY MR. VILKO ZBOGAR: 20 Q: We'll let's ask you that. Did that 21 issue come up that he was exploring the possibility of 22 third parties to come into help mediate the situation? 23 A: I would say that through this thing 24 once again, that it was resolution through peaceful 25 negotiations and I understood that I wasn't a negotiator.
1041 2 Q: Yeah. Some -- some -- 3 A: So, I'm sure that he would be looking 4 to negotiate with someone. 5 Q: Okay. Either OPP would negotiate or 6 somebody else? 7 A: It wasn't myself. 8 Q: Okay. 9 A: I can definitely say that, yes. 10 11 (BRIEF PAUSE) 12 13 Q: On September 7th of 1995, the 14 evidence that we've heard is that there was an order by 15 the court following a motion brought by the Government 16 for an injunction. 17 And there was an order which stated among 18 other things that the Government of Ontario or its agents 19 could direct -- actually that a minister or a deputy 20 minister could direct staff or agents of the Government 21 to clear the Park of a property placed in there by the 22 occupiers. 23 So, that's the evidence we've heard and 24 seen -- 25 COMMISSIONER SIDNEY LINDEN: Well if
1051 you're quoting from the order. 2 MR. VILKO ZBOGAR: I can quote from the 3 order. 4 COMMISSIONER SIDNEY LINDEN: Yes. But 5 that's what you're basically doing. 6 Yes, Mr. Myrka? 7 MR. WALTER MYRKA: It just seems to me 8 that if's he going to refer him to the order, the order 9 should be placed before the witness and the particular 10 paragraph that he's going to. 11 MR. VILKO ZBOGAR: Open the -- 12 COMMISSIONER SIDNEY LINDEN: It depends 13 on the question. It's -- 14 MR. VILKO ZBOGAR: I was hoping I'd 15 condense time a little bit. I have one (1) -- one (1) 16 question 17 COMMISSIONER SIDNEY LINDEN: Yes, that's 18 right. I want you to do that. I want you to try to 19 condense the time a little bit. So, it depends on the 20 question. What's the question? 21 Perhaps he can answer the question without 22 having the actual order or the wording in front of him. 23 MR. VILKO ZBOGAR: I think I can. That's 24 what I'm trying to do. 25 COMMISSIONER SIDNEY LINDEN: Well, let's
1061 try it. 2 3 CONTINUED BY MR. VILKO ZBOGAR: 4 Q: I was wanting to know whether first 5 of all you were aware that being ordered by the court. 6 A: I never saw the order. 7 Q: Were you aware that that was part 8 of -- 9 A: Not to my knowledge, no. To my 10 recollection, no. 11 COMMISSIONER SIDNEY LINDEN: Yeah. You 12 can move on. He wasn't aware of it. 13 MR. VILKO ZBOGAR: He wasn't aware of it. 14 COMMISSIONER SIDNEY LINDEN: No. 15 16 CONTINUED BY MR. VILKO ZBOGAR: 17 Q: But, I do want to ask if -- if you or 18 your staff were asked to go into the Park and remove 19 belongings of the -- or the property the protesters had 20 placed in that Park -- 21 MS. SUSAN VELLA: You mean while the 22 occupiers were still there? 23 MR. VILKO ZBOGAR: Pursuant to this 24 Order, under any circumstance. Well, say while the 25 occupiers were still there. Let's -- let's take that as
1071 a scenario. 2 You would certainly, I think, have asked 3 for the OPP's assistance or -- or asked them to at least 4 accompany you in doing that? 5 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 6 Myrka...? 7 MR. WALTER MYRKA: That never happened. 8 How does that assist us? You're speculating on what may 9 have happened. 10 COMMISSIONER SIDNEY LINDEN: It doesn't 11 help me. I don't know who it helps, it certainly doesn't 12 help me. 13 MR. WALTER MYRKA: Yeah. In my 14 submission, the question is improper. 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. WALTER MYRKA: It's just speculation. 17 COMMISSIONER SIDNEY LINDEN: Okay. 18 19 (BRIEF PAUSE) 20 21 MR. VILKO ZBOGAR: I think it does help 22 us inform us of the circumstances. 23 COMMISSIONER SIDNEY LINDEN: Well -- 24 MR. VILKO ZBOGAR: I -- I don't think 25 it's of terribly tremendous importance, so I'll just move
1081 on. 2 COMMISSIONER SIDNEY LINDEN: If there had 3 been an Order and if he'd have been asked to help to 4 execute it, you know, you might have asked -- you might 5 ask the question in a way that's proper, but at the 6 moment it isn't. 7 MR. VILKO ZBOGAR: Right, okay. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. VILKO ZBOGAR: 12 Q: I understand during the course of the 13 occupation, you had some contact with local politicians; 14 is that correct? 15 A: That's fair to say, yes. 16 Q: Those would have been municipal 17 politicians and provincial and Federal, or -- or just 18 some of them? 19 A: I would say all three (3), perhaps, 20 during the occupation, yes. 21 Q: Can you maybe identify the people you 22 had contact with? 23 A: I believe I spoke with Rosemary Ur 24 over the phone. I spoke with Marcel Beaubien at the 25 command post probably around the 6th, 5th or 6th.
1091 Local councillors and township 2 administrator, I believe I spoke with -- I believe they - 3 - he called me -- they called me as well at some point in 4 time during the occupation. 5 Q: Was that Ken Williams? 6 A: That would be Ken Williams at the 7 time, yes. 8 Q: Do you recall your conversation with 9 Rosemary Ur? 10 A: No, she was only concerned about the 11 -- it was just in general terms, there were no specifics 12 that I passed on to them or talked about. It was just in 13 general terms. They were more concerned about their 14 constituents and the issue and I certainly wasn't the 15 spokesperson on behalf of the Government in respect of 16 this. 17 Q: You were giving them information from 18 your -- as you understood it? 19 A: I didn't give her any specifics, 20 really. I'm sure I referred her on to the media centre 21 for the news releases and then through the Government 22 chains. I wasn't involved, you know, it was more 23 operational that I was involved in. 24 So, and I didn't pass too many details on. 25 I just said the issue was ongoing.
1101 Q: Did Rosemary Ur pass on to you her 2 impression or understanding or point of view on the 3 occupation? 4 A: I don't recollect. 5 Q: Now, Mr. Beaubien, you spoke with him 6 as well? 7 A: I did so. 8 Q: On one (1) occasion or more than 9 once? 10 A: Throughout the whole occupation? 11 Q: Yes. 12 A: Or -- 13 Q: September 4th to September 6th? 14 A: I believe it was just the once. 15 Q: Just the once. And was he vocal in 16 terms of expressing his concerns about the situation to 17 you? 18 MR. DOUG SULMAN: Asked and he answered. 19 COMMISSIONER SIDNEY LINDEN: It's been 20 asked and answered. 21 MR. DOUG SULMAN: Exact words. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 24 CONTINUED BY MR. VILKO ZBOGAR: 25 Q: Well, I think I want to be a little
1111 bit more precise. Now, did -- and ask you some specific 2 things and -- and see if you recall. 3 Did Mr. Beaubien tell you that he wanted 4 the situation to be resolved quickly? 5 A: I don't recollect. 6 Q: Anything along those lines? 7 MR. DOUG SULMAN: Commissioner, that was 8 from my -- 9 COMMISSIONER SIDNEY LINDEN: He's 10 exploring a little more but -- 11 MR. DOUG SULMAN: He is, but that was 12 asked and answered. The question was, did he advocate 13 any position? That was the same question. 14 It's been asked and answered. Not just by 15 my cross-examination, it's been asked in direct. 16 COMMISSIONER SIDNEY LINDEN: Yes, I'm not 17 hearing anything that I haven't already heard. 18 MR. VILKO ZBOGAR: Right. 19 COMMISSIONER SIDNEY LINDEN: So, I'm not 20 sure where you're going. 21 MR. VILKO ZBOGAR: I wanted to be a bit 22 more specific but if you think all the information's on 23 the record, that's fine. I'll try to ask something new. 24 25 (BRIEF PAUSE)
1121 2 CONTINUED BY MR. VILKO ZBOGAR: 3 Q: Now, a question along these lines has 4 been asked, but I don't think it has been asked in this 5 particular way. 6 I want to -- I'm wondering if you remember 7 being told that Mr. Beaubien wanted the occupiers out of 8 the Park or something along those lines? 9 A: I don't recall. 10 Q: Okay. Do you recall Mr. Beaubien's 11 attitudes or approach or tone of voice when he was 12 speaking with you? 13 A: I believe he was very concerned. He 14 expressed concerns about the constituents in the area and 15 the -- and -- but he wasn't -- when he was speaking with 16 myself, he wasn't -- he was just speaking normally. 17 Q: Okay. 18 A: Yes. 19 Q: And with Ken Williams, do you 20 remember any of the conversations that you had with him? 21 A: I don't recall the conversations that 22 I had with Ken, to be honest with you. 23 Q: Do you know whether he advocated a 24 position or preference in terms of wanting those 25 occupiers removed?
1131 A: I don't recall. 2 Q: Okay. Those are all my questions. 3 Thank you Mr. Kobayashi. 4 COMMISSIONER SIDNEY LINDEN: Thank you, 5 Mr. Zbogar. Thank you very much Mr. Zbogar. 6 I think that Ms. Esmonde is next. 7 Again, Ms. Esmonde, I would... 8 9 (BRIEF PAUSE) 10 11 COMMISSIONER SIDNEY LINDEN: I am just 12 going to ask you if your time estimate is adjusted in any 13 way, shape or form as a result of what has happened so 14 far? 15 MS. JACKIE ESMONDE: I think I will be 16 able to shorten it somewhat. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 MS. JACKIE ESMONDE: I think I may go to 19 the lunch break, however. 20 COMMISSIONER SIDNEY LINDEN: That's fine, 21 that's fine. I just want to know what your thoughts are 22 as you begin. 23 MS. JACKIE ESMONDE: Okay. 24 25 CROSS-EXAMINATION BY MS. JACKIE ESMONDE:
1141 Q: Good morning, Mr. Kobayashi. 2 A: Good morning. 3 Q: My name is Jackie Esmonde, I will be 4 asking you some questions on behalf of the Aazhoodena and 5 George family group. 6 A: Hmm hmm. 7 Q: And I believe -- I will probably only 8 being referring you to the Volume II, so if you can have 9 that in front of you. 10 And I also provided you with some 11 documents yesterday; do you still have those? 12 A: Perhaps, yes, here someplace. 13 Q: I'd like to begin by referring you to 14 one of the documents I gave have you yesterday. It's 15 been marked as P-777, Inquiry Document 38000626. 16 A: Yes, I have it here. 17 Q: You have that? Okay. 18 A: Yes, I do. 19 Q: I have a copy for the Commissioner as 20 well. 21 COMMISSIONER SIDNEY LINDEN: Please. 22 Thank you. 23 24 CONTINUED BY MS. JACKIE ESMONDE: 25 Q: Now, this is an e-mail from Peter
1151 Sturdy to Barry Jones, it's dated August 1st, 1995. 2 A: Yes. 3 Q: And I don't see you copied on this 4 e-mail. 5 A: I don't believe I was. 6 Q: Okay. 7 A: Yes. 8 Q: I do want to ask you if you were 9 familiar with some of the information contained in the e- 10 mail. 11 A: Certainly. 12 Q: It refers to a conversation with 13 Inspector Carson that had apparently taken place on that 14 date, and refers to some examples Inspector Carson had 15 provided Mr. Sturdy with respect to how he would be 16 proceeding, if an occupation occurred. 17 A: Hmm hmm. 18 Q: You've had a chance to review this 19 document? 20 A: Yes, I have. 21 Q: Okay. And it appears to make a 22 distinction between what -- what action the OPP would 23 prefer, depending on the size of the occupation, the -- 24 the number of people participating in the occupation. 25 A: That's correct.
1161 Q: And was this information that you 2 were aware of at the time? 3 A: At August 1st, or September or...? 4 Q: Well, up until September -- were you 5 aware, in August or September of 1995, before the 6 occupation occurred, either from Mr. Sturdy, perhaps from 7 Inspector Carson himself, that there was this distinction 8 being made -- 9 A: I -- I don't recollect that I was. 10 But being part of the Contingency Critical Incident Team, 11 I imagine this was a part of the documents that I would 12 have seen at some point in time. 13 Q: I see. 14 A: Yeah. 15 Q: Okay. Well, in particular, with 16 respect to the seeking of an injunction, the e-mail 17 appears to suggest that it was Inspector Carson's view 18 that if there was a large group that entered the Park and 19 made a claim, he would require a Court Injunction, 20 whereas if there was a smaller group, he doesn't -- if 21 there's -- that would not be required? 22 And, in particular, were you aware of that 23 as a -- as a position put forward by Inspector Carson or 24 the OPP generally? 25 A: I believe this was in discussion with
1171 Peter Sturdy and Inspector Carson, so if I saw the -- the 2 memo I -- I can't -- I don't recollect if I did see the 3 memo, but I'm sure it would have been part of the 4 Critical Incident Team planning. 5 Q: Okay. Well I'm asking you now about 6 your recollection, if you -- 7 A: I don't recollect. 8 Q: Okay. 9 A: I actually don't recollect this at 10 all. 11 Q: You were asked some questions 12 yesterday regarding cement blocks. Counsel for Mr. 13 Harris had asked you some questions about that. 14 A: Yes. Yes. 15 Q: Now it's my understanding that there 16 were some concrete blocks that had been placed in the 17 Park in order to prevent Aboriginal people from driving 18 their cars into the Park from -- from the Army Base. 19 Was that your understanding of -- 20 A: Yes, it was. 21 Q: Okay. And that these concrete blocks 22 had been placed at some of the -- at the entrances to the 23 Park? 24 A: I believe so, yes. 25 Q: Now you've described to us four (4)
1181 separate occasions on which you attended the Park after 2 the occupation had commenced, with respect to serving the 3 notice. 4 A: I believe there was three (3) at the 5 Park and one (1) at the base. 6 Q: Okay. 7 A: Yes. 8 Q: Thank you for that distinction. And 9 to be clear, each time your purpose in attending at the 10 Park and the one time at the base was to serve the 11 notice -- 12 13 A: Of trespass, yes. 14 Q: -- of trespass, either by giving 15 somebody a piece of paper that said that, correct? 16 A: Correct. 17 Q: Or by advising them verbally? 18 A: Correct. 19 Q: And on each occasion you were in 20 attendance with a representative from the OPP? 21 A: Correct. 22 Q: And you were in attendance at the 23 request of the OPP? 24 A: Correct. 25 Q: And you've described two (2) separate
1191 interactions with Mr. Bert Manning? 2 A: Yes. 3 Q: And I won't review the evidence that 4 we've already heard in that regard. But I'm interested 5 in the second occasion which was at the army camp. 6 A: Yes. 7 Q: And yesterday Ms. Tuck-Jackson had 8 asked you some questions with respect to that and I 9 believe she was successful in refreshing your memory 10 about some of -- some of the conversation that took place 11 between Detective Sergeant Wright and Mr. Manning. 12 A: Correct. 13 Q: I'm interested in some other aspects 14 that were not brought -- 15 A: Okay. 16 Q: -- out yesterday. It might assist 17 you if you -- I've provided you with an excerpt from the 18 scribe notes which has been marked in this proceeding as 19 P-426, Inquiry Document 1002419. 20 A: Correct. 21 Q: It's the first page that I've 22 provided you, it's page 35. I have a copy for the 23 Commissioner as well. 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25
1201 (BRIEF PAUSE) 2 3 CONTINUED BY MS. JACKIE ESMONDE: 4 Q: Okay. And you see the entry at 5 13:54? 6 A: Yes. 7 Q: And this appears to be a 8 transcription or a note of Dr. -- sorry, Detective 9 Sergeant Wright's report on his conversation with Mr. 10 Manning. 11 A: Yes. 12 Q: I'm just trying to shorten this a 13 little bit. He talks about that Detective Sergeant 14 Wright made it very clear that they were trespassing and 15 you -- you agreed that that did occur? 16 A: Yes. 17 Q: Pardon me. Okay. Sorry, I think I'm 18 actually referring you to the wrong portion of the scribe 19 notes. 20 I'm interested in page 37, which I believe 21 is actually in your book in Commission counsel's 22 document. 23 COMMISSIONER SIDNEY LINDEN: What's the 24 tab number? 25 MS. JACKIE ESMONDE: I'm not as organized
1211 as I would like. 2 COMMISSIONER SIDNEY LINDEN: Okay. Do 3 you have the tab number, Ms. Vella. You're looking for 4 it. 5 MS. SUSAN VELLA: I'm looking for it. 6 I'm sorry. 7 8 (BRIEF PAUSE) 9 10 MR. ANDREA TUCK-JACKSON: 131. 11 MS. JACKIE ESMONDE: Thank you. My 12 apologies. 13 COMMISSIONER SIDNEY LINDEN: What number 14 was that? 15 MS. JACKIE ESMONDE: We're at Tab 131. 16 17 CONTINUED BY MS. JACKIE ESMONDE: 18 Q: Yes, I have the right reference now. 19 Page 37, at the top. And Inspector Wright -- sorry, 20 Detective Sergeant Wright reports, apparently, according 21 to the scribe notes, that Mr. -- I'm in the third 22 paragraph -- that Mr. Manning had told him that the 23 elders were not there. 24 Do you recall -- can you recall now; does 25 this refresh your memory that in the conversation with
1221 Mr. Manning at the Camp he had indicated that the elders 2 were not there, he was waiting for that to occur? 3 A: I do recall that, yes. 4 Q: Okay. Now, do you recall, as well, 5 that Mr. Manning advised Detective Sergeant Wright that 6 there was a burial ground in the Park or that they were 7 happy to have their burial ground back? 8 A: I don't recall that specifically, I 9 only heard certain -- certain portions -- 10 Q: Right. 11 A: -- of that conversation because I was 12 back away from the -- the actual two (2) individuals. 13 Q: Okay. And do you recall hearing Mr. 14 Manning say that the Park belonged to the Stoney 15 Pointers? 16 A: I don't recollect. 17 Q: Okay. And I anticipate that we will 18 hear evidence that Mr. Manning had asked the OPP to 19 return the next day at noon, in order to give time for 20 the elders to meet? 21 A: I don't recollect that - 22 Q: You don't? Okay. 23 A: -- to be honest with you, yes. 24 Q: Did you not have the understanding 25 that there was supposed to be a meeting the next day?
1231 A: I don't recollect that. 2 Q: And just -- I think I may -- I think 3 I may have been unclear on the record that this meeting 4 with Mr. Manning was on the 5th, correct? 5 A: Yes. 6 Q: Okay. And based on your experience 7 of these four (4) separate occasions that you attended in 8 the -- in the area to attempt to serve the notice, it was 9 Mr. Manning who was the most open to communication with 10 the OPP, amongst the -- the people in the Park? 11 A: Yes, that's right. 12 Q: And I take it, when you attended at 13 the Park and on the Camp on September 5th you were 14 wearing the bullet proof vest that you had talked to us 15 about? 16 A: On the 5th? Yes. 17 Q: On the 5th. Could you turn to Tab 18 147 of the book, of the Commission Counsel's documents? 19 A: Yes? 20 Q: This is a copy of an article from 21 the London Free Press. It is Document 1000662. It's 22 entitled, "Police Playing Waiting Game at Ipperwash." 23 And there's a -- I'm interested in the picture. 24 A: Yes? 25 Q: According to the caption this is a
1241 picture of you and Mark Wright? 2 A: Yes. 3 Q: Okay. And I'm not sure which 4 gentleman is you. 5 A: I'm on the left-hand side of the 6 page. 7 Q: Okay. And you're wearing the bullet 8 proof vest in that picture, correct? 9 A: That is correct. 10 Q: And this is a picture of you at the 11 Park fence? 12 A: Yes, it is. 13 Q: Okay. It's difficult -- it's not a 14 great picture, but there's another picture at Tab 148 15 which appears to be very similar, which is a bit clearer, 16 but it's apparent that on the back of the -- the vest is 17 -- it's emblazoned, "OPP." 18 A: It was an Ontario Provincial Police-- 19 Q: Right. 20 A: -- vest that I was wearing, yes. 21 Q: Right. It was clearly marked as an 22 OPP vest. 23 A: Yes, that's correct. 24 Q: Sorry, could that -- the document at 25 147 be marked as the next exhibit?
1251 THE REGISTRAR: P-912, Your Honour. 2 3 --- EXHIBIT NO. P-912: Document Number 1000662. 4 London Free Press article, 5 "Police Playing Waiting Game 6 at Ipperwash", Sept. 06/'95. 7 8 COMMISSIONER SIDNEY LINDEN: 912. And do 9 you want the one at 148, also? 10 MS. JACKIE ESMONDE: Yes. It's a clearer 11 picture. The -- the one at Tab 148 is Document 2001840. 12 COMMISSIONER SIDNEY LINDEN: And it will 13 be -- 14 MS. JACKIE ESMONDE: I believe it's from 15 the Sarnia Observer, September 6th, 1995 entitled, Three 16 (3) Natives at Park, and then the rest of the title is 17 cut off. 18 COMMISSIONER SIDNEY LINDEN: Yes -- 19 MS. JACKIE ESMONDE: Yes, could that -- 20 COMMISSIONER SIDNEY LINDEN: -- so that 21 would be...? 22 THE REGISTRAR: P-913, Your Honour. 23 MS. SUSAN VELLA: 193? 24 THE REGISTRAR: Or 913. 25 COMMISSIONER SIDNEY LINDEN: 913
1261 MS. SUSAN VELLA: 193.(sic) 2 THE REGISTRAR: That would take us back 3 in time. 4 5 --- EXHIBIT NO. P-913: Document Number 2001840. 6 Sarnia Observer article, 7 "Three (3) Natives at Park 8 Charged", Sept. 06/'95. 9 10 CONTINUED BY MS. JACKIE ESMONDE: 11 Q: Okay. And I think it's clear from 12 your evidence that when you were attending on these four 13 (4) occasions you were not going with the intention of 14 participating in any negotiations? 15 A: No, it was primarily to serve notice, 16 yes. 17 Q: And I'd like to go over some of the 18 roles that you played over the course of the 4th through 19 the 6th. 20 A: Yes. 21 Q: Now, primarily your role was to 22 liaise with the OPP. 23 A: Liaise with the OPP, yes. 24 Q: And in doing so you assisted in 25 locating equipment?
1271 A: Yes. 2 Q: And arranging meals? 3 A: Yes. 4 Q: And accommodations? 5 A: Yes. 6 Q: And establishing a media centre? 7 A: Yes. 8 Q: In obtaining surveillance equipment? 9 A: Obtaining surveillance equipment, no. 10 Q: No? Okay. And you told us about 11 attending the briefing meetings at the command post? 12 A: Yes. 13 Q: And you understood that your role in 14 attending those meetings was as a representative of the 15 landowner? 16 A: Well the Ministry of Natural 17 Resources, yes. 18 Q: Right. To provide logistical support 19 to the OPP? 20 A: Yes. 21 Q: But one of the key reasons was for 22 you to obtain information from the OPP that you could 23 pass onto Mr. Sturdy? 24 A: Correct. 25 Q: And that that information could then
1281 be passed up the line so that representatives of MNR were 2 aware of what was taking place -- 3 A: Correct. 4 Q: -- from the perspective of the OPP? 5 A: Yes. Not only the OPP and -- and our 6 part as well. 7 Q: And that that kind of exchange of 8 information was necessary so that the MNR and the OPP 9 could work together effectively? 10 A: I would say so, yes. 11 Q: And you've told us that the OPP were 12 well aware that you were passing that information up? 13 A: Yes. 14 Q: And you've also told us that you were 15 less happy with the way the information was coming back 16 the chain? 17 That could have been more effective in 18 your view? 19 A: Yes. I -- I believe so, yes. 20 Q: And is it one reason why you say 21 that, that the OPP was looking to you for some 22 information from MNR that you did not have? 23 A: I would say, no. 24 Q: No? 25 A: No. I -- I would say it was just
1291 information to know what was happening. 2 Q: Okay. You don't recall you were 3 being asked about what was going on with the injunction 4 process and not being able to provide that information? 5 A: I do recall that, yes. 6 Q: So that -- that's one example of the 7 OPP looking to you for information while you were -- 8 A: Yes. But at that particular point in 9 time the injunction was an ongoing thing. And at that 10 particular point in time I believe it was Peter Sturdy 11 that was going to take out the affidavit -- 12 Q: Hmm hmm. 13 A: -- and not myself. Yes, they were 14 wondering, but whether information, that information 15 would have flowed down to me while they're -- while they 16 were doing it, didn't concern me. It was just -- would 17 be the status of it, you know, what was happening with 18 it. 19 Q: And you were not given instructions 20 on September 5th or September 6th to change the role that 21 you were playing? 22 A: No. 23 Q: And Mr. Sturdy did not get in touch 24 with you on the 5th or the 6th and instruct you to renew 25 your efforts to communicate with the people in the Park?
1301 A: No. 2 Q: And Mr. Sturdy did not get in touch 3 with you and ask you to communicate with the people in 4 the Park about the provisions of the Cemeteries Act? 5 A: No. 6 Q: Now we've heard some testimony from a 7 Ms. Elizabeth Stevens, who I believe you knew as 8 Elizabeth Thunder? 9 A: Oh, yes, yes. 10 Q: She was the Band Administrator at the 11 time? 12 A: Correct. 13 Q: And you've talked to us about some 14 informal discussions that you had with her, periodically, 15 about the possible co-management of the Park? 16 A: And other things. 17 Q: And among other things? 18 A: Yes, yes. 19 Q: And I believe you also testified that 20 you understood that the perspective of the Band was that 21 they did eventually want to Park to be returned to them? 22 A: It was suggested at that time by Liz, 23 I think, informally. 24 Q: Informally? 25 A: Yes. No, that's right.
1311 Q: I'd like to read to you some of the 2 testimony that she provided to the Commission -- 3 A: Hmm hmm. 4 Q: -- on March 7th, 2005. 5 A: Hmm hmm. 6 Q: And I'm reading from page 68 of the 7 transcript. And she was being asked about some -- a 8 notation and some Band Council minutes from August 2nd of 9 1994 which -- and I'll -- I'll just read it to you: 10 "There's a note..." 11 "Q: There's a note there in the 12 course of discussions with the meeting 13 with MNR for the Ministry of Natural 14 Resources on the management plan, 15 quote, 'Liz to request a clause be 16 added that some time in the future we 17 may be reviewing the surrender of this 18 land.' [End quote]. 19 Q: Do you recall communicating that 20 request? [That would be to MNR]. 21 A: Yes. 22 Q: And what was the response at the 23 time? 24 A: Well, of course, we wanted to 25 review the surrender, because like any
1321 surrender there's always a little bit 2 of shadiness in the other party's part. 3 So you want to review any surrender you 4 made -- 5 A: Hmm hmm. 6 Q: -- but you know, like, and what 7 were the circumstances around the 8 surrender? 9 A: Quite -- quite similar to the West 10 Ipperwash beach claim and the surrender 11 of those eighty-one (81) acres which 12 are generally done not too far apart 13 from each other, of which we feel, and 14 to this day, that our community was 15 ripped off, so the best interests of 16 the people were not at hand at the time 17 by the Indian Agent of the time. So 18 that's basically, definitely we're 19 going to review that surrender and 20 ultimately with -- with the final goal 21 being added to the lands returned with 22 -- when Stoney Point is returned. 23 Q: Okay. And do you recall whether 24 the Ministry of Natural -- what the 25 response of the Ministry of Natural
1331 Resources was to that? 2 A: It's a first step. 3 Q: That -- that it's a first step? 4 A: It's a first step to establishing 5 some sort of working relationship with 6 the natives in the area or whatever, 7 but I don't think, in their minds, you 8 know, their -- the return of the 9 Ipperwash Park was totally out of -- 10 they said it wouldn't be up -- up them 11 [sic], it would basically be up to, you 12 know, the higher ups in the Government 13 echelons." 14 Okay. And she refers later on in the 15 transcription having had these discussions with you. 16 So having put that transcript to you, do 17 you recall now that she did raise with you the question 18 of the surrender? 19 A: I don't recollect that conversation 20 at all, to be honest with you. 21 Q: Okay. And you -- 22 A: Yes. 23 Q: -- don't recall her comparing the 24 circumstances of the surrender of the West Ipperwash 25 beach to the surrender of the Park?
1341 A: I do not. At that time, I believe 2 that -- during the management planning process I believe 3 that something similar to that was brought up, and Mr. 4 Osborn and myself and I think it was Wendy McNab was 5 speaking to Liz about the management plan, Ipperwash -- 6 the preliminary management plan. 7 But I don't believe that was brought up in 8 the day to day conversation of things that we were -- we 9 were working on at the time, because it was mostly 10 employment opportunities and that type of thing. 11 It wouldn't be anything of that detail. 12 Q: Okay. You said you recall something 13 similar being mentioned on another occasion, what -- I'm 14 not sure what -- 15 A: Just in general terms. I -- I think, 16 perhaps, if you go the Band -- the meeting that we had 17 with them, the minutes or there was a memo from Mr. 18 Osborn speaking about ownership at that time and -- and I 19 don't believe it was in that detail, either. 20 But that would be the only -- one of the 21 only times I would speak to Liz about ownership or 22 surrender, was the Ipperwash beach, I don't think -- I 23 wasn't involved in that part of it, so. 24 Q: Okay. But when you say something 25 similar being brought up --
1351 A: It was talking about ownership and 2 surrender, I think. 3 Q: Okay. 4 A: Yes, I believe so. It was that -- 5 that was in -- about the management planning process. 6 That was in respect to our comments about the management 7 planning process, they're comments about the management 8 plan. 9 Q: And what time frame are we talking 10 about then? 1989? 11 A: I think that was back in probably, 12 '92, '93 in there someplace -- 13 Q: Okay. 14 A: -- I believe. I would have to go 15 back to my notes or use some of the memos to -- to see. 16 I definitely didn't -- don't recall having 17 that conversation with her. 18 19 (BRIEF PAUSE) 20 21 Q: Now, when you were going over the 22 various drafts of the Affidavit that was ultimately filed 23 with the Court with respect to the injunction -- 24 A: Yes. 25 Q: You had some conversations, you
1361 recall, with Tim McCabe and Elizabeth Christie? 2 A: I believe so, yes. 3 Q: Okay. And -- 4 A: Hmm hmm. 5 Q: -- were you -- were you aware that, 6 in seeking the type of injunction that was being sought, 7 that is without notice -- 8 A: Hmm hmm. 9 Q: -- there was an obligation on the 10 government to put forward as fully as they could the 11 position of the other party, that would be the people in 12 the Park? 13 A: I wasn't aware of that, no. 14 Q: You weren't aware of that? 15 A: No. I had -- really didn't -- at 16 that point in time, I really didn't know what an 17 injunction really, you know, the details of an 18 injunction. 19 Q: Okay. And were you -- was there any 20 draft of the Affidavit in which there was information 21 that -- sorry, that referred to the claims to the burial 22 ground -- there being a burial ground in the Park in 23 1993? 24 A: I don't recall. 25 Q: Do you recall ever discussing that
1371 issue with Ms. Christie or Tim McCabe? 2 A: I do not recall. 3 Q: Were you ever asked about what 4 information you had about a claim to the Park or burial 5 grounds in the Park with respect to preparing an 6 affidavit? 7 A: I don't recall. 8 Q: Do you recall if you volunteered this 9 information? 10 A: I don't recall that either. 11 Q: I'd like to ask you some questions 12 about the items that were found in the meeting centre at 13 the Pinery Park. 14 A: Sure. 15 Q: Now, I had an opportunity to speak 16 with Mr. Stan Cloud yesterday actually -- 17 A: Yes. 18 Q: -- and he provide me with some -- 19 some further information -- 20 A: Hmm hmm. 21 Q: -- that may assist us. I'll see if 22 your memory matches his. 23 First of all we know there were T-shirts 24 and mugs that were found in the meeting centre? 25 A: Yes.
1381 Q: And two (2) cartoons? 2 A: I recall there was one (1) -- or just 3 cartoons, whether it be two (2) or one (1) I don't 4 recall. 5 Q: Okay. Now, he described to me the 6 content of two (2) cartoons? 7 A: I -- I cannot -- I did not do the 8 actual investigation myself. 9 Q: Okay. I -- I'd like to tell you what 10 he told me and -- 11 A: Okay. Sure. 12 Q: -- you can -- perhaps it will assist 13 to refresh your memory and perhaps it won't. 14 A: Great. 15 Q: Okay. He described one (1) cartoon - 16 - both cartoons were taken from newspaper articles 17 according to Mr. Cloud, does that assist you? They were 18 -- sorry, they were from newspapers rather than having 19 been drawn by... 20 A: Actually I -- I don't recall seeing 21 the cartoons personally because I didn't investigate the 22 incident personally myself. It wasn't on the ground in 23 the command -- or like in the meeting centre. I just 24 don't recall to be honest with you. 25 Q: But certainly would you not -- would
1391 it not be the case that you likely would have learned of 2 the content of the cartoons? 3 A: Well -- 4 Q: Or having them described to you if 5 you did not see them yourself? 6 A: I just -- I -- I believe my 7 recollection is that they were dis -- distasteful. I 8 don't recall seeing them myself. I may have but I don't 9 recall. 10 Q: Okay. Mr. Cloud told me -- described 11 one (1) cartoon as being a picture of a woman being 12 interviewed by a police officer describing a culprit -- 13 A: Hmm hmm. 14 Q: -- saying he had a bandana, an AK-47 15 rifle, he was Aboriginal -- 16 A: Hmm hmm. 17 Q: -- and then the punch line is a 18 response by the police officer: 19 "You say he's aboriginal? Sorry we 20 can't do anything about it." 21 A: Hmm hmm. 22 Q: And does that refresh your memory 23 with respect to the -- 24 A: It does not. 25 Q: It does not?
1401 A: No, it does not. 2 Q: Do you recall seeing a cartoon like 3 that in the days following September 6th? 4 A: I do not to be honest with you, yes. 5 Q: He described to me a second cartoon 6 which he said was -- depicted a First Nation person 7 holding a rock surrounded by people with weapons and the 8 punch line was: 9 "Justifiable use of force." 10 That doesn't sound familiar? 11 A: No. 12 Q: Do you -- do you recall seeing a 13 cartoon of that nature. 14 A: I do not, yes. 15 Q: And you were asked about the nature 16 of the can that was found? 17 A: Yes. 18 Q: And you -- you testified that you 19 couldn't recall very much about it? 20 A: No, I can't actually, no. 21 Q: We've seen in some documents and I've 22 heard from Mr. Cloud that it was a beer can -- 23 A: Hmm hmm. 24 Q: -- with a hole in it and a feather 25 and with police caution tape around it.
1411 Does that sound familiar? Does that 2 refresh your memory? 3 A: No. 4 Q: No? Now, the meeting centre was 5 being used by both the ERT and the TRU teams as a 6 dormitory? 7 A: I believe so. 8 Q: And the facility was being used both 9 for sleeping and for meals? 10 A: Correct. 11 Q: And after September 6th it was also 12 being used by MNR staff and their families? 13 A: Correct. 14 Q: Can you tell me how many MNR staff 15 and their families were there? 16 A: I -- I think you have to put things 17 in context in respect to myself. I was not onsite at 18 that particular time at all. I had an assistant 19 superintendent that was in charge of the meeting centre 20 that really he directed and he was -- after the 6th he 21 was living there as well. 22 Q: Hmm hmm. 23 A: So, the -- the fine details of who 24 was there I wasn't really directly involved with. 25 Q: Fair enough. But you were aware that
1421 -- were you aware that the two (2) cartoons, for example, 2 were -- or -- well you were only aware of one (1), but 3 the cartoon was found on a bulletin board in an eating 4 area in the meeting centre? 5 A: Eventually I was informed of that, 6 yes. 7 Q: It was in plain view to all? 8 A: The bulletin board is in plain view 9 to all, yes. 10 Q: Now, I understand that Mr. Cloud's 11 father was also working for the MNR at the Pinery at this 12 time? 13 A: Most certainly, yes. 14 15 (BRIEF PAUSE) 16 17 Q: And Mr. Cloud also confirmed with me 18 that he had met with you to make the complaint? 19 A: Mr. Cloud or Stan Cloud? 20 Q: Sorry, Mr. Stan Cloud. 21 A: Stan Cloud, yes he did. 22 Q: Okay. Do you recall him describing 23 to you that he was eating in the lunch room when he saw 24 these items and he stood up and asked if there was anyone 25 there who would claim responsibility for them?
1431 A: I don't recall that. 2 3 (BRIEF PAUSE) 4 5 Q: And I understand that you allowed him 6 to go home for the remainder of the day and until the 7 complaint could be fully addressed. Is that -- 8 A: That is correct. 9 Q: And that's as per MNR policy in these 10 types of... 11 A: I'm not sure if it's MNR policy, but 12 it just seemed to be the right thing to do at the time. 13 Q: Yeah. And you would agree with me 14 that these items were in plain view and would have been 15 seen by MNR staff working in the facility? 16 A: Correct. 17 Q: And would have been seen by the MNR 18 staff and their families who were using the facility? 19 A: Correct. 20 Q: And would have been observed by Mr. 21 Matheson himself? 22 A: Correct. 23 Q: And did anyone, apart from Mr. Stan 24 Cloud, raise this issue with you? 25 A: Not to my knowledge.
1441 Q: And in particular, Mr. Matheson 2 didn't come to you and tell you there was a problem of 3 these items being in the meeting centre? 4 A: I don't believe so. 5 Q: And when you spoke with him after the 6 complaint was made to you, did he tell you whether he'd 7 actually seen the items in question? 8 A: He said they were there. 9 Q: He had seen them? 10 A: Yes. 11 12 (BRIEF PAUSE) 13 14 Q: And as far as you know, prior to you 15 raising the complaint with him, he didn't take any steps 16 to remove those items? 17 A: Not to my knowledge. 18 19 (BRIEF PAUSE) 20 21 Q: Now, we understand from Mr. Sturdy 22 that when issues such as discriminatory conduct or a 23 poisoned work environment arise amongst the Park staff, 24 it's the manager who's responsible for dealing with it? 25 A: Correct.
1451 Q: And he identified you as the manager 2 who would have been responsible. 3 A: Actually, overall responsibility was 4 mine and I'm willing to accept that aspect of it, yes. 5 Q: Hmm hmm. 6 7 (BRIEF PAUSE) 8 9 Q: Now, is it fair to say that you 10 concluded at the end of the investigation that the 11 cartoon posting was not intended to be discriminatory? 12 13 (BRIEF PAUSE) 14 15 A: At the end of the -- no, that's not 16 true. I felt the overall activities there at that time 17 were discriminatory. 18 Q: Okay. 19 A: Regardless of whether the cartoon, 20 the can or any aspect of that situation. It wasn't just 21 the car -- you know, the cartoon. 22 Q: Well, from what I understand, the 23 cartoon was specifically linked to an MNR staff person? 24 A: Yes. 25 Q: Okay. And you would agree with me
1461 that even if it was just intended as a joke, that's not 2 an excuse? 3 A: It is not, you know, part of our work 4 environment that I would condone. 5 Q: Right. Such behaviour would be 6 unacceptable? 7 A: Very much so. 8 Q: Can I ask you then to turn to a 9 document I provided to you yesterday, and which I believe 10 was also referred to during your direct examination; it's 11 P-801. It's Inquiry Document 1010135. 12 Do you have that in front of you, sir? 13 A: What is the title to that? 14 Q: It's an e-mail from you to Peter 15 Sturdy dated the 4th of January, 1996. 16 17 (BRIEF PAUSE) 18 19 A: Yes. 20 COMMISSIONER SIDNEY LINDEN: I believe 21 that document is in the binder, isn't it? 22 MS. JACKIE ESMONDE: It's not in the 23 binder. 24 COMMISSIONER SIDNEY LINDEN: Do you have 25 a copy?
1471 MS. JACKIE ESMONDE: Oh, pardon me, yes I 2 do. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 5 CONTINUED BY MS. JACKIE ESMONDE: 6 Q: If I could refer you to the second 7 paragraph: 8 "The incidents which occurred at the 9 meeting centre, pop can with feathers, 10 cartoons posted, mugs and T-shirts and 11 bull's eye on OPP cruiser with arrow, 12 have been investigated. OPP involved 13 in all incidents with the exception of 14 the cartoons. 15 A meeting-centre staff posted, with no 16 discriminatory intent was meant to be a 17 joke for the OPP." 18 Do you see that? 19 A: Yes, oh yes. 20 Q: And you wrote those words? 21 A: I did so. 22 Q: And you -- you would agree with me 23 that, concluding that it was joke, not intended to be 24 discriminatory, shouldn't be the end of the matter. 25 A: Definitely.
1481 Q: But as far as you're aware, there was 2 no disciplinary action that was taken against the 3 meeting-centre staff person that posted the cartoons? 4 A: That is correct. Can I tell you why? 5 Q: Please do. 6 A: Can I elaborate a wee bit? 7 Q: Of course. 8 A: Under normal circumstances, there 9 would certainly much -- be a much more severe penalty 10 associated with this particular matter. 11 In this particular case, because I -- I 12 think you have to understand the -- this wasn't a normal 13 situation for any of our staff members. At that time 14 they were concerned about their workplace, all of their 15 workplace, the Park, the tensions that were building in 16 the meeting centre, working in a very small confined 17 area, the workload, the threat of an occupation of 18 Pinery. 19 And we had several work locations, it 20 wasn't only the meeting centre, there was -- there was a 21 business centre, there was a store, and there was so 22 forth -- offices and so forth. 23 I believe that, under normal 24 circumstances, this would have been dealt with much 25 differently, perhaps, but I believe it was Don's
1491 decision, as the Manager of that facility, to make a 2 decision not to inflame the -- the situation or -- or the 3 stress or the -- I guess, the tension in the -- by 4 creating additional emotional situations. 5 And his decision was to not perform any 6 further discipline in the matter. But the main situation 7 had been resolved; everyone knew, from our perspective, 8 in regards to our participation, that we had done an 9 investigation. 10 Everyone knew also that the Ontario 11 Provincial Police were performing an investigation which 12 was serious and that other management staff in the Park, 13 as well, were looking their own work centres over to 14 ensure there was no discrimination, at all. 15 And I would say that everybody knew that 16 it was a very severe situation and wasn't condoned. And 17 so the actions that we took were basically -- or Don 18 took, and myself supported, was that we wouldn't take any 19 further disciplinary action with a temporary employee. 20 Q: Okay. Well you've already -- you've 21 already agreed that you would ultimately have been 22 responsible as the Manager -- 23 A: Exactly, yes. 24 Q: -- and would you not agree with me 25 that it's -- in very stressful and serious situations --
1501 A: Hmm hmm. 2 Q: -- such as you were faced with at the 3 Pinery, that it's most important to ensure that there's 4 no racism in the workplace? 5 A: Oh, most certainly, and for the most 6 there wasn't. This was an isolated incident for our 7 staff, and you can rest assured at that. I'm sure if you 8 spoke with Mr. Cloud, he would have told you that. 9 Anything that was brought to us in the 10 past was dealt with immediately, and in this case, from 11 our side, from the Ministry's side, it was dealt with 12 immediately. 13 From the OPP side they did their own 14 investigation, and I think it was dealt with immediately, 15 as immediately as we could under the circumstances, and 16 appropriately could, because I think tensions would have 17 been, and it was a judgment call, I think tensions would 18 have been a lot higher if we had of disciplined the staff 19 Member by -- by releasing them. 20 Q: Now you said that everybody would 21 have known that such behaviour was not condoned? 22 A: Yes. 23 Q: And how would they know that if you 24 didn't take disciplinary action against the person who 25 did it?
1511 A: Well in actual fact, we do have 2 orientation for staff in harassment, prejudicial 3 behaviour, all the staff had orientation at the beginning 4 of the year where this is brought forward. 5 There's all kinds of posters on bulletin 6 boards and so forth that identify workplace harassment 7 and discrimination. I think that just the seriousness of 8 having an investigation; we are not police officers, 9 we're -- we're just ordinary people, the staff are just 10 ordinary people and if you're being investigated, there 11 is a connotation there that it is severe. 12 And I suspect that our -- our staff knew 13 that. I'm not condoning the overall situation, don't get 14 me wrong. I'm just saying that we -- we did a judgment - 15 - it was a judgment call at the time not to inflame 16 situation because of everyone working in the workplace. 17 Q: I see. Now I'd like to ask you some 18 questions then about Mr. Beaubien. 19 A: Sure. 20 Q: Now you have been asked, generally, 21 some questions about what you can recall about the 22 meeting with him that I think has been established 23 occurred on September 6th, 1995. 24 A: Hmm hmm. 25 Q: You weren't presented with the scribe
1521 notes that describe that meeting? 2 A: Yes. 3 Q: And I have some particular questions 4 that arise based on what is in the scribe notes. 5 A: Yes. 6 Q: And that is in the materials I've 7 provided to you yesterday. I'm sure I'm referring to the 8 right document this time. It's P-426, 1002419. You had 9 it out in front of you earlier. 10 A: Oh yes. 11 Q: Right. If you could turn to the 12 second page that I've provided you with, and it's page 69 13 of the scribe notes. It's the stapled -- the few pages 14 that are stapled together. I think that's what you have 15 right there. 16 A: Oh here it is, yes, sorry. 17 Q: I'm looking at the second page. 18 There's a '69' at the top. 19 A: Yes. 20 Q: And there's a notation at 18:42? 21 A: Yes. 22 Q: Inspector Linton and Inspector 23 Carson, Les Kobayashi and Member of Parliament, Marcel 24 Beaubien meeting in command trailer. 25 A: Yes.
1531 Q: Okay. Now the next notation is: 2 "Marcel Beaubien advised that he had 3 sent a fax to the Premier advising of 4 his intentions and that he wanted a 5 return phone call regarding his 6 intentions." 7 Now does that refresh your memory that Mr. 8 Beaubien had referred to communicating with the Premier 9 by fax? 10 A: To be honest with you I was sort of 11 not a participant in the converse. I was asked to -- to 12 be in the command post at the time but it was a very 13 small restricted area so I was back from the most -- the 14 people that were talking. I didn't get all the 15 conversation, or I wasn't included in all the 16 conversation, it would just be -- yeah. That's -- that's 17 my recollection 18 Q: I take it you don't disagree that 19 this was discussed in the meeting according to the scribe 20 notes? 21 A: If the scribe notes say that, I 22 believe they occurred. 23 Q: Now you've also told us that you can 24 recall Mr. Beaubien expressing concerns from his 25 constituents and there's --
1541 A: Yes. 2 Q: -- a particular reference in the 3 scribe notes. It's at the next page which is page 70 at 4 the top, in the second paragraph. 5 A: Yes. 6 Q: "Marcel Beaubien advised that 7 property owners are very concerned. 8 They are frustrated and feel that they 9 are not being treated equally." 10 A: Yes. 11 Q: And is that -- that -- generally that 12 is consistent with your memory -- 13 A: Yes. 14 Q: -- of the concerns that were being 15 expressed by Mr. Beaubien at the time? 16 A: Yes, yes. 17 Q: And when he, as you recall now, when 18 he spoke about the frustration by property owners that 19 they were not being treated equally, do you recall now 20 that you understood from that comment that he was 21 expressing frustration that -- on the part of the 22 property owners that if they had taken over the Park the 23 OPP would have evicted them immediately? 24 A: I don't recollect this. 25 Q: You didn't form that impression?
1551 A: No. No. I -- I don't recollect if I 2 did. I may have formed it, but I don't recollect. 3 4 (BRIEF PAUSE) 5 6 Q: Now further down that page, the third 7 paragraph from the bottom, Marcel Beaubien states that: 8 "He doesn't mind taking controversy if 9 situation can't be handled by police 10 services, something has to be done to 11 handle the situation." 12 A: Yes. 13 Q: Now, do you recall now that Mr. 14 Beaubien, during this meeting, was expressing a concern 15 that something should be done? 16 17 (BRIEF PAUSE) 18 19 A: I don't recall this particular 20 paragraph but I do recall that, yes, he -- 21 Q: In general terms. 22 A: -- suggested that -- 23 Q: He expressed that something should be 24 done and that something should be done by the OPP? 25 A: Yes.
1561 2 (BRIEF PAUSE) 3 4 Q: And that in his view, the OPP was not 5 acting decisely (sic) enough. 6 A: I didn't have that impression, no. 7 Q: Now, I know you've said you don't 8 recall these particular words being said, but do you not 9 recall Mr. Beaubien making a suggestion that, perhaps, 10 the police couldn't handle the situation? 11 A: I don't recall that at all, no. 12 13 (BRIEF PAUSE) 14 15 Q: And did you not form the impression 16 throughout this meeting that Mr. Beaubien was trying to 17 pressure the OPP to act? 18 19 (BRIEF PAUSE) 20 21 A: My main impression of the meeting was 22 that he was expressing his concerns of -- and as I said 23 earlier, that he was expressing his concerns, he was 24 concerned about the constituents and -- 25 Q: Hmm hmm.
1571 A: But as far as actions, I don't recall 2 anything of that nature, no. 3 Q: Now, you don't recall him -- as I 4 understand him, you don't recall him describing any 5 particular action that should be taken. 6 A: Yes, right. 7 Q: But it was clear that he wanted the 8 OPP to take some action of some kind? 9 A: Once again, I don't recollect this -- 10 Q: Well, I believe you agreed with me 11 earlier that -- that you understood that he wanted the 12 OPP to do something? 13 A: Yes. 14 Q: Okay. 15 16 (BRIEF PAUSE) 17 18 Q: Now the last document I'd like to 19 turn you to is in Commission Counsel's binder at Tab 214, 20 it's the last document. 21 22 (BRIEF PAUSE) 23 24 A: Yes. 25
1581 (BRIEF PAUSE) 2 3 Q: This is marked as P-895, it's 4 document 1008178 and you have been asked some questions 5 with respect to this document already. I have a few 6 additional questions. 7 Now, first of all, it says, "RHO minutes," 8 and I -- I'm not sure that you explained what "RHO" stood 9 for. 10 A: I can't recollect. I don't recollect 11 myself, actually. 12 Q: Okay. Okay, now could you turn to 13 page 3? 14 15 (BRIEF PAUSE) 16 17 A: Yes. 18 Q: Under item number 4, crisis 19 management at the centre. 20 A: Yes. 21 Q: And it appears, as I think we've gone 22 over, that this was some kind of report from Peter Allen? 23 A: Yes. 24 Q: Now the second bullet, 25 "During Ipperwash MNR didn't know the
1591 new government's position in regard to 2 the native agenda." 3 A: Yes. 4 5 (BRIEF PAUSE) 6 7 Q: Now, did you become aware, in the 8 course of your work as the superintendent of the -- the 9 various parks that have been identified, that the Harris 10 government was taking a different position in regard to 11 the native agenda than had been the position of the prior 12 government? 13 A: In all fairness, that -- no, I don't 14 -- well, it depends on what -- what you define as 15 "position." At my level, there wouldn't be any -- I 16 wouldn't have any conversation of whether one government 17 supported one thing and the other government supported 18 another or didn't support something. 19 At my level, I'd be looking for funding 20 and things like that, and programs to -- regardless, to 21 assist the Park. 22 Q: Okay. We've heard evidence that 23 there was a policy under the NDP Government and I 24 unfortunately can't recall the exact name for the 25 policy --
1601 A: Hmm hmm. 2 Q: -- but it related to when charges 3 would be laid against First Nations persons who were 4 engaged in, for example, hunting in a provincial park and 5 that there would have to be authorization from a -- 6 somebody higher up in the organization before charges 7 would be laid. 8 Do you recall such a policy? 9 A: That -- that wasn't my -- my -- that 10 certainly wasn't my testimony. 11 Q: No, it wasn't your testimony. 12 A: No, that's right. My understanding 13 was that it was the conservation officers had certain 14 directions and procedures in policies, but in our case, 15 in Parks, we didn't enforce the Game and Fish Act. 16 Q: I see. Okay. 17 A: Yes. 18 Q: So that didn't affect you -- 19 A: No. 20 Q: -- in your employment? Now, there's 21 another reference on the second last page of the 22 document. Unfortunately they're -- I don't think they're 23 numbered, under the heading, Legal Issues Administrative 24 Processes? 25 A: Yes.
1611 Q: And there's a subheading, Concerns, 2 Issues? 3 A: Yes. 4 Q: And the fourth bullet point, 5 "Politics changed how MNR responded to crisis". 6 Do you see that? 7 A: Yes, yes. 8 Q: Now were you the one who made that 9 contribution to the meeting? 10 A: I don't believe so, no. 11 Q: You don't believe so? 12 A: I wasn't involved in the politics of 13 -- of, you know, my part was operational as I suggested 14 earlier. 15 Q: Okay. But this -- this statement 16 seems to suggest that there was a change in how MNR 17 responded to the crisis which may have affected the way 18 you were operating on the ground. 19 Can you assist us in providing any further 20 detail as to what that comment was making reference to? 21 A: I cannot, in respect to the politics 22 aspect, I don't know. 23 Q: Okay. Thank you very much, sir, 24 those are all of my questions. 25 A: Thank you.
1621 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: I think it's 7 a bit early, just a couple of minutes before 12:00. I 8 think we'll break for lunch now. 9 THE REGISTRAR: This Inquiry stands 10 adjourned until 1:10. 11 12 --- Upon recessing at 11:55 a.m. 13 --- Upon resuming at 1:15 p.m. 14 15 THE REGISTRAR: This Inquiry is now 16 resumed. Please be seated. 17 MS. SUSAN VELLA: Good afternoon. 18 COMMISSIONER SIDNEY LINDEN: Good 19 afternoon. 20 MS. SUSAN VELLA: There's a document that 21 wasn't made an exhibit, that Mr. Zbogar has asked be made 22 an exhibit. It was his Inquiry Document Number 1002055, 23 Tab 21 of his cross-examination brief of documents. It 24 was the Special Investigations Unit followup report. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
1631 MS. SUSAN VELLA: That would be the next 2 exhibit please. 3 THE REGISTRAR: P-914, Your Honour. 4 COMMISSIONER SIDNEY LINDEN: 914. 5 6 --- EXHIBIT NO. P-914: Document Number 1002055. SIU 7 Followup Report, SIU file 8 number 95-PFD-130, November 9 09/95. 10 11 COMMISSIONER SIDNEY LINDEN: Okay, Mr. 12 Scullion. Is your estimate still -- I'm sorry. 13 14 (BRIEF PAUSE) 15 16 COMMISSIONER SIDNEY LINDEN: Is your time 17 estimate still reasonably accurate? 18 MR. KEVIN SCULLION: It's reasonably 19 accurate, Mr. Commissioner. It hasn't gone down too much 20 but it hasn't expanded either. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. KEVIN SCULLION: All right. And I -- 23 I just spoke with Ms. Vella and we were speaking during 24 the break and later in my examination I'm going to be 25 asking Mr. Kobayashi if he could mark certain spots on
1641 the aerial photograph that we've been looking at behind 2 him. 3 And I wonder if we can make that the next 4 exhibit at this point in time so that we can refer to it 5 later on? 6 COMMISSIONER SIDNEY LINDEN: The map 7 behind him? 8 MR. KEVIN SCULLION: It's behind him. 9 It's -- I won't even go with the measurements. It's just 10 a large aerial photograph. 11 MS. SUSAN VELLA: It's an aerial 12 photograph of the Ipperwash Provincial Park and 13 surrounding area. And it was taken -- it was produced by 14 the Ministry of Natural Resources in 2003. 15 THE REGISTRAR: P-915, Your Honour. 16 COMMISSIONER SIDNEY LINDEN: 915. 17 18 --- EXHIBIT NO. P-915: Aerial photograph of 19 Ipperwash Prov. Park and 20 surrounding area, 2003 marked 21 by Witness Les Kobayashi Oct. 22 26/'05. 23 24 MR. KEVIN SCULLION: Yeah. And I think 25 it's been used more for simply the landscape and showing
1651 where the roads are as opposed to the -- anything in -- 2 current in 1995 as it's eight (8) years later. 3 4 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 5 Q: Mr. Kobayashi, good afternoon. 6 A: Good afternoon, sir. 7 Q: My name's Kevin Scullion and I'm one 8 of the counsel for the Residents of the Aazhoodena which 9 you may know better as Stoney Point Group. 10 A: Yes. 11 Q: And that includes Glen George and 12 Roderick George who you've spoken a little bit about. 13 A: Yes. 14 Q: Roderick you may know better as 15 Judas. 16 A: Yes. 17 Q: And I have a number of questions for 18 you this afternoon. But, I'm going to try to step back a 19 little bit recognizing that your position as 20 superintendent of the Park for 1993 through to 1995 you 21 were overseeing not only the operations of the Park but 22 the impact of what was happening behind or south of the 23 Park in the Camp. 24 And I'll get to that as we go along. But 25 if I could turn you -- I -- I gave My Friends notice
1661 that I was going to refer to one of the documents we had 2 with Mr. Sturdy and that was simply the review of the 3 1995 occupations. 4 We've marked two (2) exhibits. One in the 5 examination-in-chief for Mr. Sturdy as P-802. I wonder 6 if we could take a look at that, 802 and 824 as well I 7 marked later in the examination of Mr. Sturdy. 8 9 (BRIEF PAUSE) 10 11 Q: Just while you're holding those, I'll 12 explain. Part of what the Commissioner's being asked to 13 do is to take a look at what occurred back in September 14 of 1995 as well as the events leading up to it. 15 And what my clients are fairly concerned 16 about is the role that MNR played in this. And what 17 they're having difficulty determining is the role of the 18 upper levels of MNR and the roles of the people at the 19 Park. 20 A: Hmm hmm. 21 Q: And I'll -- I'll suggest to you that 22 it seemed to me and my clients that the official position 23 of MNR was that this was a case and a situation of civil 24 disobedience; this potential occupation of the Park. 25 Would you accept that as an accurate
1671 portrayal of the position of MNR? 2 A: I would. 3 Q: You would or you would not? 4 A: I would. 5 Q: You would. 6 A: Yes. 7 Q: And in fact I referred to these 8 documents because it appears from the review that took 9 place in February of 1996, that those exact terms are 10 used. And I -- I refer you to P-802. 11 COMMISSIONER SIDNEY LINDEN: Do you know 12 what tab P-802 is at, just to help me. 13 MR. KEVIN SCULLION: It's not at a tab. 14 It's a separate document. 15 COMMISSIONER SIDNEY LINDEN: Oh, it's not 16 in -- good. 17 18 CONTINUED BY MR. KEVIN SCULLION: 19 Q: And I just wanted to make a quick 20 reference. And it's only to support the concept that I 21 think I've confirmed with Mr. Kobayashi that it was 22 viewed from MNR's standpoint of civil obedience. 23 And I'm just looking at page 3, point 18 24 and 19. 25 MS. SUSAN VELLA: Give the document
1681 number. 2 MR. KEVIN SCULLION: The Inquiry Document 3 for Ms. Vella is 1012220. 4 5 CONTINUED BY MR. KEVIN SCULLION: 6 Q: Do you see that reference? 7 A: Yes. 8 Q: And it seemed to me that this 9 contingency plan that was being developed by MNR in 10 anticipation of this possible occupation at Ipperwash 11 Provincial Park dealt with this concept of civil 12 disobedience. 13 And I'd suggest to you that the 14 contingency plan simply required Park personnel and you 15 as Superintendent overseeing the Park personnel, to close 16 up the Park to the best of your ability and to evacuate 17 as many of the assets of the Park as possible, before 18 this potential occupation occurred? 19 A: Correct. 20 Q: Is that accurate? 21 A: That is accurate, yes. 22 Q: Okay. And when I suggested this to 23 Mr. Sturdy, he agreed with me that by the time September 24 4th rolled around, this contingency plan was well in 25 operation and that those two (2) objectives had pretty
1691 much been obtained. 2 The assets had been moved out for the most 3 part from the Park -- 4 A: For the most part. 5 Q: And it was on the verge of being 6 closed up. Would you agree with that? 7 A: Yes. 8 Q: Okay. At that point in time, it was 9 my impression from Mr. Sturdy's evidence that MNR was 10 then going to be or let me back up a little bit. 11 OPP was then going to be taking the lead 12 with respect to this occupation and MNR was going to 13 provide assistance. 14 Is that accurate? 15 A: That's accurate. 16 Q: All right. And your position -- your 17 role as the Supervisor of the park was to provide that 18 assistance to the OPP? 19 A: Correct. 20 Q: And I think the term that was used 21 was logistics? 22 A: Yes. 23 Q: And logistics, for me, would involve 24 putting up the OPP and their personnel at the Pinery and 25 assisting the OPP to any great extent that they needed in
1701 understanding Ipperwash Provincial Park and the Pinery; 2 is that fair? 3 A: That's correct. 4 Q: All right. And that was your role as 5 the MNR man on the ground? 6 A: Correct. 7 Q: That's what I thought. Now, I heard 8 your evidence -- 9 A: Yes. 10 Q: -- that you moved from being a 11 supervisor of this Park into a position where you didn't 12 go home to go to sleep -- 13 A: Yes. 14 Q: -- Monday night. You didn't go home 15 to go to sleep Tuesday night and you only got your first 16 bit of sleep Wednesday afternoon at a hotel. 17 MS. SUSAN VELLA: No, that wasn't his 18 evidence. 19 MR. KEVIN SCULLION: Is that -- 20 THE WITNESS: I don't believe I stated it 21 in my evidence, no, but that's -- that's somewhat 22 accurate. 23 24 CONTINUED BY MR. KEVIN SCULLION: 25 Q: It is somewhat accurate?
1711 A: Yes, it is. 2 Q: All right. Well, that's where I 3 wanted to go. I wanted to take a look at why, from a 4 position of assisting with logistics to a position with 5 the OPP and basically being there 24/7, for two and a 6 half (2 1/2) days. 7 From your evidence it seemed clear to me 8 that you understood the concepts of the claim to the 9 burial ground an the claim to the Park being made both by 10 the Kettle Point and Stony Point Band as well as the 11 Stoney Point group? 12 A: The concept? 13 Q: The concepts. 14 A: Yes. 15 Q: Those had been put to you -- 16 A: In 1993? 17 Q: In 1993. 18 A: Yes. 19 Q: You were aware that there were claims 20 being made -- 21 A: Yes. 22 Q: You dealt with Maynard T. -- 23 A: Well -- 24 Q: -- when he occupied -- 25 A: He --
1721 Q: -- the Park? 2 A: Yes, yes. 3 Q: All right. 4 5 (BRIEF PAUSE) 6 7 Q: And I suggest to you that Maynard T. 8 made it very clear that the occupation of a Park was 9 peaceful, was going to be peaceful; is that fair? 10 A: That is correct, yes. 11 Q: And that as part of this occupation 12 by Maynard T. he also submitted on behalf of the 13 residents of Aazhoodena, a co-management agreement that 14 he was asking you to take a look at; is that fair? 15 A: That would be correct, yes. 16 Q: Okay. And if I understood correctly 17 from your evidence, Kettle Point and Stony Point Band had 18 also suggested possibly doing a co-management type 19 arrangement with the Park? 20 Is that correct? 21 A: I don't believe it was -- well, it 22 was -- it was information that we discussed, yes. 23 Q: But -- 24 A: But not to the same extent that 25 manner -- that Maynard discussed it, it was --
1731 Q: No, but -- 2 A: -- the -- 3 Q: Maynard was more forceful in saying, 4 This is what I want to do. 5 A: I would say so, yes. 6 Q: All right. Liz Thunder was 7 suggesting it as an idea -- 8 A: As an idea. 9 Q: -- that Council was interested in? 10 A: She did not say Council. 11 Q: No. 12 A: It was an idea that we were 13 discussing at the time, informally. 14 Q: So she floated a trial balloon? 15 A: She may have. 16 Q: Okay. 17 A: Yes. 18 Q: At that point in time I'd suggest to 19 you you're in a bit of an uncomfortable situation because 20 you're being asked by two (2) different groups for the 21 same thing; is that fair? 22 A: No, I -- I don't believe so. I 23 wasn't uncomfortable because two (2) groups were -- two 24 (2) -- two (2) distinct -- two (2) different groups were 25 asking to do the same thing, no.
1741 Q: That wasn't a problem for you? 2 A: I wasn't uncomfortable with it from 3 that perspective, no. 4 Q: At the same time, if I can take you 5 to Tab 39 of your documents. 6 7 (BRIEF PAUSE) 8 9 A: Yes? 10 Q: You referred -- you referred to this 11 document in your examination-in-chief and this was quoted 12 as P-841. 13 COMMISSIONER SIDNEY LINDEN: 841. 841. 14 MR. KEVIN SCULLION: And I'll confess, 15 Mr. Commissioner, I had a little difficulty catching up 16 to some of the exhibits along the way, but I'm hoping 17 that I'm fairly accurate here. 18 19 CONTINUED BY MR. KEVIN SCULLION: 20 Q: And this was information you were 21 getting back from Chief Tom Bressette at the time, 22 correct? 23 A: I wasn't -- I wasn't receiving this 24 back, I believe it was Terry Humberstone who was 25 receiving the information.
1751 Q: You were being made aware of this? 2 A: That is correct. 3 Q: All right. So you were aware back in 4 May of 1993? In fact, you were aware that Chief 5 Bressette was against the occupation by Maynard T. 6 George? 7 A: Correct. 8 Q: Chief and council didn't support this 9 occupation? 10 A: That was my understanding. 11 Q: Right. Your understanding was that 12 Chief Bressette warned the Warrior Society members from 13 other First Nations were moving onto the general area and 14 wanted you to be aware of this, correct? 15 A: Correct. 16 Q: All right. 17 18 (BRIEF PAUSE) 19 20 Q: And that Chief Bressette was 21 expressing his opinion that if you were dealing with the 22 Stoney Point Group and giving them your support MNR is 23 helping them to make the chief and council look foolish? 24 A: That's what it states there, yes. 25 Q: All right. That's what your
1761 impression was as well, wasn't it? 2 A: Correct. 3 Q: And I'm suggesting to you that there 4 was a number of things going on through '93, '94, and '95 5 and I'm talking from a general standpoint? 6 A: Correct. 7 Q: Liz Thunder indicated that the 8 surrender was being looked at for the Park lands, 9 correct? So you indicated that there was some concern, 10 they were looking into it. 11 A: For the Park itself? 12 Q: For the Park itself. 13 A: I don't recollect, perhaps. 14 Q: You don't remember that part? 15 A: No, I don't. 16 Q: Do you remember that the Stoney Point 17 Group was openly challenging the surrender of the Park 18 and saying we're going to take that over next? 19 A: The Stoney Point -- 20 Q: The Stoney Point Group? 21 A: There -- there was an indication of 22 that, yes. 23 Q: All right. At some point in 1995 24 Stoney Point Group was occupying the Base lands and they 25 moved into the main area of the Base?
1771 A: Correct. 2 Q: Do you recall that? 3 A: Yes. 4 Q: You were also aware, I presume, from 5 your discussions with Chief and council that they had a 6 claim and they were in negotiations with the Federal 7 Government regarding the Base? 8 Were you aware of that? 9 A: I don't recollect. 10 Q: You don't recall? 11 A: I don't, to be honest with you. The 12 -- Kettle Point, Stony Point, where -- 13 Q: The Band. 14 A: Yes. 15 Q: You don't recall if they had a claim 16 or were making claims to the Army Camp lands? 17 A: To the Army Camp? 18 Q: Yes. 19 A: Yes. 20 Q: You do recall that? 21 A: Oh, I -- I -- in '95? 22 Q: '95. 23 A: I don't recall that, to be honest 24 with you I don't. You can refresh my memory through some 25 documentation, but I -- I don't...
1781 (BRIEF PAUSE) 2 3 Q: I'm suggesting to you that the fact 4 that the army camp lands were joining the Park to the 5 south and to the east and that the Stoney Point group and 6 Kettle Point Stony Point group were making claims to 7 those lands, were causing concerns for you all the way 8 from 1993 through to September of 1995? 9 A: Correct. 10 Q: All right. And part of those 11 concerns were the -- was the impact that it was having on 12 your campers? 13 A: Correct. 14 Q: Correct. And when I was listening to 15 your explanations yesterday and the day before regarding 16 the incidents, it seemed to me that you were casting the 17 blame on those incidents on the Stoney Point group? 18 Was that the impression you were trying to 19 convey. 20 A: I was trying -- excuse me, I was 21 trying to convey that any of the conflicts were coming 22 from the base area, I guess, if that's what you're 23 referring to. 24 The occurrences or -- 25 Q: You were referred to a number of
1791 occurrences -- 2 A: Yes. Yes, those that occurred in the 3 Park. 4 Q: And your descriptions of the 5 occurrences -- 6 A: Yes. 7 Q: -- and I'm suggesting to you that 8 your description of the occurrences was to cast blame on 9 the Stoney Point group for those occurrences? 10 And I'm asking you, was that your 11 intention? 12 13 (BRIEF PAUSE) 14 15 A: I don't believe so. I believe that 16 those occurrences reflected concerns of our campers. 17 Q: Well, I'm suggesting to you that most 18 of those incidents occurred when the campers strayed onto 19 the army camp lands or the beach to the north of the army 20 camp lands. 21 Would you agree that that was the primary 22 cause of the confrontations that were occurring? 23 A: There were several other occurrences 24 that occurred inside the Park as well. 25 Q: Yes, there were, but I'm suggesting--
1801 A: Yes. 2 Q: -- to you that the majority of the 3 offences are the confrontations were occurring because 4 campers were straying onto the beach -- 5 A: I wouldn't say the majority, but I 6 would say there were some, yes. 7 8 (BRIEF PAUSE) 9 10 MR. KEVIN SCULLION: Too many tabs, Mr. 11 Commissioner. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. KEVIN SCULLION: 16 Q: If I could turn you to Tab 109. 17 18 (BRIEF PAUSE) 19 20 A: Yes. 21 Q: This is a tab that you were referred 22 to in your examination-in-chief that related to certain 23 things Staff Sergeant Bouwman was referring to you, but 24 I'd like for you to go to page 2. 25 MS. SUSAN VELLA: This is Exhibit P-774.
1811 MR. KEVIN SCULLION: Thank you, Ms. 2 Vella. 3 4 CONTINUED BY MR. KEVIN SCULLION: 5 Q: There seem to be concerns expressed 6 in this memo relating to the upcoming May 24 weekend and 7 possible confrontations that were going to, or possibly 8 occur. 9 A: Yes. 10 Q: Do you recall that situation? 11 A: Yes. It's in my e-mail here. 12 Q: Right. It's your e-mail, you drafted 13 it, and one of the points half way down the page... 14 A: Yes? 15 Q: That you say would -- would be 16 effective or helpful in preventing these confrontations, 17 is to deploy enforcement staff from Pinery to Ipperwash 18 to blitz alcohol related enforcement problems and 19 evicting as many offenders as possible in order to lessen 20 the potential Park user and native confrontation 21 potential. 22 A: Yes. 23 Q: That was seen as a way of lessening 24 these confrontation possibilities? 25 A: Correct.
1821 Q: Did you ever consider posting an MNR 2 staff member at the east end of the beach? 3 A: I don't believe that was ever 4 considered. 5 Q: Why not? 6 A: I don't know. 7 Q: It just seemed to me, when I was 8 looking at these confrontations that are occurring at the 9 east end of the beach, that posting a member of the MNR 10 would have assisted in what you seemed to be trying to 11 do, which was prevent the campers from straying onto the 12 DND beach. 13 A: Yes. 14 Q: Now as these confrontations seemed to 15 increase in the summer of 1995 my impression from your 16 evidence was, you saw your staff personnel as being -- or 17 having the role of being the eyes and ears for the OPP? 18 A: Correct. 19 Q: You weren't directed and you weren't 20 willing to get involved in any major incidents simply 21 report them to the OPP, correct? 22 A: Correct. 23 Q: And if there was a minor incident 24 where you could -- or a staff member could step in and 25 simply direct the campers one way and -- and explain to
1831 the Natives what you were doing, that was sufficient, 2 from your point of view? 3 A: Minor infraction, alcohol infraction 4 and things like that we would deal with them directly, 5 yes. 6 Q: Right. Or if somebody was straying 7 onto the beach it will be helpful to have staff member 8 deal with that without calling the OPP? 9 A: Yes. And I believe we handed out 10 notices too at the gate at the particular point in time, 11 to all visitors to the Park. 12 Q: Right. You were letting people know 13 that they shouldn't travel east on the beach? 14 A: Correct. 15 Q: And that was something new because in 16 '93/'94, at least my impression from your documentation 17 was that your campers felt they had the ability to do 18 that? 19 A: I would say that was correct. Okay. 20 Q: And in fact that's what your campers 21 were telling you when these confrontations occurred, that 22 they thought they could still travel the beach? 23 A: That is correct. 24 Q: In your evidence in-chief you 25 mentioned Glen George.
1841 A: Yes. 2 Q: And I just referred you to Tab 109. 3 A: Yes. 4 Q: Where you're relating to the 5 distribution list, which I presume is within MNR; is that 6 correct? 7 A: Yes. 8 Q: Okay. Do you remember who was on the 9 distribution list? 10 A: I do not. 11 Q: All right. But it was generally 12 within MNR; it didn't go outside of the Ministry of 13 Natural Resources? 14 A: Correct. 15 Q: One of your statements in this e-mail 16 is that Glen George was now chief and this is what Staff 17 Sergeant Bouwman was telling you? 18 A: That's correct. 19 Q: You didn't have any personal 20 knowledge of this? 21 A: I did not. 22 Q: You had no personal knowledge of Glen 23 George; you'd never met him? 24 A: At that time, no. 25 Q: All right. When was the first time
1851 you met Glen George? 2 A: Hmm. I don't recollect. I had met 3 him -- I don't know. 4 Q: Before or after the incident the 5 night of September 6th, 1995? 6 A: I believe it was after. 7 Q: All right. So when we look at the 8 next line Glen George's supporters, that's from Sergeant 9 Bouwman? 10 A: Correct. 11 Q: You had no personal knowledge of the 12 group -- 13 A: No. 14 Q: -- that's listed there? 15 A: No. 16 Q: You had no personal knowledge of 17 anyone with criminal records? 18 A: No, not to speak of. 19 Q: All right. When you first heard that 20 Glen George was the new chief, why didn't you go try to 21 meet him? 22 23 (BRIEF PAUSE) 24 25 A: I don't know.
1861 Q: Okay. You had a working 2 relationship, did you not, with Carl George? 3 A: A work -- it depends on what you call 4 a working relationship. I had a very good relationship 5 with Maynard T., he would drop in and visit, but I really 6 just delivered notices or letters to Carl and I didn't -- 7 you know, I didn't -- it wasn't conversation or -- it was 8 more doing business with him with the -- in 1993. 9 Q: Let's go with civil versus un-civil. 10 It was a civil relationship with Carl George? 11 A: Correct. 12 Q: All right. You didn't see it as 13 important to meet the new chief, Glenn George? 14 A: At that particular time? No. 15 Q: At that particular time. 16 A: No. 17 Q: You were aware of what he was asking 18 the OPP to do which was to stay off the Base with their 19 patrols? 20 A: I believe so, yes. 21 Q: Okay. And you were also aware of his 22 concern that you keep the campers in the Park and off the 23 Base lands? 24 A: Correct. 25 Q: It didn't seem unreasonable at the
1871 time to you? 2 A: No. 3 Q: Okay. 4 5 (BRIEF PAUSE) 6 7 Q: At Tab 110 you were also directed in 8 regards to a fellow by the name of Doxtator? 9 A: Yes. 10 Q: Have you ever met Mr. Doxtator? 11 A: Not to my knowledge. 12 Q: All right. You don't know anything 13 about Mr. Doxtator other than what people have told you? 14 A: Exactly. 15 16 (BRIEF PAUSE) 17 18 Q: Tab 112. 19 A: Yes? 20 Q: Which I believe was marked as P-869, 21 is an e-mail from yourself again to the distribution 22 list? 23 A: Yes. 24 Q: I assume that's still staying within 25 MNR?
1881 A: The Ministry of Natural Resources, 2 yes. 3 Q: All right. In the second paragraph 4 we have a reference again to Glenn George, acclaimed 5 chief with Warriors. 6 A: Yes. 7 Q: Did you know what a Warrior was? 8 A: At that particular time only through 9 connotation from Cornwall, you know Cornwall had a civil 10 disobedient situation; just what I read in the newspapers 11 and things like that, just a general impression I guess. 12 Q: Right. And the early impression that 13 we have coming from Chief Bressette that Warriors are 14 coming -- 15 A: Yes. 16 Q: -- to the area? 17 A: Yes. 18 19 (BRIEF PAUSE) 20 21 Q: Can I just turn you to Tab 117? It 22 should be the last tab. 23 MS. SUSAN VELLA: I think it's a certain 24 binder. 25 MR. KEVIN SCULLION: Maybe my binders are
1891 different from yours. 2 COMMISSIONER SIDNEY LINDEN: 117 is in 3 the second binder for us, I think. 4 MR. KEVIN SCULLION: Okay. 5 6 CONTINUED BY MR. KEVIN SCULLION: 7 Q: Do you have that before you? 8 A: Yes, I do. 9 MS. SUSAN VELLA: It's Exhibit P-77, I 10 believe. 11 THE REGISTRAR: 97. 12 MS. SUSAN VELLA: 97, thank you. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MR. KEVIN SCULLION: 17 Q: Do you see that? 18 A: Yes, I do. 19 Q: Okay. At the top it's one (1) page. 20 At the top there's a date, it would appear to be 2 21 August/95? 22 A: That's what it -- that's what it 23 appears to be, yes. 24 Q: All right. And there's Sergeant -- 25 there's Staff Sergeant Bouwman says he met with you in
1901 Grand Bend and advised of block situation. 2 Do you recall what this related to? 3 A: I do not. 4 Q: Our time frame is just after a fatal 5 vehicle crash that occurs on the Camp lands, do you 6 recall that? 7 A: Yes, I do. 8 Q: Does that jar your memory with 9 regards to what the lock situation was? 10 A: The lock situation was the lock on 11 Matheson Drive gate and I don't really recall the details 12 other than that. I just recall that it was lock on 13 Matheson gate and I do recall the -- the situation where 14 the fatality was there at the gate. 15 Q: Right. 16 A: In general terms. 17 Q: Right. You're looking at putting a 18 lock on Matheson gate for safety reasons. 19 A: Yes. 20 Q: And you're looking at working with 21 the Stoney Point group to ensure that that was done 22 without incident? 23 A: Yes. 24 Q: Okay. The next line says -- states 25 that:
1911 "Two (2) years ago Maynard George 2 advised MNR there's a burial ground in 3 the area of the maintenance building in 4 Ipperwash Provincial Park. Never 5 confirmed or verified." 6 Do you know why that came up in that 7 conversation? 8 A: I do not. 9 Q: The next part is meeting with Les 10 Jewel, for Staff Sergeant Bouwman. You weren't part of 11 that meeting? 12 A: I was not. 13 Q: All right. It appears to again 14 relate to the -- the locks and putting up signs on the 15 beach. Do you recall that issue, the concept of putting 16 up signs on the beach? 17 A: I don't recall it to be honest with 18 you, no. 19 Q: No, you don't recall the issue of 20 putting up signs at the east end of Ipperwash Provincial 21 Park to prevent campers from going onto the DND beach? 22 A: I just don't recall it. 23 Q: We next have an entry for Staff 24 Sergeant Bouwman. It relates to meeting with Glen 25 George.
1921 It says that he gave him a copy of signs 2 to be posted around the base; talked about press release 3 and wanted him to give the release to the press whereas 4 Staff Sergeant Bouwman advised Glen George it was up to 5 the Stoney Pointers to give their own release to the 6 press. 7 It says: 8 "Stated Judas George would go and cut 9 lock off and agreed to terms on locking 10 by MNR and the policy on the key. 11 Also stated that they were in mourning 12 for ten (10) days for their people 13 killed in the accident. No business 14 except for day to day business would be 15 dealt with and on the tenth day they 16 would have a feast. 17 Also there would be a ceremonial fire 18 beside the front gate." 19 Were you advised of any of that by Staff 20 Sergeant Bouwman? 21 A: I was not. 22 Q: You weren't aware that -- 23 A: No. 24 Q: -- that was going on -- 25 A: No, I wasn't.
1931 Q: -- in the Park or in the Camp, sorry? 2 A: No, I wasn't. 3 4 (BRIEF PAUSE) 5 6 Q: All right. We'll check with Staff 7 Sergeant Bouwman when he testifies -- 8 A: Yes. 9 Q: -- in that regard. 10 A: Yes. I just don't recall it. 11 Q: I just wanted to know if you ever 12 heard of any of that? 13 A: I don't recall it. 14 15 (BRIEF PAUSE) 16 17 Q: Okay. If I can skip ahead to 18 September 4th. As we talked earlier, my impression was 19 that the Park was, for all intents and purposes, closed 20 or not -- although not officially closed, and that the 21 assets had, for the most part, been evacuated by the time 22 the Stoney Point group came onto the Parklands. 23 Is that fair? 24 A: That would be a fair assessment, yes. 25 Q: All right. And you left at some
1941 point that day and received a call from your second in 2 command, who's name escapes me at the moment. 3 A: Don Matheson. 4 Q: Don Matheson. 5 A: Yes, the assistant superintendent. 6 Q: Right. And Mr. Matheson's passed 7 away now. 8 A: Yes, he has. 9 Q: Okay. And he called you back to the 10 Park or he called you to tell you that this had occurred 11 or both? 12 A: Both. 13 Q: All right. You went back to the 14 Park? 15 A: Yes. 16 Q: And if I recall your evidence 17 correctly, you arrived at 8:20 that evening? 18 A: That sounds correct. 19 20 (BRIEF PAUSE) 21 22 Q: And when I reviewed the paperwork 23 that relates to that attendance, it appeared that you 24 left the area after the confrontation which we'll talk 25 about in a second, at about 9:30.
1951 A: That's perhaps correct. I'd have to 2 look at the dates and the times and so forth, yes. 3 4 (BRIEF PAUSE) 5 6 MR. KEVIN SCULLION: Just a moment, Mr. 7 Commissioner. I'm just finding the document. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. KEVIN SCULLION: 12 Q: If you turn to Tab 132. 13 A: Yes? 14 Q: Page 1 it says: 15 "I arrived..." 16 This is your Will Say which I believe and 17 I may be wrong, it's marked as P-879. 18 COMMISSIONER SIDNEY LINDEN: That's what 19 I've got. 20 MR. KEVIN SCULLION: So far so good. 21 THE WITNESS: Yes. 22 23 CONTINUED BY MR. KEVIN SCULLION: 24 Q: Three-quarters of the way down it 25 says:
1961 "I arrived at Ipperwash Park to assume 2 responsibility at approximately 8:20 3 p.m." 4 A: That's correct. Correct. 5 Q: All right. What were you assuming 6 responsibility for? 7 A: For -- I believe at that time there 8 were still a few people moving in and out of the -- or 9 leaving the Park -- visitors. And when I arrived I could 10 -- I could see visitors still leaving the Park from the 11 day use area. 12 Q: Right. Weren't the OPP managing the 13 visitors -- 14 A: They were. 15 Q: -- leaving the Park? 16 A: They were so. 17 Q: Okay. Wasn't this a police operation 18 at this point in time now that the occupation or the 19 Stoney Point Group had moved onto the Park land? 20 A: I would say so. 21 Q: Okay. Is it fair to say you weren't 22 assuming responsibility, you were there to assist the 23 OPP? 24 A: That is correct. 25 Q: All right.
1971 A: Yes. 2 Q: I then turn to page 2, first 3 paragraph, the bottom of that paragraph says: 4 "We left the Park at approximately 9:30 5 p.m." 6 Do you see that? 7 A: First paragraph? 8 Q: Page 2 first paragraph. 9 A: Oh, yes, sorry. Yes. 10 Q: That's accurate? 11 A: I believe so. 12 Q: All right. So, you were there for 13 approximately an hour and ten (10) minutes? 14 A: Correct. 15 Q: Were you in the same spot for an hour 16 and ten (10) minutes at that area? 17 A: In the -- yes, that's right. 18 Q: Okay. And there were natives there 19 and there were police there? 20 A: Correct. 21 Q: Was it a confrontation for an hour 22 and ten (10) minutes or were people getting along? 23 A: Initially people were getting along, 24 then it escalated to a confrontational situation I guess. 25 Q: Right. So, there was -- there was
1981 discussions for much of that hour and ten (10) minutes 2 that ended in a confrontation? 3 A: Yes. 4 Q: I suggest to you that much of the 5 discussion revolved around the Stoney Point Group asking 6 everybody to leave the Park; is that fair? 7 A: I believe they were talking to 8 Sergeant Korosec. I was back significantly, but that 9 would be fair; that would be fair. 10 Q: You were back but you were listening 11 to the conversation. 12 A: I was -- yeah, that's right, some of 13 it, yes. 14 Q: All right. It's not only fair, but 15 it's accurate isn't it? 16 A: Yes. No, it's fairly fair. 17 Q: They were asking people to leave 18 including the police and MNR staff? 19 A: They were asking people to leave, 20 yes. 21 Q: Right. 22 A: Yeah. 23 Q: And they were asking you, Mr. 24 Matheson, and the OPP officers to leave? 25 A: They weren't --
1991 Q: Right. 2 A: -- asking me directly. I think they 3 were asking all of us, that in a sense that it was -- 4 there was a crowd of people around -- around us at that 5 time and people were hollering and talking and screaming 6 and so forth and I would say yes, the -- the intent was 7 for us to leave, yes. 8 Q: You were under no misunderstanding 9 that you -- 10 A: I was not. 11 Q: -- you were being asked to leave? 12 A: I was not. Yes, that's correct. 13 Q: All right. For an hour -- 14 A: That was correct. 15 Q: For an hour and ten (10) minutes you 16 didn't leave? 17 A: That's correct. 18 Q: At some point in time Roderick 19 George, who's also known as Judas -- 20 A: Yes. 21 Q: -- yelled at people to leave the 22 Park? 23 A: That's accurate. 24 Q: And he gave a timeframe for leaving 25 the Park?
2001 A: That's correct. 2 Q: He said, Get out, the countdown 3 begins? 4 A: Exactly. 5 Q: And he started to count down? 6 A: Exactly. 7 Q: He got to the end of his count down 8 and nobody had left? 9 A: I believe that's correct, yes. 10 Q: All right. I heard from you that you 11 thought that he had a staff? 12 A: Yes. 13 Q: And that it was over six (6) feet 14 tall? 15 A: I didn't say over, approximately six 16 (6) feet I would think or thereabouts, yes. 17 Q: How tall are you? 18 A: Five (5) foot six and a half (6 +). 19 Q: Okay. 20 A: It would be -- 21 Q: The staff was taller than you? 22 A: It appeared to be a large -- large 23 stick, yes. 24 Q: And how wide was it? How -- what was 25 the diameter?
2011 A: It was large enough to break out the 2 back of a cruiser window -- 3 Q: I appreciate that. 4 A: -- with some force, but -- 5 Q: Your estimate as to how big it was? 6 A: Two and a half (2 +) -- three (3) 7 inches, two (2) inches; in there someplace. 8 Q: Did he have that the entire time he 9 was there? 10 A: I don't recollect. 11 Q: Roderick George has testified at the 12 Inquiry and he testified that he counted down, nobody had 13 left and he went to his car and pulled out part of a 14 crutch and smashed the back window of the OPP cruiser. 15 A: I don't know if that is the case or 16 not. I -- it appeared to me to be a stick. 17 Q: You were there. 18 A: Yes. 19 Q: Did you see him go get something from 20 the back of his car? 21 A: I don't recall that. 22 Q: You don't recall him getting it? 23 A: I do not. 24 Q: You don't know where he got it from? 25 A: I do not.
2021 Q: At that point everybody left, didn't 2 they? 3 A: We did so. Yes. 4 Q: All right. Where did you go at that 5 point in time? 6 A: I believe we went back -- we went to 7 Forest to the command post. 8 Q: Okay. So, you went directly to the 9 command post? 10 A: Yes. 11 Q: I've seen an entry that indicated you 12 were faxed a notice to serve on the people in the Park to 13 tell them it was closed and they were trespassing. 14 A: That is correct. 15 Q: I've seen references to the time of 16 approximately 10:00 p.m. that you officially closed the 17 Park. 18 A: That is correct. 19 Q: What's the difference between 20 officially closing and closing for the season? What does 21 that mean? 22 A: Officially closing the Park would be 23 that under emergency -- under the Provincial Parks Act, I 24 had authority under the -- to close the Park in emergency 25 situations.
2031 As far as the Park, because the rest of 2 the Park wouldn't be continually used, if it wasn't emerg 3 -- if it wasn't closed because of an emergency, then 4 people would still be able to access and use the Park 5 without having to pay. 6 They could walk in and enjoy the 7 facilities that were left remaining such as picnic 8 tables, the beach and so forth. 9 Q: So, you had to officially close 10 the Park for people to be trespassing? 11 A: Yes, that's right. 12 Q: Just before when the incident with 13 Judas George occurred -- 14 A: Yes. 15 Q: Was there notice given that the Park 16 was closed or being closed and that people were 17 trespassing? 18 A: I don't recollect. 19 Q: You don't recall telling them they 20 were trespassing and that they should get out of the 21 Park? 22 A: I don't recollect. 23 Q: Back in Forest you decided this was a 24 necessary step in order to get the injunction. 25 A: That wasn't decided in Forest. It
2041 had been decided through the -- through the contingency 2 planning process, I believe. 3 Q: That was part of the contingency 4 plan -- 5 A: Yes. 6 Q: And you were appointed from the MNR 7 to serve that notice. 8 A: That is correct. 9 Q: And that was decided -- sorry, it was 10 part of the contingency plan to serve that at ten (10) -- 11 after ten o'clock at night? 12 A: No. That's not -- I would have to 13 refer to the plan. But that's when I received the 14 trespass to property notice, the actual notice, the 15 approved notice that I signed. 16 Q: Well who decided to serve it then as 17 opposed to the next morning? 18 A: That was in the plan that it would be 19 served as soon as possible. 20 Q: So, you're telling me that the plan 21 was as soon as you had that written notice, you were to 22 serve it? That was part of the contingency plan? 23 A: As soon as the Park had been closed, 24 we would serve the notice, yes. 25 Q: And I understand that you made calls
2051 to a fellow by the name of Dan Elliott at that point in 2 time, correct? 3 A: That's -- that's possible, yes. 4 Q: You -- you were telling Dan Elliott 5 what you were about to do? 6 A: Yes, I believe so. 7 Q: All right. You were about to serve 8 notice -- 9 A: Yes. 10 Q: -- that the Park is closed on the 11 Stoney Point group? 12 A: Yes. 13 Q: Who decided that Vince George was 14 going to join you to serve that notice? 15 A: That would have been decided at the 16 command post by the incident commander. 17 Q: It wasn't decided by you? 18 A: It certainly was not. 19 Q: All right. You didn't ask for the 20 ERT team to come with you to provide cover? 21 A: No. 22 23 (BRIEF PAUSE) 24 25 Q: Were you afraid that if you returned
2061 with that notice at that point in time that there was 2 going to be violence? 3 A: I was concerned that there could be 4 more violence, yes. 5 Q: That if you arrived in, I'll suggest, 6 the middle of the night to serve notice on people, you 7 didn't know what was going to happen? 8 A: Exactly. 9 Q: But did -- were you fearing for your 10 own safety? 11 A: I would be concerned, yes. I was 12 concerned. 13 14 (BRIEF PAUSE) 15 16 Q: Because I look at your Tab 133... 17 A: Yes? 18 Q: You see that, from Dan Elliott to the 19 distribution list? 20 A: Yes. 21 Q: September 4th, nine o'clock, he's e- 22 mailing what he understands the situation to be. 23 A: Yes. 24 Q: You see that? 25 A: Yes.
2071 Q: And as I read through it, I read 2 about a quarter of the way down: 3 "All patrons have left the Park" 4 Do you see that? 5 A: Yes. 6 Q: "Ed sent Les the Park closure order 7 at 9:35 p.m. [with a fax number]" 8 A: Yes. 9 Q: "Plan to issue Park closure order to 10 natives at 10:00 p.m. tonight" 11 A: Yes. 12 Q: "No media at this time." 13 A: Yes. 14 Q: Was that by design? 15 A: Not to my knowledge. 16 Q: Did you tell him that you were doing 17 it because there was no media at that -- 18 A: No, I did not. 19 Q: -- time? Did you have that 20 discussion with -- 21 A: I don't -- 22 Q: -- Dan Elliott? 23 A: -- believe I did. 24 Q: Next line says: 25 "OPP well prepared and plan to take
2081 maintenance area as a holding 2 location." 3 Do you see that? 4 A: Pardon me, sorry, I missed -- 5 Q: Next line. 6 A: Yes. 7 Q: "OPP well prepared and plan to take 8 maintenance area as a holding 9 location." 10 A: Yes. 11 Q: I suggest to you that you told Dan 12 Elliott that part of the plan of going back to serve 13 notice was for the OPP to take the maintenance area as a 14 holding location. 15 A: I'm uncertain that I gave Dan this -- 16 these details, to be honest with you. I don't recollect 17 it. 18 Q: Right. Take a look at the map behind 19 you -- 20 COMMISSIONER SIDNEY LINDEN: Just before 21 you do -- 22 THE WITNESS: Yes. 23 COMMISSIONER SIDNEY LINDEN: -- that, 24 just before you do that, the last document that you've 25 been referring to, for the record, it's P-901.
2091 MS. SUSAN VELLA: That's correct. 2 COMMISSIONER SIDNEY LINDEN: And you want 3 to -- 4 MS. SUSAN VELLA: Yes. 5 COMMISSIONER SIDNEY LINDEN: The number, 6 the document number for the record? 7 MS. SUSAN VELLA: 1008117. 8 COMMISSIONER SIDNEY LINDEN: Carry on. 9 MR. KEVIN SCULLION: Thank you, Mr. 10 Commissioner. 11 12 CONTINUED BY MR. KEVIN SCULLION: 13 Q: And we talked about this a little bit 14 earlier. We're going to try to do it. Can you mark on 15 the map behind you where the maintenance area is for the 16 Ipperwash Provincial Park? 17 18 (BRIEF PAUSE) 19 20 MS. SUSAN VELLA: And we should 21 distinguish the markings -- do you know how many markings 22 you're going to use? 23 MR. KEVIN SCULLION: Three (3). 24 MS. SUSAN VELLA: Three (3). What 25 marking did you put on that, Mr. Kobayashi?
2101 THE WITNESS: I put an X? 2 MS. SUSAN VELLA: An -- 3 THE WITNESS: I'm sorry, I put an X. 4 MS. SUSAN VELLA: An X. Well -- maybe 5 you'd put a number 1 beside that. 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MR. KEVIN SCULLION: 10 Q: All right. So, you've marked the 11 aerial map with an X -- 12 A: Yes. 13 Q: -- where the maintenance area was? 14 A: Yes. 15 16 (BRIEF PAUSE) 17 18 Q: Looking back at my time-line, it 19 seems to indicate that at 10:45 p.m. you head for 20 Ipperwash Provincial Park with OPP escort and coverage, 21 to attempt to serve trespass notice to the group of 22 Natives. 23 Is that accurate? 24 A: That premise is, yes. 25 Q: All right. So at 10:45 you're now
2111 going back to the Ipperwash Provincial Park with police 2 escort accompanied up front by Vince George -- 3 A: Yes. 4 Q: -- you have eight (8) ERT team 5 members -- 6 A: Yes. 7 Q: -- coming with you to serve this 8 notice and you've told us that you could either give it 9 to somebody or just give them verbal notice. 10 Is that what I understand? 11 A: I -- I understood that I had to give 12 the notice. My job was to give the actual notice itself. 13 I wasn't -- I don't believe I told you that it was to be 14 verbal notice, personally. 15 Q: All right. Your -- your 16 understanding was that you physically had to give the 17 piece of paper to somebody? 18 A: That is correct. 19 Q: You couldn't leave it for them at the 20 gate? You couldn't post it on a tree? 21 A: That was my understanding, yes. 22 Q: You had to physically give it to 23 them? 24 A: That is correct. 25 Q: All right. And who told you that?
2121 A: I believe that was discussed when we 2 were doing the contingency planning. 3 Q: A month earlier? 4 A: Correct? 5 Q: Did you discuss that back at Forest 6 with the OPP? 7 A: I don't recall. 8 Q: It's possible. 9 A: Perhaps. 10 Q: You told them what you were going to 11 do, didn't you? 12 A: I -- I told -- they were well aware 13 of our plan. They had actually seen our plan, had 14 chances to comment on it and -- yeah, I believe, yes, 15 they asked me if -- when I was going to serve the 16 notice. 17 Q: I appreciate that. But you 18 physically told them you were going to physically serve 19 the notice on somebody? 20 A: I didn't say physically. I said I 21 had the notice and my -- my responsibility was to serve 22 the notice, yes. 23 Q: You go back down to the Park. 24 A: Correct. 25 Q: Where do you park your vehicle?
2131 A: We parked at the Crown Beach area on 2 East Parkway Drive. 3 Q: Which is the MNR parking lot? 4 A: Crown Beach parking lot, that's 5 correct. 6 Q: You refer to it as the Crown Beach 7 parking lot? 8 A: Yes, I do. 9 Q: All right. At times we've referred 10 to it as well as the MNR parking lot. 11 A: Okay. 12 Q: So we're straight as to what it is. 13 And that's down East Parkway Drive, 14 correct? 15 A: That is correct. 16 Q: And is that where the ERT team parks 17 their vehicle? 18 A: I don't recollect 19 Q: Do you recall what vehicle the ERT 20 team drove? 21 A: I do not. 22 Q: Do you recall if it was a van or if 23 they were in cars? 24 A: I -- actually I don't know. 25 Q: Everybody gets out of their vehicle
2141 and walks down East Parkway Drive? 2 A: Correct. 3 Q: Where do you go first? 4 A: We go to the main entrance roadway 5 into the Park. The main entrance road. 6 Q: All right. And you walk down the 7 main entrance road to the main gate? 8 A: Towards the main gate. We didn't get 9 quite down to the main gate. 10 Q: You didn't make it to the main gate? 11 A: We did not. 12 Q: I thought you went inside the Park? 13 A: We did. The main gate is perhaps two 14 (2) to the three hundred (300) yards inside the Park. 15 The main gate itself. There was a gate gated but that 16 isn't what we call the main gate. The main gate is the 17 main gate control office. 18 Q: Okay. I'm just trying to understand 19 what you're referring to as the main gate -- 20 A: Right. 21 Q: -- versus the gated area. 22 A: Yes. 23 Q: I take it then that the gated area is 24 what part of the Park is by the sandy parking lot? Or by 25 Army Camp Road?
2151 A: There is a main gate prior to the 2 sandy parking lot that I think you're referring to. 3 Q: Right. On East Parkway. 4 A: That's correct. 5 Q: I'm sorry, on Army Camp Road. 6 A: That's correct. 7 Q: All right. So following your course, 8 you get to the corner of East Parkway Drive and Army Camp 9 and then you go south on Army Camp Road? 10 A: Correct. 11 Q: Do you see anything happening in the 12 parking lot? 13 A: I don't recollect. 14 Q: All right. There's nobody in the 15 parking lot that you remember? 16 A: Not to my knowledge. 17 Q: You go up to the area that you refer 18 to as the gated part of the main -- 19 A: Entrance, yes. 20 Q: -- the gated entrance. Maybe you can 21 mark that on our aerial photograph as well? 22 MS. SUSAN VELLA: It has to be X2 and 23 this is Exhibit P-915, just for the record. 24 THE WITNESS: Yes. 25
2161 CONTINUED BY MR. KEVIN SCULLION: 2 Q: So you've marked X2 at the entrance. 3 A: 2X actually. 4 Q: 2X. This will get interesting. 5 A: Yes. 6 Q: All right. 2X and at that point in 7 time you and Vince George are waving your flashlights 8 trying to attract attention? 9 A: That is correct. 10 Q: Where are the eight (8) ERT team 11 members? 12 A: At that time I really wasn't sure 13 when we were doing that, but they were fairly close. 14 Q: They had left you or they were still 15 right behind you? 16 A: They were -- they were out of sight 17 and I was more or less looking down the gate -- the main 18 gate road so. 19 Q: Okay. 20 A: They weren't standing directly with 21 us at that time. 22 Q: They'd moved away from you? 23 A: That's correct. 24 Q: They were providing cover? 25 A: That's correct.
2171 Q: You left Forest at 10:45? 2 A: Yes. 3 Q: How long did it take you to get to 4 this spot? 5 A: It took us -- it took us a bit of 6 time because we met Vince George in Ravenswood at, I 7 believe it was the church. 8 Q: What does "a bit of time" mean, 9 twenty (20) minutes? 10 A: Perhaps, yes. 11 Q: All right. So we're in or around 12 eleven o'clock? 13 A: I believe so, yes. 14 Q: Then you start walking in -- 15 A: Yes. 16 Q: -- towards what you referred to as 17 the main gate area? 18 A: Correct. 19 Q: You make it in a hundred (100) yards? 20 A: Correct. 21 Q: Can you mark on the map where you 22 made it into? 23 24 (BRIEF PAUSE) 25
2181 MS. SUSAN VELLA: Is that 3X? 2 THE WITNESS: 3X, yes. 3 MR. KEVIN SCULLION: Getting larger. 4 5 CONTINUED BY MR. KEVIN SCULLION: 6 Q: So you've made it to the area marked 7 3X. 8 A: Correct. 9 Q: Where's the ERT team at this point in 10 time? 11 12 (BRIEF PAUSE) 13 14 MS. SUSAN VELLA: For the record, did you 15 mark something on that map? 16 THE WITNESS: I just marked two (2) 17 slashes, would you like me to put 4 and 5? 18 MS. SUSAN VELLA: Is it two (2) slashes 19 beside the 3X mark, more or less? 20 THE WITNESS: Correct. 21 22 CONTINUED BY MR. KEVIN SCULLION: 23 Q: Did you know they were there or are 24 you just presuming that by providing cover they would be 25 somewhere where those lines are?
2191 A: Partway through I knew they would -- 2 they were there because I heard a -- a couple of twigs 3 crack and I just glanced over and saw an outline of an 4 officer, yes. 5 Q: All right. So you saw an outline of 6 one (1) officer -- 7 A: Yes. 8 Q: -- and you heard a twig crack? 9 A: Yes. 10 Q: And you presumed from that that there 11 was eight (8) of them along the two (2) lines that you've 12 drawn? 13 A: I presume there was -- the officers 14 were there, yes. 15 Q: But you don't know where they were, 16 exactly? 17 A: Exactly, no. 18 Q: Okay. 19 A: I believe that was established later 20 when we went back to the command post. 21 Q: I heard you mention something, but 22 maybe you can explain. 23 A: When I went back to the command post 24 I expressed surprise that they were so close, that I 25 really didn't know they were so close and they said they
2201 were right along the road. 2 Q: Right along the road? 3 A: Beside -- close to -- fairly close to 4 us. 5 Q: Right along where you were going in? 6 A: That's correct, yes. 7 Q: All right. And at some point in time 8 Bert Manning comes out -- 9 A: Yes. 10 Q: -- and we get into what you've talked 11 about which is Bert Manning going off to find somebody? 12 A: Correct. 13 Q: All right. 14 A: He was looking for a spokesperson is 15 I believe the words used. 16 Q: Okay. 17 A: He wasn't accepting -- 18 Q: And then you waited there for him to 19 come back? 20 A: Yes. 21 Q: Did you feel that you were in danger 22 at that point in time? 23 A: Actually I felt very uncomfortable, 24 yes. 25 Q: You felt very uncomfortable?
2211 A: Yes. 2 Q: Why? 3 A: It was extremely dark. We had our 4 flashlights but it was still very dark down that road. 5 There -- there are no lights along that road and it was - 6 - it was dark. 7 Q: And -- 8 A: I just -- I feel uncomfortable in 9 those types of situations; it's out of the norm for 10 myself. 11 Q: Okay. I suggest to you that you 12 didn't feel that you were in any danger and you were 13 simply waiting for Mr. Manning to come back. 14 A: I felt that -- that -- I was 15 uncomfortable but I felt secure if -- if that's what 16 you're saying. 17 Q: I'm suggesting that you felt that you 18 weren't in any danger when you were serving this notice. 19 Do you disagree with that? 20 A: Can you define dangerous -- danger? 21 Q: I'm suggesting to -- 22 A: For myself, well being. 23 Q: -- you that you, as an MNR staff, an 24 officer -- 25 A: Yes.
2221 Q: -- did not feel that you were in any 2 danger from the Stoney Point group. 3 4 (BRIEF PAUSE) 5 6 A: I would say that I was very 7 uncomfortable. 8 Q: I'll take you to Tab 214. 9 10 (BRIEF PAUSE) 11 12 A: Yes. 13 Q: Mark that as P-895. This is the 14 review that took place? 15 A: Correct. 16 Q: And you contributed to this review? 17 A: A very small part, yes. 18 Q: Well, you played a part in describing 19 what you did? 20 A: Yes. 21 22 (BRIEF PAUSE) 23 24 Q: You referred, I believe, in 25 examination in-chief to point 6, which unfortunately we
2231 don't have any page numbers but -- 2 A: I have it here, yes. 3 Q: And neither do I, but it's the fourth 4 page in. 5 A: Yes. 6 Q: Point 6. 7 A: Yes. 8 Q: This would appear to have been a 9 presentation by Peter Sturdy and yourself? 10 A: Correct. 11 Q: The second point says: 12 "Les was prepared to serve the notice 13 of trespass along with a native 14 constable. Didn't feel in danger but 15 situation was scary." 16 A: Yes. 17 Q: That was accurate, wasn't it? 18 A: That's fairly accurate, but once 19 again, it's how you -- what you define in dangered -- or 20 danger, find as a dangerous situation. 21 I felt it was a dangerous situation, 22 however I felt comfortable with the OPP support and so 23 forth. 24 Q: You were telling your colleagues -- 25 A: I just --
2241 Q: -- back at the MNR that it was -- 2 A: Yes. 3 Q: -- a scary situation but you didn't 4 feel in danger, correct? 5 A: I'm not sure I did -- I -- I used the 6 word in danger, that's perhaps somebody else's wording, 7 not my wording. 8 I would have said that I -- I -- it was -- 9 I was very uncomfortable, which I was. 10 11 (BRIEF PAUSE) 12 13 Q: Now, you used the time frame half an 14 hour. 15 A: For? 16 Q: For Bert Manning to come back. Is 17 that accurate? 18 A: That must be if it was in my notes, 19 yes. 20 Q: So in or about 11:30 at this point? 21 A: I believe so. 22 Q: All right. And you talked with Bert 23 Manning very quickly because he told you to get off the 24 land. 25 A: That is correct.
2251 Q: Which was consistent with the 2 messages that you had previously which was get off the 3 land. 4 A: Exactly. 5 Q: Consistent with the 1993 messages 6 which is, it's our land. We're coming to take it back. 7 A: Exactly, yes. 8 Q: Nothing -- 9 A: I would agree. 10 Q: -- out of the ordinary? Except he 11 might have yelled it at you? 12 A: It was out of the -- yeah, that's 13 right. 14 Q: So you went back out to the road. 15 A: Yes. 16 Q: Where did you go at that point in 17 time? 18 A: I believe we went back to the -- the 19 Crown beach parking lots. 20 Q: All right. 21 A: The parking lot. 22 Q: Also known as the MNR parking lot? 23 A: The MNR parking lot. 24 Q: How long were you there? 25 A: I don't recall to be honest with you,
2261 but it was a bit of time. 2 Q: Five (5) minutes, ten (10) minutes? 3 A: I don't recall. 4 Q: Half an hour? 5 A: I don't recall. 6 Q: Four (4) hours? 7 A: It wasn't four (4) hours, no. 8 Q: Give me an idea of how long -- 9 A: I would have to look and see exactly 10 what I stated in my -- my Affidavit what it would be for 11 the amount of -- exact time. 12 Q: Do you think the time was in your 13 Affidavit? 14 A: I believe so, or it was in some notes 15 some place. 16 Q: Do you keep any written notes? 17 A: I did not, no. 18 Q: Just mental notes? 19 A: I kept mental notes and sent e-mails 20 with the information that I was providing, yes. 21 Q: I tell you, I'm impressed with the 22 detail you're able to keep with the mental notes. 23 A: Actually, it was -- my memory was 24 very good at the time. 25
2271 (BRIEF PAUSE) 2 3 MR. KEVIN SCULLION: If I could have a 4 moment, Mr. Commissioner -- 5 COMMISSIONER SIDNEY LINDEN: Sure. 6 MR. KEVIN SCULLION: -- I do want to make 7 this... 8 9 (BRIEF PAUSE) 10 11 MS. SUSAN VELLA: Would you put Exhibit 12 P-551 in front of the witness. It's the motion record 13 which has the sworn affidavit in it. And Tab 155 is the 14 -- the draft affidavit. 15 THE WITNESS: Thank you. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MR. KEVIN SCULLION: 20 Q: Are you able to find the reference? 21 A: I was looking for it. It must be in 22 my Will Say. 23 MS. SUSAN VELLA: Yes, it's Tab -- Tab 24 132. Page 2 of that document, Exhibit P-879. 25
2281 CONTINUED BY MR. KEVIN SCULLION: 2 Q: Do you have that in front of you? 3 A: I'm looking. 4 MS. SUSAN VELLA: Third paragraph. 5 THE WITNESS: Yes. 6 7 CONTINUED BY MR. KEVIN SCULLION: 8 Q: I'm looking at the third paragraph 9 and I see a time print and I was inaccurate when I said 10 half an hour. Your Will Say says fifteen (15) minutes 11 you waited for Mr. Manning to come back. 12 A: That is correct. 13 Q: But I think we're still in the 11:00 14 to the 11:30 timeframe. 15 A: Perhaps, yes. 16 Q: Your Will Say suggests that you went 17 back to the MNR parking lot and waited. 18 A: Yes. 19 Q: You waited there approximately 20 fifteen (15) minutes. Sorry, you went back for a short 21 period of time. 22 A: Yes. 23 Q: So, we're now -- we're no closer. 24 You don't recall if it was five (5), ten (10), fifteen 25 (15) minutes?
2291 A: I do not to be honest with you. 2 Q: Can you help us as to whether or not 3 it was more than half an hour? You're in a parking lot, 4 it has no lights I presume? 5 A: No. 6 Q: So, you're in the dark -- 7 A: Yes. 8 Q: -- presumably you're not there very 9 long. And you decide as opposed to getting in your cars 10 and going back to Forest, let's try this one (1) more 11 time. 12 A: I didn't decide. I believe I was 13 directed by the OPP. So, I wasn't giving it a great deal 14 of thought. I wasn't taking the lead at this particular 15 point and so at times I wasn't determining timelines. 16 Q: Fair enough. I used that as a royal 17 we. The group collectively -- 18 A: Yes. 19 Q: -- someone within the group decides. 20 Let's try this again. 21 A: Yes. 22 Q: Let's go back. 23 A: Yes. 24 Q: I suggest to you, you weren't in that 25 parking lot very long and you went back and tried again.
2301 Does that -- 2 A: I'm not sure how long it was. So, 3 it's how -- what you define not very long. 4 Q: All right. 5 A: A short period of time then we went - 6 - a period of time then we went back I guess, yes. And 7 it's -- it's a little bit of a walk too so it's not a two 8 (2) minute -- it's not a two (2) minute walk as -- 9 Q: How a long walk is it? 10 A: Five (5) minutes, maybe six (6) or 11 seven (7) minutes, ten (10) minutes, in there someplace. 12 Q: Okay. So five (5), six (6), seven 13 (7) minute walk back to the MNR parking lot. 14 The decision's made to come back; five 15 (5), six (6), or seven (7) minute walk back? 16 A: Yes. Yes. 17 Q: Can you show us where on that map you 18 tried to make the second attempt at serving the notice? 19 20 (BRIEF PAUSE) 21 22 Q: You've marked that as "4X"? 23 A: I have. 24 Q: All right. And that, from where I am 25 appears to be --
2311 COMMISSIONER SIDNEY LINDEN: Yes? Yes, 2 Mr. Myrka? 3 MR. WALTER MYRKA: I'm sorry I couldn't 4 see because of where Mr. Kobayashi was standing. If he 5 could just mark it in such a way that we could see it 6 from our vantage point? 7 COMMISSIONER SIDNEY LINDEN: Do you want 8 to show him where that last marking was again with a -- 9 yes. 10 Can you see it now, Mr. Myrka? 11 MR. WALTER MYRKA: Thank you. 12 13 CONTINUED BY MR. KEVIN SCULLION: 14 Q: I was about to explain that it 15 appeared to be at Matheson Road and Army Camp Road? 16 A: Correct. 17 Q: Is that accurate? 18 A: That -- that appears accurate -- 19 Q: All right. That's where you tried -- 20 A: -- to my recollection. 21 Q: That's where you went and tried to 22 make the second service? 23 A: Yes. 24 Q: You waited there a short period of 25 time?
2321 A: Yes. 2 Q: And you were met with ATV's? 3 A: Correct. 4 Q: All right. How long did that entire 5 incident take? 6 A: Five (5) or ten (10) minutes, five 7 (5) minutes. Yes, it was a short period of time. 8 Q: It was -- it was a short period of 9 time? 10 A: Yes, that's right, it wasn't long. 11 Q: You were with Vince George? 12 A: Correct. 13 Q: He was able to identify who was 14 driving the vehicles? 15 A: That is correct. 16 Q: But they wouldn't come close enough 17 for you to physically give them the notice? 18 A: That is correct. 19 Q: Where was the ERT team at this point 20 in time? 21 A: They were in the area but I -- I have 22 no idea where they were, yes. 23 Q: Did they ever tell you that they were 24 going to arrest any of the occupiers -- 25 A: I never heard that.
2331 Q: -- if they could? 2 A: I never heard that. 3 Q: Didn't tell you that? 4 A: No. 5 Q: All right. So you're there for a 6 couple of minutes -- 7 A: Yes. 8 Q: -- then you walked back to your cars 9 and -- 10 A: Yes. 11 Q: -- you return to Forest? 12 A: That is correct, yes. 13 Q: Forest is about a ten (10) to fifteen 14 (15) minute drive away? 15 A: Well, a little longer than that I 16 would suspect. 17 Q: Say twenty (20) minutes? 18 A: Twenty (20) -- twenty (20) minutes 19 to a half an hour, it depends on how fast you're driving. 20 Q: Did you stop along the way? 21 A: Not to my knowledge, my recollection. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MR. KEVIN SCULLION:
2341 Q: I'm having some assistance here. 2 What I have from the MNR chronology was a 3 time frame of returning back to the Forest OPP at or 4 around 1:30 a.m.? 5 A: That is correct, yes. 6 Q: All right. 7 A: I believe it was around in there 8 someplace, yes. 9 Q: All right. 10 MR. KEVIN SCULLION: And Ms. Vella was 11 assisting me by pointing me to two (2) entries in the 12 scribe notes at Tab 131, Mr. Commissioner. 13 14 (BRIEF PAUSE) 15 16 MR. KEVIN SCULLION: Sorry, that's not of 17 assistance. 18 19 CONTINUED BY MR. KEVIN SCULLION: 20 Q: So I have a -- a time frame from 21 11:30 where you're making the second service and arriving 22 back in Forest at 1:30? 23 A: Yes. 24 Q: Is there a period of time where 25 you're waiting for the officers to return to join you to
2351 go back to Forest? 2 A: I don't recall. 3 Q: It's possible, you just don't recall? 4 A: Perhaps it's possible, but I just 5 don't recall. 6 Q: Is it possible that they were in the 7 Park that time and you just don't recall? 8 A: I believe anything's possible. I 9 just didn't know -- I didn't know where they were. Let's 10 put it that way. 11 Q: All right. 12 A: Yeah. 13 Q: There's a period of time when you had 14 no idea where they were? 15 A: That's correct. 16 Q: And that was after the second service 17 -- attempted service? 18 A: I don't recollect. 19 20 (BRIEF PAUSE) 21 22 Q: At that point in time, you tried to 23 make your service, written, verbal or otherwise? 24 A: At that -- 25 Q: Correct?
2361 A: At that point in time? 2 Q: Yes. 3 A: At -- after we had left the second 4 time? 5 Q: Yes. 6 A: Did we attempt to try to make service 7 again, is that what you're saying? 8 Q: No, I've said you tried to make your 9 service -- 10 A: Yes, we attempted to make our service 11 when -- from my perspective, twice. 12 Q: It was unsuccessful because nobody 13 would take service from you? 14 A: That is correct. 15 Q: All right. I keep coming back to the 16 MNR official position. 17 A: Yes. 18 Q: You seem to have done everything that 19 was asked of you by MNR -- 20 A: Hmm hmm. 21 Q: -- from the -- from the viewpoint of 22 the official -- 23 A: Yes. 24 Q: -- position. 25 A: Yes.
2371 Q: Yet you go back to the Forest OPP -- 2 A: Yes. 3 Q: And you stay for two (2) more days? 4 A: Yes. 5 Q: Without getting any sleep -- 6 A: Yes. 7 Q: -- and you're right in the middle of 8 the OPP operation. 9 A: Yes. 10 Q: You're relating back OPP operational 11 details to the MNR crew including Peter Sturdy? 12 A: Yes. 13 Q: On what's going on, on the ground? 14 A: Yes. 15 Q: I suggest to you that, as opposed to 16 leaving this as civil disobedience -- 17 A: Yes. 18 Q: -- you were very interested in 19 getting your Park back? 20 A: Yes. 21 Q: And you wanted to be there when the 22 OPP moved in to get your Park back? 23 A: Not necessarily myself, no. 24 Q: Those are all my questions, Mr. 25 Commissioner.
2381 COMMISSIONER SIDNEY LINDEN: Okay. Thank 2 you, Mr. Scullion. I think we'll take a break now. 3 We've been going on for an hour and fifteen (15) minutes. 4 THE REGISTRAR: This Inquiry will recess 5 for fifteen (15) minutes. 6 7 --- Upon recessing at 2:32 p.m. 8 --- Upon resuming at 2:48 p.m. 9 10 THE REGISTRAR: This Inquiry is now 11 resumed. Please be seated. 12 COMMISSIONER SIDNEY LINDEN: Good 13 afternoon, Mr. Henderson. 14 MR. WILLIAM HENDERSON: Commissioner, 15 thank you for the opportunity but I have no questions for 16 Mr. Kobayashi. 17 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 18 Horner...? 19 MR. MATTHEW HORNER: Mr. Commissioner, my 20 colleagues before me have covered the areas that I had 21 wanted to cover on behalf of the Chiefs of Ontario. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much. That brings us to Mr. Roy. 24 Is your estimate still accurate, 25 reasonably accurate?
2391 MR. JULIAN ROY: I'm going to be -- I'm 2 going to be less time. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 MR. JULIAN ROY: Ms. Esmonde has covered 5 better than I did -- than I could have some of the areas. 6 But there -- there's some further areas that I want to 7 explore. 8 COMMISSIONER SIDNEY LINDEN: Thank you, 9 Mr. Roy. 10 MR. JULIAN ROY: There isn't going to be 11 any fireworks, I can tell you that, Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Oh that's 13 good news. That's good news. I'm a little disappointed. 14 I'm a little disappointed. 15 MS. SUSAN VELLA: Could say that's yet to 16 be determined. 17 18 CROSS-EXAMINATION BY MR. JULIAN ROY: 19 Q: Good afternoon, Mr. Kobayashi. 20 A: Good afternoon. 21 Q: My name is Julian Roy and I'm -- I'm 22 one of the counsel for Aboriginal Legal Services Toronto. 23 A: Hmm hmm. 24 Q: I just have a few questions for you 25 to follow up on some of the questions My Friends had.
2401 In -- in the first area that I wanted to 2 cover with you is your discussion with Chief 3 Superintendent Coles about information flow. 4 A: Yes. 5 Q: I want to follow up on some of the 6 matters that -- that Ms. Vella raised with you a couple 7 of days ago on that issue, okay? 8 A: Yes. 9 Q: As I understood your evidence, you -- 10 before you had that discussion with Chief Superintendent 11 Coles, you didn't really appreciate that there was an 12 issue concerning what information should be passed up 13 your chain of command versus some information that you 14 should keep to yourself? 15 A: That is correct. 16 Q: And Inspector Carson didn't raise 17 that issue with you? 18 A: He did not. 19 Q: And nobody within the MNR hierarchy 20 raised that issue with you prior? 21 A: No they did not. 22 Q: And you very candidly told this 23 Inquiry that that was one of the lessons that you learned 24 from this whole incident. 25 A: That is correct.
2411 Q: Now did -- in terms of your 2 conversation with Chief Superintendent Coles, did he go 3 into any detail with you to explain to you how you were 4 going to determine in the future what information should 5 go up and what information you should filter out from an 6 OPP perspective? 7 A: Not that I recollect. 8 Q: So after discussing the matter with 9 Chief Superintendent Coles, you were not going to be in 10 any better position in deciding what to filter out were 11 you? 12 A: In reality, no. 13 Q: Now I want to followup on -- on the 14 lesson learned and how far it got within your 15 organization. And I want to do that by looking at your - 16 - these documents related to two (2) briefings that 17 happened subsequent to the Ipperwash incident. 18 A: Yes. 19 Q: And the first one is at Tab 210, if 20 you could turn that up please? 21 A: Yes. 22 Q: And if you go to the second to the 23 last page of Tab 210. 24 MS. SUSAN VELLA: Just for the record 25 that's Exhibit P-894.
2421 MR. JULIAN ROY: I thank My Friend for 2 that. 3 THE WITNESS: Yes. 4 5 CONTINUED BY MR. JULIAN ROY: 6 Q: You told us that the third bullet -- 7 bullet point under issues where it says 'Briefing 8 process'. 9 A: Yes. 10 Q: That what was being discussed or what 11 was being referred to by briefing it -- briefing process 12 was something related to that discussion you had with 13 Chief -- Chief Inspector Coles; is that correct? 14 A: That would be a fair assessment, yes. 15 Q: Okay. So we can take from the 16 reference in this briefing process to the reference in 17 this debriefing document to the briefing process. 18 We can take from that that you raised 19 this issue that Chief Superintendent Coles did with your 20 superiors; is that correct? 21 A: That's correct. 22 Q: And you would have given them some 23 detail in terms of what Chief Superintendent Coles told 24 you, correct? 25 A: That is correct.
2431 Q: And you would have been clear with 2 your superiors that the OPP was concerned about what 3 information was getting up through the MNR chain of 4 command and what -- in terms of information that might -- 5 from their perspective shouldn't have got up through the 6 chain of command, correct? 7 A: That is correct. 8 Q: And do you recall any -- any response 9 from your superiors or anybody else at the meeting 10 concerning you raising that issue? 11 A: I don't recollect. 12 Q: Now, if you could turn to Tab 214? 13 A: Yes. 14 Q: And that's the second -- the second 15 briefing or debriefing that happens after the Ipperwash 16 incident, is that correct? 17 A: That -- that's correct, yes. 18 Q: The first one from Tab 210 is 19 sometime in January 1996 and then the second one is 20 February 1996, correct? 21 A: Yes. 22 Q: All right. Now, unfortunately this 23 isn't numbered. If you could go to the fifth page in Tab 24 214? 25 MR. JULIAN ROY: And this, for the
2441 record, Mr. Commissioner, P-895. 2 THE WITNESS: Yes. 3 4 CONTINUED BY MR. JULIAN ROY: 5 Q: And again under -- under heading 6 number 6? 7 A: Yes? 8 Q: Roles and responsibilities of MNR 9 Parks at Ipperwash, Peter Sturdy and Les Kobayashi, do you 10 see that? 11 A: Correct. 12 Q: And I take it from the -- from the 13 reference to you and -- and Peter Sturdy that this was the 14 portion of the meeting where you made sort of a 15 presentation to the meeting? 16 A: I don't believe I made the 17 presentation, I believe it was Peter that actually made 18 the presentation. 19 Q: And you were present while he did 20 this? 21 A: I was present. 22 Q: And you assisted Mr. Sturdy in terms 23 of deciding what you were going to be presenting at the 24 meeting? 25 A: I believe so, yes; that -- that would
2451 be correct. 2 Q: And if you look under the fourth point 3 under -- under number 6? 4 A: Yes. 5 Q: The reference says: 6 "Attended briefings representing MNR. 7 Exchanged information internally. 8 Shared MNR position with OPP." 9 Do you see that? 10 A: Yes. 11 Q: And what's being referred there in 12 terms of your recollection of this debriefing session is 13 you're referring to this issue about your -- your presence 14 at the briefings given by the OPP at the command centre? 15 A: That is correct. 16 Q: And then there's a reference to, 17 "exchanged information internally." Do you see that? 18 A: Yes. 19 Q: And what you mean by that is that's 20 the reference to the information being shared up the chain 21 of command within MNR? 22 A: That is correct. 23 Q: And then the last reference there: 24 "Shared MNR position with OPP." 25 Do you see that?
2461 A: Do whatever I could, yes. 2 Q: Yes. 3 A: Whatever I could. 4 Q: So you're -- you're referring to this 5 -- this issue about information flow, information that's 6 coming from the police, correct? 7 A: That is correct. 8 Q: And then if you look under the next 9 point? 10 A: Yes. 11 Q: It says: 12 "Worked well until the shooting?" 13 A: Yes. 14 Q: And what you -- when you say, "worked 15 --" -- when it's -- the reference to "worked well," it's 16 in reference to the -- to the process that we've just 17 discussed under the previous point? 18 A: That is probably correct, yes. 19 Q: And just generally when I look at this 20 document and I look at that heading under number 6 I don't 21 see that criticism that Chief Superintendent Coles had 22 reflected in that debriefing session? 23 A: That is probably correct, yes. 24 Q: Do you have a recollection at that 25 second briefing session that Chief Superintendent Coles'
2471 concern was -- was raised or discussed? 2 A: I don't recollect. 3 Q: Now, you continued to work as a Park 4 Superintendent for the next three (3) years, correct? 5 A: That is correct, yes. 6 Q: And in terms of what you expected 7 there -- there was a concern about a -- a potential 8 occupation of the Park, the Pinery Park, was that right? 9 A: That's correct, yes. 10 Q: And was it your expectation that you 11 might perform the same sort of role that you did in 12 Ipperwash if Pinery Park ever got occupied? 13 A: A similar role, yes. 14 Q: In the three (3) years after the 15 Ipperwash Incident did you get any -- any direction from 16 any of your superiors as to what information -- whether 17 you should -- you should perform any sort of filtering 18 function with the information that you would be getting 19 from the OPP at an incident such as this? 20 A: I don't recollect, but I don't believe 21 so. 22 Q: So in other words there was no 23 training about what to do about Chief Superintendent 24 Coles' suggestion? 25 A: That is correct.
2481 Q: And there was no memo or document that 2 you were aware of? 3 A: Not that I'm aware of. 4 5 (BRIEF PAUSE) 6 7 Q: And it was your understanding that -- 8 that an MNR liaison person would continue to attend at the 9 OPP command centre in an incident such as this? 10 A: That is correct. 11 Q: So even though there was no sort of 12 direction or training you were still going to be present, 13 correct? 14 A: That is correct. 15 Q: In your experience, do you think it 16 would be -- assuming Chief Superintendent Coles's concern 17 is a valid one, do you think a person -- just giving us 18 your perspective on it, would -- would it be helpful for 19 somebody in your position to have that kind of direction 20 from the MNR? 21 A: I would suggest that it would, yes. A 22 clear definition of what those responsibilities and how to 23 do the job, yes. 24 Q: Yeah. So part of that direction would 25 be on this information flow issue, giving you guidance as
2491 to what should go up and what should stay within the 2 command centre, correct? 3 A: I would -- I would assume yes, yes. 4 Q: But your last answer suggested that 5 you -- you would have appreciated some -- some more -- 6 some broader direction as to what your role was at the 7 command centre? 8 A: Broader and more explicit, yes. 9 Q: Okay. Can you -- can you elaborate on 10 that at all, in terms of the time -- types of things that 11 you think you need direction on? 12 A: I would say just clarification on -- 13 on what should go up and what should stay in the command 14 post. You know, in the briefings what was sensitive, what 15 wasn't sensitive, what was intelligence and what wasn't 16 intelligence and so forth, in general terms. 17 Q: Did you get any -- any training or -- 18 or direction on occupations -- First Nations occupation 19 and protests in what -- what your role as a Park 20 Superintendent might be in that context? 21 A: No. 22 Q: And you're not an expert on First 23 Nations issues, are you? 24 A: I certainly am not. 25 Q: No.
2501 A: No. 2 Q: And most of the people who'd be doing 3 your job would not have any particular expertise in First 4 Nations issues, correct? 5 A: That is correct and that is why we had 6 a native liaison officer that would participate in this 7 type of activity. 8 Q: Sure, but there's a lot of 9 responsibility in a situation like this -- 10 A: Tremendous. 11 Q: -- that falls on -- on a Parks 12 superintendent? 13 A: Tremendous, yes. 14 Q: So, given that, do you think it would 15 be valuable to have specific or more specific training on 16 how an MNR person in that situation might deal with a 17 First Nation occupation and protest? 18 A: Most certainly, yes. 19 Q: Thank you. 20 21 (BRIEF PAUSE) 22 23 Q: I have to ask you about the -- the 24 racist items and the -- in the -- 25 A: Certainly.
2511 Q: -- Meeting Centre. I know it's an 2 uncomfortable subject. I can appreciate that. 3 A: It is, very much so. 4 Q: As I understood your evidence, it was 5 Mr. Matheson that was delegated the job of looking into 6 the concerns that Stan Cloud raised with you, correct? 7 A: That is correct. 8 Q: And am I right in saying that he was 9 the logical choice because he was the person who was the - 10 - the supervisor of the Meeting Centre? 11 A: That is correct. 12 Q: And was there anything about the 13 circumstances that might have suggested to you at the time 14 that he might not be the person to do that job? 15 A: Not at that time; perhaps later, yes. 16 Q: Okay, so later -- 17 A: With hindsight. 18 Q: Later -- 19 A: In hindsight. 20 Q: I beg your pardon? 21 A: In hindsight, yes. 22 Q: Okay. 23 A: In later -- 24 Q: And in hind -- so is it fair to say in 25 hindsight you now realize that he's probably the wrong
2521 person to have done that investigation? 2 A: Yes. 3 Q: And why is that? 4 A: Because he was living at the staff 5 house at the time and his family was there as well. He 6 was under a great deal of stress. He knew all of the 7 individuals that worked there, yes. 8 Q: All right. I'm going to suggest later 9 on that there's perhaps some other reasons why he might 10 have -- 11 A: Perhaps. 12 Q: -- been the wrong -- wrong choice. 13 And you can agree or disagree with me. 14 A: Okay. 15 Q: But let me start by saying this. In 16 terms of what you had assigned him to do, he was going to 17 be the one who was going to be responsible for identifying 18 the MNR employees who were involved, correct? 19 A: For whatever role they played, yes. 20 Q: Yes. And that -- those individuals, 21 it might go beyond the actual create -- person who created 22 the cartoons, correct? 23 A: Yes. 24 Q: So he was going to be the one to 25 figure out who -- who needs to be identified for potential
2531 discipline, correct? 2 A: Yes, along with Sergeant Adkin. 3 Q: Yeah. And you were also going to be 4 relying on Mr. Matheson to make an evaluation of the 5 seriousness of any misconduct, if he found misconduct, 6 correct? 7 A: That is correct. 8 Q: And you were also going to be relying 9 on him as a person to give you advice as to what -- what 10 the appropriate discipline would be in the circumstances, 11 correct? 12 A: Yes. 13 Q: Now, you've already told Ms. Esmonde 14 or suggested to Ms. Esmonde, this Meeting Centre at the 15 Pinery was a pretty busy place during the Ipperwash 16 occupation and immediately after? 17 A: That is correct. 18 Q: And it was busy because you were sort 19 of revolving teams of people through for food, correct? 20 A: That's correct and they were also 21 making meals for a hundred and fifty (150) to two hundred 22 (200) people. 23 Q: And the hundred and fifty (150) to two 24 hundred (200) people would include several teams of OPP 25 officers, correct?
2541 A: That is correct, yes. 2 Q: But it would also include a lot of MNR 3 employees, correct? 4 A: Correct, hmm hmm. 5 Q: And many of them would -- would have 6 been Stan Cloud's work -- colleagues at work, correct? 7 A: That is correct. 8 Q: And part of Mr. Matheson's job of 9 supervising that centre is that he has to be physically 10 present at some times to supervise, correct? 11 A: That is correct. 12 Q: And did it occur to you -- well let me 13 ask you this first. 14 If you would have seen items such as you've 15 heard described on a bulletin board in the Meeting Centre, 16 you would have done something about it, correct? 17 A: That -- that is correct, yes. 18 Q: You wouldn't have just walked on by 19 and said I'm not a First Nations person. It's not my 20 problem, right? That's not something you would do? 21 A: Yes. No, no. Normally no. No, 22 that's right. 23 Q: No. And that's -- that's -- I take 24 from your evidence that you're not the kind of person 25 generally in your personal life who would stand for
2551 something like that-- 2 A: That is correct. 3 Q: -- but as a manager also there are -- 4 there are additional responsibilities, correct? 5 A: Most certainly, yes. 6 Q: Did it concern you or did it occur to 7 you first of all, that there would have been many, many 8 other MNR employees who would have seen these items that 9 we're discussing and not raise the issue with anybody? 10 A: That would have concerned me at the 11 time, yes. 12 Q: And it would have bothered you, 13 correct? 14 A: I would have felt it would be very 15 important that we deal with it immediately and so forth 16 because of the urgency of other people seeing it, yes. 17 Q: But you've told us that you felt that 18 the environment that you worked in was an environment that 19 didn't really tolerate discrimination, correct? 20 A: That is correct. 21 Q: And it would have bothered you that -- 22 that a number of people, MNR employees would have seen 23 this and not done anything about it because that would go 24 against your belief about a lack of discrimination, 25 correct?
2561 A: That's fair enough to say, yes. 2 Q: So whatever orientation program you 3 had in place that you were telling Ms. Esmonde about it, 4 it didn't prevent numerous MNR employees potentially 5 seeing this material and doing nothing about it, correct? 6 A: That is correct, yes. 7 Q: Did you make any changes to the 8 orientation program after this? 9 A: Not to my knowledge. 10 Q: It gets even worse when we consider 11 that Mr. Matheson may have seen this material and done 12 nothing about it, correct? 13 A: Yes. 14 Q: And remember when I told you I was 15 going to be suggesting some other reasons. I'm -- I'm 16 there now, all right? 17 A: Okay. 18 Q: Because if -- if you're relying on Mr. 19 Matheson to identify people who were implicated in these 20 items, he'd really have to be identifying himself, 21 correct? 22 A: If he saw them, yes. 23 Q: Yeah. And -- and it's apparent from 24 the circumstances that he would have seen these materials, 25 is it not?
2571 A: I would assume so, yes. 2 COMMISSIONER SIDNEY LINDEN: Excuse me. 3 Mr. Roy, do we know how long the materials were up on the 4 bulletin board before the complaint was made? 5 MR. JULIAN ROY: I don't. 6 COMMISSIONER SIDNEY LINDEN: I just 7 wondered if that exists anywhere. 8 MR. JULIAN ROY: I don't. And you'll 9 appreciate, Mr. Commissioner, that I'm litigating with one 10 arm tied behind my back in terms of access to materials 11 that -- that we don't yet have that you've made a ruling 12 on. But -- so I'm -- I'm a little bit in the dark. 13 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 14 Esmonde, do you have some information? 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: I'm not sure 19 if these materials are in the same category. They might 20 be but I just wondered if any -- in any of the documents 21 there's any indication. 22 MR. JULIAN ROY: I haven't seen such. 23 COMMISSIONER SIDNEY LINDEN: All right. 24 MR. JULIAN ROY: But there are numerous 25 documents and I can't -- I can't stand here and tell you
2581 I've looked at every possible document and excluded that 2 possibility. 3 COMMISSIONER SIDNEY LINDEN: Okay. That's 4 fine. I'll be interested in knowing how long the -- 5 MR. JULIAN ROY: If I can assist you with 6 that at some further time through evidence I will direct 7 my mind to -- to doing that, Mr. Commissioner. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 10 CONTINUED BY MR. JULIAN ROY: 11 Q: Assuming that -- that Mr. Matheson -- 12 well first of all, did you ask Mr. Matheson if he'd seen 13 the materials before Mr. Cloud raised his concerns? 14 A: I -- I did not. Not when I asked him 15 to look into the matter. 16 Q: Assuming that -- that he would have 17 had access to these materials and would have seen them, it 18 would be inappropriate to appoint as an investigator a 19 person whose conduct ought to be investigated, correct? 20 A: I -- I -- yes, that's correct. 21 Q: And in hindsight that's another reason 22 why he would be the wrong person to appoint as an 23 investigator? 24 A: That -- that is correct. 25 Q: And the training, I -- I noticed it on
2591 your resume that you had discrimination and harassment 2 training -- 3 A: Right. 4 Q: -- through the MNR -- 5 A: Yes. 6 Q: -- prior to this correct? 7 A: That is correct. 8 Q: And nothing about the training you 9 received told you that -- that it would be inappropriate 10 to appoint Mr. Matheson in these circumstances, correct? 11 A: Not in those particular circumstances, 12 that's right. 13 Q: You were also relying on Mr. Matheson 14 to tell you -- you've already told me how serious the 15 incident was after he'd done his investigation, correct? 16 A: Yes, yes. 17 Q: And at Exhibit 801 which Ms. Esmonde 18 took you to if that could be put in front of the Witness, 19 please, Exhibit 801? It may already be there. 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER SIDNEY LINDEN: I know you 24 want to explore other areas of this, but you're not going 25 to explore the same areas as Ms. Esmonde did, is that what
2601 your plan is? 2 MR. JULIAN ROY: Well, it's on -- it's on 3 -- on the quality of MNR training that would -- in terms 4 of the -- the process that would be followed and I think 5 that's a little -- I think Ms. Esmonde explored the facts, 6 but I want to explore -- take it one (1) step further -- 7 COMMISSIONER SIDNEY LINDEN: Sure. 8 MR. JULIAN ROY: -- and there has to be a 9 bit of a jumping off point to what's already been 10 elicited. I -- I'm very close to being finished though, 11 Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 14 CONTINUED BY MR. JULIAN ROY: 15 Q: Do you have that in front of you, sir? 16 A: Yes, I do. 17 Q: And the part that Ms. Esmonde took you 18 to about -- about there being no discriminatory intent and 19 it was -- it was a joke for the OPP? 20 A: Yes. 21 Q: That doesn't sound like something you 22 would say in terms of evaluating material like this does 23 it? 24 A: Not normally. 25 Q: No. So we can take it from that that
2611 that's something you're transmitting from -- from Mr. 2 Matheson, correct? 3 A: That is correct. 4 Q: And that characterization of the 5 material that Mr. Matheson delivered to you would be 6 consistent with him having seen the material and done 7 nothing about it, correct? 8 A: That is correct. 9 Q: Yes? 10 A: Yes. 11 Q: So that's another reason why he'd be 12 the wrong person to -- to do this investigation, correct? 13 A: Correct. 14 Q: Now, you've already told me that Mr. 15 Matheson was -- was also the guy that was going to be 16 giving you advice on the appropriate discipline to take -- 17 A: Correct. 18 Q: -- in -- in response to this? 19 A: Correct. 20 Q: And you told -- you told Ms. Esmonde 21 that one (1) of the reasons why formal discipline or more 22 -- harsher discipline wasn't imposed in this case was 23 because there was a concern about inflaming tensions? 24 A: That is correct. 25 Q: And can you explain that, please?
2621 A: It's -- it's kind of difficult to 2 explain really, but I -- I think you have to understand 3 that tensions were extremely high. People had been 4 displaced from their homes and living in a small confined 5 area with provincial police officers that were coming and 6 going and always under alert. 7 So, you can imagine that tensions were 8 extremely high and the -- the kitchen staff and so forth 9 coming off and going on shift. 10 You know it was a very, very -- it was a 11 hub in the Park at that particular point in time. That 12 was a real hub and I -- I think concerns for -- for safety 13 were being expressed at that time because Pinery Park, 14 when you go in the main entrance of the park that you are 15 confined in -- in a -- in the -- in the park then. 16 There's only one (1) way in and one (1) way out and the 17 concerns were brought to me in respect to that type of a 18 situation as well -- 19 Q: Sure. 20 A: -- over the course of time. 21 Q: But the -- 22 A: So -- 23 Q: Are you finished your answer? 24 A: Pardon me? What was the question 25 again, I guess I'm rambling on.
2631 Q: I -- I'd asked you to -- to explain 2 what -- you weren't rambling on, but I'd asked you to 3 explain what you meant by a concern about inflaming 4 tensions. 5 A: About inflaming the situation? 6 Q: Yes. 7 A: So, if -- if we indeed took 8 disciplinary action with the person that -- for instance 9 relieving them of their duties that there would be certain 10 -- a certain contingent of people that would feel that 11 wouldn't be appropriate under those circumstances and so 12 you had the one (1) side and then you had the 13 discriminatory side of it. 14 You know it -- it was -- it was a judgment 15 call on my part, I would say, to -- well, to me it was a 16 part of a -- part of the -- the situation had been 17 resolved and solved. It wasn't going to occur again as 18 far as I was concerned, or the staff were concerned. 19 I'm not sure disciplinary action by letting 20 somebody go would have necessarily been beneficial at the 21 time. 22 Q: I'm not suggesting that somebody ought 23 to be fired over this, frankly. 24 A: Yes. 25 Q: You would understand that part of the
2641 role of -- 2 A: That's correct. 3 Q: -- discipline is to educate not only 4 the person that -- that's guilty of -- directly of the -- 5 A: Yes. 6 Q: -- misconduct, but it would also 7 educate -- 8 A: Correct. 9 Q: -- the rest of the workplace about 10 what's tolerated and what's not tolerated? 11 A: That's correct, and I believe from 12 there we have -- if you look at the meeting centre as a -- 13 as a hub, you look at the visitors centre as a hub, if you 14 look at the maintenance building as a hub and you look at 15 the administration office as a hub of employees -- 16 Q: Yes. 17 A: -- all those supervisors were to be 18 contact -- contacted by Don to then relay on any messages 19 and also look at their own work centres to ensure there 20 was nothing of a discriminatory nature in them. 21 So I'm sure the message was relayed. 22 Q: Okay. 23 A: And -- sorry. 24 Q: In terms of -- you talked about 25 tensions around the time of the occupation and the
2651 shooting -- 2 A: Well, that -- 3 Q: -- you were reporting to -- you were 4 reporting to -- to Peter Sturdy at Exhibit P-801 in 5 January, 1996, correct? 6 A: Correct. 7 Q: Now, the immediate tensions would have 8 subsided to some -- 9 A: No, they were -- 10 Q: -- extent, would they not? 11 A: -- still there. The tensions were -- 12 were still certainly there because there was a still a hub 13 and we were still file searching. Everybody was running 14 around frantic trying to find documents and so forth. 15 So, you know, it was -- it was still pretty 16 stressful situation. Most things just don't go over 17 overnight because the situation is, you know, it's -- it's 18 long term. 19 And, yes, I would suggest that there was 20 still great amount -- great deal of tension. 21 Q: All right, I'm going to keep moving. 22 A: Yes. 23 Q: To another aspect of -- of Exhibit P- 24 801. 25 A: Okay.
2661 Q: And it deals with this issue about 2 staff and OPP being concerned about Stan Cloud passing 3 information to the occupiers? 4 A: Yes. 5 Q: Do you see that that's reflected in 6 this document? If you want to take a second to read it. 7 A: Yeah. 8 9 (BRIEF PAUSE) 10 11 A: Correct. 12 Q: Now, were you ever told of a shred of 13 evidence to support the notion that Stan Cloud was passing 14 information to the occupiers of the Park? 15 A: Never. 16 Q: And so am I right in terms of what 17 your understanding of the situation was, Stan Cloud came 18 under suspicion by your staff and the OPP because -- not 19 because of anything he did, but because of who he was, 20 correct? 21 A: I believe so, yes. 22 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 23 Myrka...? 24 MR. WALTER MYRKA: The passage refers to a 25 concern of the OPP, not of MNR staff.
2671 MR. JULIAN ROY: Well, I can deal with 2 that, because the document does -- 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 MR. JULIAN ROY: -- refer to the OPP and 5 MNR staff. 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MR. JULIAN ROY: 10 Q: If you could -- if you could -- I can 11 deal with that through evidence, Mr. Commissioner, and 12 have the witness confirm that. 13 COMMISSIONER SIDNEY LINDEN: Well, all 14 right. 15 MR. JULIAN ROY: Rather than answering the 16 objection. 17 COMMISSIONER SIDNEY LINDEN: All right, if 18 it deals with MNR staff -- 19 MR. JULIAN ROY: Sure, if you can go -- 20 COMMISSIONER SIDNEY LINDEN: -- then -- 21 MR. JULIAN ROY: -- two-thirds (2/3) of 22 the way down the document. 23 THE WITNESS: Yes. 24 25 CONTINUED BY MR. JULIAN ROY:
2681 Q: Do you see where it says, "when the 2 threat of occupation..."? 3 A: Yes. 4 Q: "When the threat of occupation of 5 Pinery was an issue, a number of staff 6 and OPP officers had concerns of Stan 7 passing information to the radical 8 Stoney Pointers." 9 Do you see that? 10 A: Yes. 11 Q: You drew a distinction -- this is your 12 e-mail, correct? 13 A: Yes, it is. 14 Q: You drew a distinction between staff 15 and OPP, correct? 16 A: Yes. 17 Q: And the distinction you were drawing 18 was that it was not only OPP officers, but it was staff at 19 MNR; correct? 20 A: That is correct, yes. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 23 CONTINUED BY MR. JULIAN ROY: 24 Q: So, getting back to my question. In 25 terms of what you understood, Mr. Cloud was under
2691 suspicion by your staff and MNR as a result of who he was 2 not because of anything he'd done, correct? 3 A: I'm uncertain if our staff were -- I 4 believe the -- the concern was passed on to our staff 5 through the OPP and then our staff became somewhat 6 concerned. 7 I would assume that's -- like they were 8 talking back and forth quite often, our staff and the OPP. 9 So I'm sure that's what is was. Personally I'm not -- not 10 -- I'm not -- no one has been identified to me that -- not 11 of my park wardens were identified to me as being a person 12 that was personally concerned. 13 I guess that -- that would be -- 14 Q: Okay. And what did you do to look 15 into -- to whether or not your staff were -- had expressed 16 these concerns about Mr. Cloud? 17 A: I believe -- I believe I spoke with 18 Stan at some point in respect to that and I also spoke 19 with some of the employees that the park wardens that he 20 was working with at the time and suggesting that Inspector 21 Carson and myself both felt that Stan was doing his job 22 and there was nothing suspicious going on. 23 Q: Okay. Well, that cleared Stan Cloud 24 of any misconduct. 25 A: Yes.
2701 Q: But what did you do to investigate the 2 people who had expressed this concern and to your 3 knowledge without any basis in fact? 4 A: Well they -- they -- I suppose I 5 didn't do anything, if indeed, that's the question. 6 Q: And in hindsight you probably should 7 have, correct? 8 A: Well, there's no doubt. There was a 9 lot going on at that particular time, you know. 10 Q: Yeah. No, I -- I understand that. I 11 understand that part. This is a bit of a hindsight 12 process and -- 13 A: Yes that's right. 14 Q: -- we're trying to make it better the 15 next time. All right? 16 A: Hmm hmm. For sure. 17 Q: So that's why -- why I'm asking these 18 questions. I'm not trying to grill you, all right? 19 A: I appreciate that. 20 Q: Thank you. Mr. -- Mr. Commissioner, 21 those are my questions. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much, Mr. Roy. 24 Mr. Myrka, you've got some question too? 25 MR. WALTER MYRKA: I have a few questions,
2711 Commissioner. 2 3 (BRIEF PAUSE) 4 5 COMMISSIONER SIDNEY LINDEN: Mr. Myrka, 6 just before you start, how long do you estimate you might 7 be? 8 MR. WALTER MYRKA: I'm going to try and 9 keep it less than half an hour. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 12 CROSS-EXAMINATION BY MR. WALTER MYRKA: 13 Q: Mr. Kobayashi, if I could begin by 14 asking you to turn to the -- the map of Ipperwash Park 15 behind you, Exhibit P-915. 16 A: Yes. 17 Q: Now earlier with a pointer you 18 indicated two (2) sites where controversies concerning 19 possible aerial sites had emerged to your recollection. 20 And one of them was the old bathhouse. 21 Are you able to point that out once more, 22 where that bathhouse was located? 23 A: I believe it was in this area here. 24 Q: And do you know, I appreciate that 25 that diagram was -- or that photograph was taken in 2003.
2721 Does it nevertheless assist you in telling us where 2 various features of the Park were located back in 1995, 3 such as the bathhouse? 4 A: Yes. 5 Q: Okay. And the bathhouse, I wonder if 6 you could mark that so that we have it right on the 7 exhibit? And I believe that should be marked as X4. 8 THE REGISTRAR: X5. 9 MR. WALTER MYRKA: X5. Okay. 10 11 CONTINUED BY MR. WALTER MYRKA: 12 Q: And can you tell us what was located 13 on that property in 1995, the last time you were in the 14 Park? 15 A: I believe it was just a use area, day 16 use area. 17 Q: So would it be forest, cut grass or do 18 you recall? 19 A: Pretty -- pretty much cut grass. 20 Q: Okay. And you pointed out earlier 21 another location which I recall was close to what you 22 earlier described as the main gate area near Dufus Creek. 23 A: There was actually three (3) 24 locations. In 1993, Maynard George -- 25 Q: All right. I'm going to take you to
2731 that one in a moment. But if you could take me to the 2 location close to Dufus Creek as you understand it. 3 A: This is Dufus Creek here and the area 4 was -- I understood it was in this area here -- around in 5 through here. 6 Q: And could you mark that as X6? 7 8 (BRIEF PAUSE) 9 10 Q: And in 1995 what was that general area 11 used for within the Park? 12 A: That area was really not a use area, 13 it was mainly -- there was a grass corridor, then a few 14 trees and so forth. 15 Q: Now, I want you to go to the third 16 location. 17 A: Yes? 18 Q: Now, I recall in your evidence that 19 you first learned of a -- the burial site assertion from 20 Maynard T. George when you were presented with a document 21 on or about May 19, 1993, is that right? 22 A: Yes. 23 Q: And that was the document which was 24 titled in part, "Co-Management Agreement?" 25 A: That is correct.
2741 Q: Okay. And that document made 2 references to Mr. George's view that there was a burial 3 site somewhere within Ipperwash Park? 4 A: That is correct. 5 Q: And as part of that he indicated that 6 he and others wished an opportunity to come into the Park 7 and search for burial grounds, is that fair? 8 A: That's fair. 9 Q: Okay. Now, other than the document, 10 do I understand that in May of 1993, you also spoke to Mr. 11 George while you were both together within the Park? 12 A: That is correct. 13 Q: And did you speak to him about the -- 14 his assertion that there was a burial site within the 15 Park? 16 A: That is correct. 17 Q: And was he able to tell you where it 18 was? 19 A: Yes, he told me it was under the 20 maintenance building. 21 Q: All right. And could you point that 22 out? Is that the same as "X1"? 23 A: That is correct. 24 Q: Okay. Could you also point out on the 25 map of the Park, if you could, where were the campgrounds
2751 located? 2 A: The campgrounds were in this -- this 3 area here and along through here. 4 Q: And if I ask you what was the day use 5 area, is that different from the campgrounds? 6 A: Yes, it is. 7 Q: All right. And can you point that out 8 to us? 9 A: It would be this area here and a 10 portion of this area here and Stoney Point which is 11 located here. We had some tables and so forth there as 12 well. 13 Q: And do I understand that when one 14 speaks of a day user that's someone who comes into the 15 Park, pays a daily fee and uses for example the beach 16 facilities and so on, but is not allowed entrance into the 17 overnight camping area? 18 A: That is correct. 19 Q: And that's something that's -- that 20 you typically find at all provincial parks in Ontario? 21 A: That is correct. 22 Q: Okay. Now, the -- the three possible 23 sites that you've indicated including the one pointed out 24 to you by Mr. George, they're not located in any of the 25 day use areas?
2761 A: That is correct. 2 Q: And they're not in the campgrounds? 3 A: That is correct. 4 Q: All right. Now, you recall the -- the 5 correspondence from 1937? 6 A: Correct. 7 Q: And you did have an opportunity to see 8 those letters? 9 A: That is correct. 10 Q: Okay. And you recall that the request 11 that is reflected in that correspondence was to erect a 12 fence around a burial site, a burial ground? 13 A: That is correct. 14 Q: Okay. And my question, Mr. Kobayashi, 15 is this: Based on your experience as Park superintendent 16 if one were to erect a fence or find another method of 17 appropriately memorializing any of the sites that you've 18 marked on the map for us, can one do that and still 19 continue with people in the day use areas? 20 A: Yes. 21 Q: Is there any reason that would prevent 22 that to your knowledge? 23 A: No. 24 Q: Okay. What about the use of the 25 campground?
2771 A: The campground itself? 2 Q: Yes. 3 A: Yes, you could still use the 4 campground. 5 Q: Okay. In other words there may be 6 methods of satisfying community concerns about burial 7 sites and continuing to operate large portions of 8 Ipperwash Provincial Park; is that fair? 9 A: That is -- that is fair. 10 Q: Okay. And the Park itself if I 11 remember your evidence is about one hundred and nine (109) 12 acres? 13 A: Yes, one-o-nine (109). 14 Q: Okay. Now, at the time of the -- the 15 management plan for the Park, you told us in your evidence 16 about the Kettle Point Band Council concerns respecting 17 certain areas of Stoney Point. 18 Now, could you just, once more, point out 19 on that -- on Exhibit 915 the area of Stoney Point? Okay. 20 Is Stoney Point part of the day use area? 21 A: There's a portion of the day use area, 22 yes. 23 Q: Okay. And during the time that you 24 were superintendent, did -- did the Council or anyone from 25 Kettle Point voice any concerns with you about the day use
2781 area being in some way inconsistent with their view of 2 what should be done at Stoney Point? 3 4 (BRIEF PAUSE) 5 6 A: Could you rephrase that a bit? 7 Q: All right, let me try again. The 8 ceremonies -- 9 A: Yes. 10 Q: -- that -- that were carrying on from 11 time to time at Stoney Point by members of the Kettle 12 Point First Nation -- 13 A: Yes. 14 Q: -- at any time were you told that the 15 other uses of the Park or other users in any way 16 interfered with the conduct of those ceremonies? 17 A: No. 18 Q: In your experience, is it fair to say 19 that it was therefore possible for these two (2) kinds of 20 uses, that is the campers and recreation as opposed to the 21 solemn ceremonies going on at Stoney Point, is it your 22 view that those could coincide without coming into 23 conflict? 24 A: Yes. 25 Q: Okay.
2791 (BRIEF PAUSE) 2 3 Q: Now, when Mr. George told you about 4 the burial site as he understood it, he told you that it 5 was underneath the maintenance building? 6 A: That is correct. 7 Q: Now, do you recall if he said it was 8 underneath as opposed to close by? 9 A: He said it was -- he pointed to the 10 maintenance building and he said it was underneath the 11 maintenance building. 12 Q: Okay. 13 14 (BRIEF PAUSE) 15 16 Q: Now, the work that had gone into the 17 park management plan, during that whole process the issue 18 of a possible burial site had never come up? 19 A: No, it had not. 20 Q: Okay. And you were aware at the time, 21 I take it, of the Peter Hamalainen report that was 22 prepared in or around 1972? 23 A: That's correct. 24 Q: Okay. 25
2801 (BRIEF PAUSE) 2 3 Q: Now, when Mr. George told you about 4 what he believed was under the maintenance building, I 5 take it you made inquiries with some of your staff? 6 A: That is correct. 7 Q: Okay. And do you recall who it was 8 that you spoke to? 9 A: I spoke to assistant superintendent 10 Matheson who had been there for some time, and of course 11 lived there as well. I also spoke with Ron Williamson and 12 Glen McIntyre who were long term Park wardens and Park 13 technicians that worked at the Park. 14 Q: And they expressed the view to you 15 that a burial site under the maintenance shed was 16 unlikely, is that fair? 17 A: That is correct. 18 Q: Okay, and do I understand they did 19 that in part because of the practical consideration that 20 underneath the maintenance shed there was very little 21 soil? 22 A: That is correct. 23 Q: The building itself was on limestone 24 bedrock? 25 A: That is correct.
2811 Q: All right. 2 3 (BRIEF PAUSE) 4 5 Q: In 1993, the Kettle Point Band, can 6 you help me to appreciate how many individuals and 7 families that would have been? 8 A: I can't, I really don't know the 9 numbers of -- of families on Kettle Point, it was mainly 10 Stoney Point. 11 Q: You indicated in your evidence that in 12 the summer when the Park was busy it was like a small town 13 or a village? 14 A: That is correct. 15 Q: How many people? If -- if you filled 16 up the Park, campers and long weekend with day users, how 17 many people might that be? 18 A: Anywhere from fifteen hundred (1,500) 19 to twenty-five hundred (2,500) people I would assume at 20 Ipperwash not counting the day use Crown beach areas. 21 Q: Okay. And I know -- I appreciate that 22 you don't know the number of people at Kettle Point, but 23 can you give me a sense of the order of magnitude, what 24 the population might have been? Was it in the hundreds, 25 the thousands?
2821 A: A thousand (1,000) perhaps. 2 Q: Okay. Now, in 1993 when Maynard 3 George told you about the burial ground assertion did 4 anyone else repeat that assertion to you or was it just 5 Maynard? 6 A: It was just Maynard. 7 8 (BRIEF PAUSE) 9 10 Q: Just so I'm clear on your evidence 11 between that day in May of 1993 and the occupation of the 12 Park on September 4th, did any person tell you or make the 13 allegation that there was a burial site within Ipperwash 14 Park? 15 A: No. 16 Q: Okay. So is it fair to say from your 17 perspective the first time the allegation came up again 18 was in the evening of September 4th or the next day? 19 A: That is correct. 20 21 (BRIEF PAUSE) 22 23 Q: Now, when that came up the second time 24 in September of 1995, did you discuss the allegation with 25 Don Matheson?
2831 A: Yes. 2 Q: Do you recall what he had to say about 3 it? 4 A: He didn't believe there was a burial 5 site in the Park. 6 Q: And I take it you took some comfort 7 from that because he was a person who had grown up in the 8 area; in fact he'd grown up within the Park? 9 A: That is correct. 10 Q: Now, in your evidence you told us 11 about a number of efforts that were undertaken after 12 September 6th to try and determine what evidence existed 13 of a possible burial ground or site within the Park? 14 A: Yes. 15 Q: Would you agree with the suggestion 16 that even today no one from your Ministry has been able to 17 conclusively determine one (1) way or the other whether 18 there's a burial site or a burial ground within Ipperwash 19 Park? 20 MS. SUSAN VELLA: I'm sorry to interrupt, 21 but perhaps you should just qualify that as 1998, which is 22 when I believe Mr. Kobayashi retired? 23 THE WITNESS: Yes. 24 MR. WALTER MYRKA: Yes, Thank you. 25
2841 CONTINUED BY MR. WALTER MYRKA: 2 Q: If we use the time of your retirement 3 by -- 4 A: Yes. 5 Q: -- that time would you then agree with 6 me that no on within the Ministry had been able to 7 determine one (1) way or the other whether indeed there is 8 a burial site within the Park? 9 A: The only indication was the -- the -- 10 the photographs that we had from Ms. Dulmage. 11 Q: Okay. 12 A: Other than that, no. 13 Q: Okay. 14 15 (BRIEF PAUSE) 16 17 Q: Now, do I understand correctly that 18 the last time you were within Ipperwash Park was at the 19 time of the winterization on December 3, 1995? 20 A: That is correct. 21 Q: Okay. 22 23 (BRIEF PAUSE) 24 25 Q: Now, the occupiers have been in the
2851 Park since September of 1995, are you aware of any efforts 2 on their part or anyone else to search the Park for burial 3 remains or evidence of a burial ground from 1995? 4 A: The only recollection that I have is 5 that Joanne MacDonald from the Federal Government was 6 doing some research into burial grounds and whether she 7 went into the Park I -- I don't know. 8 Q: Okay. And can you tell us because you 9 retired in 1998, do you recall what the status was of her 10 efforts at that time? 11 A: At that time in 1998 she hadn't found 12 anything out. 13 Q: Okay. 14 15 (BRIEF PAUSE) 16 17 Q: When you were physically within the 18 Park on December 3rd, 1995, do you recall what you saw 19 around you? And what I'm wondering about in particular is 20 the state of the facilities and any damage done to the 21 buildings? 22 A: I saw that the -- the Park store 23 concession was burnt to the ground, the control office; 24 the main gate control office was burnt as well. I guess 25 other than dumpsters and cars and gates closed and so
2861 forth that -- that was it -- and there was a lot of picnic 2 tables missing as well. 3 Q: The Park store concession, help me in 4 understanding what kind of a structure we're talking 5 about. 6 A: We had a canteen facility and a 7 facility that -- adjoining it that -- they sold groceries 8 and camp supplies, ice. They actually made ice in that 9 building at one (1) point in time in the basement. I 10 believe there's some old ice making equipment and so 11 forth. It was a fairly large facility. 12 Q: When you say it was "fairly large" can 13 you give us some indication perhaps by reference to 14 Kimball Hall around you? 15 A: Perhaps -- no, sorry, a half the size. 16 Q: And the structure, I understand it 17 housed a store? 18 A: That's correct. 19 Q: Okay. And also a restaurant? 20 A: That's correct. 21 Q: Okay. Do you remember the size of the 22 restaurant? 23 A: It was more a take out facility, a 24 large counter with cooking -- kitchen facilities behind 25 it.
2871 Q: And was this a one (1) floor building 2 -- two (2) floor? 3 A: It was two (2) stories, a basement and 4 upper -- ground level -- 5 Q: Okay. 6 A: -- as well. 7 Q: Okay. And when you saw this building 8 on December 3rd it was completely gutted, burnt to the 9 ground? 10 A: Yes, it was. 11 Q: Okay. Do you recall ever looking at 12 or obtaining estimates as to what the damage to that one 13 (1) building would have been? 14 A: I recall the figure seven hundred and 15 fifty thousand dollars ($750,000) that we had put into 16 that facility and that would be the renovations and 17 equipment and so forth. 18 Q: When did you do the renovations? 19 A: They were ongoing right from the first 20 day practically that the store was there. Every year they 21 would add a little bit to improve it and so forth, but how 22 long the store was there in general terms I -- I don't 23 know, but we had -- in my tenure there we had put a 24 significant amount of money into it as well to upgrade it. 25 Q: Would it be fair to describe the
2881 building as a new structure, an old structure? 2 A: An old structure with several 3 additions to it. 4 Q: All right. 5 A: Yes. 6 Q: And your recollection was a figure of 7 the order of magnitude of seven hundred and fifty thousand 8 dollars ($750,000) damage? 9 A: That's what I recollect, yes. 10 Q: And did I understand your evidence 11 earlier that at some point someone from the Stoney Point 12 Group indicated that the Province would be compensated for 13 that? 14 A: That would have been Bruce Elijah I 15 believe at one (1) of our -- one (1) of the meetings that 16 I was at to itemize the damage and costs and so forth. 17 18 (BRIEF PAUSE) 19 20 Q: And did Mr. Elijah indicate to you 21 where that money was going to come from? 22 MS. SUSAN VELLA: I'm sorry, this was -- 23 COMMISSIONER SIDNEY LINDEN: It came out 24 of the evidence. 25 MS. SUSAN VELLA: This was very carefully
2891 covered. It was in -- 2 COMMISSIONER SIDNEY LINDEN: It came out 3 in evidence. 4 MS. SUSAN VELLA: -- the e-mail -- 5 MR. WALTER MYRKA: All right. 6 COMMISSIONER SIDNEY LINDEN: From the 7 Federal Government. 8 MS. SUSAN VELLA: -- report. 9 MR. WALTER MYRKA: All right, I'll move 10 on. 11 12 CONTINUED BY MR. WALTER MYRKA: 13 Q: Now, I want to take you to the -- the 14 night of September 6th. After you learned of the -- the 15 shooting incidents just outside the Park, you came back to 16 the Forest OPP detachment? 17 A: Yes, I did. 18 Q: All right. Now, you were there for 19 the balance of the night? 20 A: Yes, I was. 21 Q: And if I recalled your evidence, you 22 indicated that you had a son at home? 23 A: That's correct. 24 Q: And was your son alone that evening? 25 A: Yes, he was.
2901 Q: And you remarked at one point that he 2 slept with a baseball bat that evening? 3 A: That's correct. 4 Q: Okay, why did he do that? 5 A: He had had -- we had had a couple of 6 calls that night where the -- you'd pick it up and there'd 7 be nobody there and it'd click down. 8 And he felt that, you know, he was just a 9 little worried because of the situation at Ipperwash that 10 it could impact on us as a family. 11 Q: Did your son or did you connect what 12 had happened at Ipperwash to the calls that you received 13 at home? 14 A: We hadn't had those calls before, so. 15 They were very out of the ordinary at -- at our place, so 16 I would suspect, yes, if that's what it was connected to. 17 Q: Okay. 18 19 (BRIEF PAUSE) 20 21 Q: Thank you, Mr. Commissioner, those are 22 my questions. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much, Mr. Myrka. 25 Ms. Vella...?
2911 (BRIEF PAUSE) 2 3 RE-DIRECT EXAMINATION BY MS. SUSAN VELLA: 4 Q: Just a couple of questions, 5 Commissioner, Mr. Kobayashi. 6 When you were being cross-examined by Mr. 7 Scullion, he suggested to you that you had not had any 8 sleep on either the 5th or the 6th and I think that 9 there's a little confusion now in the evidentiary record. 10 Do you recall whether or not in the 11 afternoon of the 6th you went to a hotel for a couple of 12 hours? 13 A: I went to the Forest Golf and Country 14 Club for a few hours, yes, and had a sleep. 15 Q: And what was the purpose of that? 16 A: It was to have a sleep. 17 Q: Okay. 18 A: A rest. 19 20 (BRIEF PAUSE) 21 22 Q: If you look at Tab 132... 23 24 (BRIEF PAUSE) 25
2921 A: Yes. 2 Q: You're there quicker than I am. It's 3 Exhibit P-879 and Mr. Scullion was asking you some 4 questions, I believe, about this document as well and he 5 asked you whom you were assuming responsibility from, and 6 then suggested to you that, in fact, you weren't assuming 7 this responsibility, because it was now a policing 8 operation. 9 Is that -- do you recall that? 10 A: That's correct, yes. 11 Q: Well, in fact, were you not assuming 12 responsibility from your assistant park superintendent, 13 Don Matheson? 14 A: That's correct, yes. 15 Q: And at the time, notwithstanding the 16 fact that the OPP were present, as I understand it, there 17 were still park users in attendance at the Park when you 18 arrived and it had not been officially closed; is that 19 right? 20 A: That's correct. 21 Q: So is it fair to say that you still 22 had a responsibility towards those Park users and the 23 operations of the Park notwithstanding the fact that the 24 police were also there, exercising authority? 25 A: That's correct.
2931 Q: Now, I just have a question also 2 arising from Mr. Scullion's cross-examination with respect 3 to the ramifications of -- of having the Park officially 4 closed. 5 Is it your evidence that you could not 6 evict a Park user until you closed the Park as a general 7 proposition? 8 A: That's correct. 9 Q: So if someone entered the Park and 10 didn't pay admission, your officers had no ability to 11 evict the -- the user without first closing the Park? 12 A: That's correct. 13 Q: Is that correct? 14 A: Pardon me? Maybe say that question 15 again. I think I'm tired. 16 Q: If someone -- if someone entered the 17 Park, -- 18 A: Yes. 19 Q: -- and refused to pay admission -- 20 A: Yes. 21 Q: -- did your enforcement officers or 22 your wardens have the ability to evict that person without 23 first closing the Park? 24 A: If the Park was open, they had the 25 ability to evict them, yes.
2941 Q: All right. 2 A: Because they -- they hadn't paid the 3 appropriate fees. 4 Q: In other words, closure of the Park is 5 not a prerequisite to declaring someone a trespasser? 6 A: That's correct. 7 Q: Thank you. Now when Mr. Roy was 8 asking you questions concerning the -- the cartoons and 9 the way that your -- that Mr. Matheson handled that 10 situation, you indicated that -- that you took into 11 account the degree of anxiety or tension that you felt 12 your employees were still under at the -- at the Pinery 13 Park. 14 A: That's correct. 15 Q: Can you be more specific as to how you 16 took that anxiety into account? In other words, was that 17 relevant to -- to your determination as to whether or not 18 the conduct in question was discriminatory? 19 A: I -- I felt that if -- if indeed I 20 took 21 -- we took action in the -- in a way that would be 22 portrayed as -- I've got to be careful with my words here 23 and thoughts. We thought that -- or I guess -- we 24 thought that the OPP, the Park staff, the non -- people 25 that felt that this was discriminatory would be then be
2951 discriminated aga -- discriminated against even further 2 because of this being brought to the attention and 3 somebody losing their job. You know what I mean? 4 Q: I think -- is what you're saying that 5 you considered the anxiety or tension as a -- as a 6 mitigating factor in terms of determining the discipline 7 that was appropriate? 8 A: That's correct, yes. 9 Q: But not in terms of assessing whether 10 or not -- 11 A: Oh, no. 12 Q: -- this was discriminatory? 13 A: No, that's right exactly. 14 Q: Because it was discriminatory content? 15 A: Exactly. Exactly. 16 Q: Regardless of intent. 17 A: Exactly. 18 Q: Now just one last matter. I'd like to 19 perhaps have you mark a few more things onto the -- the 20 map if you will, just to clear out the record. 21 You've indicated in your evidence to Mr. 22 Myrka that there was a day use area, and I'm wondering if 23 you would just -- can you -- can you draw a circle with 24 your red pen around the approximate location of the day 25 use area please?
2961 All right. And you have in fact drawn two 2 (2) circles to the north side of the Park adjacent to the 3 beach and overlapping, to a degree, onto Stoney Point? 4 A: That's correct. 5 Q: Would you also mark an X -- are we up 6 to X6 or seven (7)? 7 THE REGISTRAR: Seven (7). 8 9 CONTINUED BY MS. SUSAN VELLA: 10 Q: 7X the Stoney Point cultural site. 11 Next, would you be able to draw a line on 12 the east side of the beach marking appro -- the 13 approximate boundary as between the army camp beach and 14 the Ipperwash Park beach and taking note of where Matheson 15 Drive is. 16 All right and it's a solid line that you've 17 marked? 18 A: Yes. 19 Q: Would you mark the sandy parking lot 20 with '8X' please? All right. Now I just wasn't clear 21 whether you had marked the -- the site that was identified 22 by Ms. Dulmage as Site Number 1 being the north side of 23 Dufus Creek east of the new bridge on the meandering curve 24 of the creek. 25 Did you mark that?
2971 A: I've got -- I have X6. 2 Q: Okay, thank you. And finally are you 3 able to mark the location that the toll booth was set up 4 in July of 1995. I saw one description by you as being on 5 the beach immediately east of the Park and Matheson Drive. 6 And if -- if you don't know then -- then 7 tell me. 8 A: I don't know. 9 Q: You didn't see it? All right. 10 A: I recall -- I recall seeing it but not 11 the exact location. I just can't recall the exact 12 location. 13 Q: All right. And in another document 14 you described the location as the junction of County Road 15 10 and Matheson Drive. Is that a different location? 16 A: That's correct. 17 Q: Where is that? Would you please mark, 18 "9X" for that? All right. And that's the -- that was the 19 second -- that was where they moved the toll booth to from 20 -- from the -- the beach location on Matheson Drive? 21 A: That's correct. 22 Q: Okay. Thank you, Mr. Kobayashi. I 23 wish to thank you very much for your time here with us at 24 the Inquiry. 25 THE WITNESS: Thank you.
2981 COMMISSIONER SIDNEY LINDEN: Thank you. 2 Thank you very much for coming and sharing your evidence 3 with us, Mr. Kobayashi. 4 5 (WITNESS STANDS DOWN) 6 7 MS. SUSAN VELLA: Commissioner, I wonder 8 if we might have a five (5) minute recess so that we can 9 prepare for the next witness? 10 COMMISSIONER SIDNEY LINDEN: Fair enough. 11 We'll have a short recess and we'll call another witness. 12 THE REGISTRAR: This Inquiry will recess 13 for five (5) minutes. 14 15 --- Upon recessing at 3:48 p.m. 16 --- Upon resuming at 4:03 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed, please be seated. 20 MR. DONALD WORME: Good afternoon, 21 Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Good 23 afternoon, Mr. Worme. Good day. Good day, sir. 24 MR. DONALD WORME: The Commission calls as 25 its next witness Ron Vrancart. Mr. Vrancart will swear on
2991 the Bible. 2 THE REGISTRAR: Very good, Mr. Vrancart. 3 Please take the Bible in your right hand, please sir? 4 5 RONALD JOHN VRANCART, Sworn 6 7 EXAMINATION-IN-CHIEF BY MR. DONALD WORME: 8 Q: Mr. Vrancart, I note from your resume, 9 a copy of which has been distributed electronically to the 10 -- to the parties as well as copies that are made 11 available here, that you have had a fairly long history 12 with the Ministry of Natural Resources and the various 13 predecessor ministries thereof? 14 A: Yes, I have. In total, I worked for 15 the Ontario Public Service for thirty (30) years, twenty- 16 three (23) of those years were with the Ministry of 17 Natural Resources. 18 Q: And you started in 1969 the Parks 19 branch, with the Ministry of Lands and Forests as it was 20 then known? 21 A: That's correct. 22 Q: And I understand that you came 23 directly to the Ministry after graduate school? 24 A: That's right. 25 Q: And you went to graduate school where,
3001 sir, and studied what? 2 A: I studied town planning at the 3 University of London. 4 Q: And you took up the position as -- as 5 you've just agreed, with the Parks branch as a park 6 planner? 7 A: That's correct. 8 Q: What essentially was that, if you 9 could just give us a nutshell explanation of that? 10 A: At graduate school, I had to write a 11 thesis and I wrote a thesis that revolved around the 12 development of a mathematical model for the prediction of 13 attendance at Ontario's Provincial Parks. 14 And so I was hired for that expertise, but 15 in addition to that, I was given some geographic 16 responsibility for Parks in Southwestern Ontario and to 17 provide Parks system planning advice on those Parks. 18 Q: And between 1969, sir, and 1995, you 19 held a number of senior management positions with the 20 Ministry of Natural Resources and other ministries. 21 Could you just tell us a bit about that as 22 well? 23 A: Sure. I'd have to refer to my -- my 24 resume to remind myself. 25 Q: Yes, please do.
3011 (BRIEF PAUSE) 2 3 A: Between 1969 and 1975 I held a number 4 of positions with -- with the Ministry of Natural 5 Resources. Some of those were in main office, some of 6 them were in the field and all of those positions were in 7 either the outdoor recreation program that was responsible 8 for, in part, the management of the Provincial Park system 9 in the Province as well as Fish and Wildlife resources or 10 in the Lands and Waters program which is largely involved 11 in the management of the Crown lands of this province. 12 In -- in 1975 I became the Director of the 13 Park Planning Branch; held that position until 1978. In 14 1978 I became the Director of the Parks and Recreational 15 Areas Branch. Held that position until 1981. 16 In 1981 I moved on to become the Director 17 of the Niagra Escarpment Commission, remained there until 18 1984. 19 Then I had a number of positions, first of 20 all as a co-ordinator of the Cabinet Committee on 21 Legislation in the Cabinet office. In late '98 -- 1984 22 and early 1985. I was also, at that time, the Director of 23 the Resources Development Branch in the Management Board 24 of Cabinet. 25 And then I took on the position of Chief
3021 Administrative Officer at the Ministry of Northern 2 Development and Mines between December of '85 and August 3 of '88. 4 Subsequently, I returned to the Ministry of 5 Natural Resources in the fall of 1988 as the Executive 6 Director of the Lands and Waters group and in 1990 I 7 became the Assistant Deputy Minister for the Information 8 Resources Division of the Ministry of Natural Resources 9 until June of 1994. 10 In April of '94 until February of '95, I 11 also acted in the position of Assistant Deputy Minister 12 Forest Industry Action Group. 13 And from July '94 until February of '95 I 14 acted as the Assistant Deputy Minister for the Operations 15 Division of the Ministry. 16 And then in February of 1995 until my 17 retirement in June of 2000, I sat in the position of 18 Deputy Minister, Ontario Ministry of Natural Resources. 19 Q: And since your retirement, sir, I 20 understand that you've been involved in the private 21 sector? 22 A: Since my retirement I have been 23 working as a consultant both independently and also with a 24 -- with a company. During the first year of my retirement 25 it was pretty much a cooling off period as required by the
3031 regulations governing post retirement for senior civil 2 servants. 3 In the year following my retirement and 4 starting in June of 2001 I took on an assignment for the 5 Ontario Government where I chaired something known as the 6 Oak Ridges Moraine Advisory Panel which delivered a plan 7 for the government on how to protect the Oak Ridges 8 Moraine. 9 And when I -- when I completed that in the 10 following year, I joined a company known as GPC Public 11 Affairs where I currently am still employed. 12 Q: Thank you. 13 MR. DONALD WORME: Commissioner, I'd ask 14 that the document be marked as the next exhibit please. 15 THE REGISTRAR: P-916, Your Honour. 16 COMMISSIONER SIDNEY LINDEN: P-916. 17 18 --- EXHIBIT NO. P-916: Resume of Ronald John 19 Vrancart. 20 21 CONTINUED BY MR. DONALD WORME: 22 Q: Sir, if I can just take you back, Mr. 23 Vrancart to your appointment in February of 1995. 24 You were appointed then as the Deputy 25 Minister for the Ministry of Natural Resources?
3041 A: That's correct. 2 Q: And I take it that -- that would have 3 been under the NDP Government of then Premier Bob Rae? 4 A: Yes, I was appointed by Premier Bob 5 Rae. 6 Q: In 19 -- from 1975 until 1978 as the 7 Director of the Parks and Planning Branch and the Parks 8 and Outdoors Recreation Division of the Ministry of Lands 9 and Forests, there was a number of inventories that were 10 undertaken as I understand, sir, and I wonder if you can 11 tell us about that? 12 A: Just set a bit of context for this in 13 -- in the process of developing a plan and these have been 14 known variously over the years as Park Master Plans and 15 are currently known as Park Management Plans. 16 One of the first steps that's involved in 17 that process is gathering information, factual information 18 about the area that is to become, or currently is, a 19 Provincial Park. And -- and in that process, a number of 20 inventories back in the '70's were undertaken. 21 These were life science inventories which 22 were essentially inventories about the biological and 23 botanical aspects of the Provincial Park. Their science 24 inventories which looked at the geological and 25 geomorphological background to the Park and historical and
3051 cultural inventories that looked at the imprint of man on 2 the landscape. 3 And the process of it was properly followed 4 and it was normally was required that these inventories be 5 undertaken before a policy document was developed which is 6 known as a Park Master Plan or a Park Management Plan. 7 And that Plan in affect was to become the decision making 8 framework for the management of that Provincial Park. 9 Q: And do you know, sir, whether or not 10 one -- that is an inventory whether a life science, earth 11 science or historical and cultural inventory was done with 12 respect to the Ipperwash Park? 13 A: I don't know specifically but I would 14 assume that if a Park Management Plan was prepared for the 15 Park, that those inventories were undertaken. 16 Q: And I take it you don't have any 17 specific knowledge as to whether or not in each instance, 18 one of these might have been done? 19 A: No. There -- there were hundreds of 20 these things that were done and I didn't specifically read 21 or edit or review everyone of them. 22 Q: And nor would it be your 23 responsibility to undertake these inventories. I take it 24 that there would be staff within the Ministry that would 25 be charged with the taking of these inventories?
3061 A: Yes. 2 Q: And specifically insofar as looking at 3 the imprint of man I think as you quite accurately put it 4 I take it that the aboriginal imprint would be found on -- 5 on occasion? 6 A: On -- on -- on many occasions. The 7 aboriginal association with the landscape that was 8 becoming the Park was -- was identified and in fact in the 9 1970's there were a number of archeologists on the staff 10 of the Ministry of Natural Resources that undertook these 11 inventories in a very professional manner. 12 Q: Okay. And in the 1970's when you had 13 that sort of expertise within the Ministry did that come 14 to a conclusion at some point? 15 A: Yes, it did. At one (1) point there 16 was a -- a reorganization of the Ontario government and 17 the creation of a new ministry of -- I believe it was 18 Tourism and Recreation and at that time the historical 19 Parks Branch of the Ministry of Natural Resources was 20 removed from the -- the Ministry of Natural Resources and 21 moved to the Ministry of Tourism and Recreation. 22 And -- and when that happened the 23 capability of the Ministry of Natural Resources to rely 24 upon those archeological resources in the historical 25 branch was then placed in this new Ministry of Tourism and
3071 Recreation. 2 So although the -- the capability was still 3 there within the Ontario government, it wasn't there 4 within the Ministry of Natural Resources. 5 Q: Did the Ministry of Natural Resources 6 have access to that kind of expertise should it be 7 required? 8 A: Yes, we did. 9 Q: And in 1995 specifically, sir, was 10 that expertise available to the Ministry of Natural 11 Resources if you can recall? 12 A: By -- by the time 1995 had rolled 13 around that capability within the Ontario government was 14 no longer there. 15 Q: And where would such capability be 16 found if in fact it was to be found? 17 A: If -- in -- in the context of the 18 Ministry of Natural Resources looking for archeological 19 expertise we would contract that assistance out by going 20 to typically universities or colleges and in some cases 21 some of the former archeologists that worked in that 22 historical Parks Branch had set up private companies and 23 we would hire them directly on contract. 24 Q: Thank you. Sir, given your -- your 25 long experience in the government and particularly your
3081 experience as a deputy minister, I wonder if you could 2 talk -- talk a little bit about the role of a deputy 3 minister, what the reporting structure was, the -- the 4 duties, the liaison functions, that sort of thing? 5 A: Well, on a -- on a high level and 6 perhaps I should start by -- by pointing out that deputy 7 ministers are appointed by the Premier and ministers are 8 also appointed by the Premier. 9 Ministers report directly to the Premier; 10 deputy ministers report to the Secretary of Cabinet. The 11 Secretary of Cabinet is a senior deputy minister if you -- 12 if you want to put it that way. 13 My recollection is that during my time 14 there was in the order of twenty-six (26) deputy ministers 15 in the Ontario government that reported to the Secretary 16 of Cabinet. 17 Typically I would say that a deputy 18 minister's role at the highest level could be categorized 19 into three (3) general areas. The first would be 20 providing advice to the government and -- and typically 21 that would be through the Minister. 22 Secondly, would be the role of running the 23 Ministry, administering the department if you wish and in 24 most cases these ministries were large organizations and - 25 - and -- and the third role that I would see a deputy
3091 minister typically playing would be participating in the 2 overall governance of the Ontario Public Service. 3 For example when I was Deputy Minister I 4 was a Commissioner on the Civil Service Commission and I 5 was a member of the Executive Development Committee. 6 Q: I understand that there was a certain 7 liaison function as well? 8 A: There was a -- yes, of course there 9 was a liaison function in the relationship with the 10 Minister. It was -- that relationship was a two-way 11 relationship where the deputy minister would seek advice 12 from the Minister and provide the Minister with 13 information and the Minister would, in turn, convey his 14 priorities to the deputy minister, in terms of how 15 policies and programs of the Ministry are operating or 16 should be operating. 17 Q: And I understand that the -- 18 typically, a minister as well as a deputy minister might 19 also have an assistant? 20 A: Yes, in all cases, both ministers and 21 deputy ministers had and continue to have, as far as I 22 know, executive assistants who would help them in their 23 day to day activities. 24 Q: And what's the interaction between the 25 deputy minister and the minister and minister's assistant?
3101 A: Ministers and deputy ministers are -- 2 are very busy people and -- and -- and there are lots of 3 times when information needs to be conveyed from one to 4 the other but can't be done face to face, so executive 5 assistants are used to carry the messages. 6 Q: In 1995, your -- your assistant was 7 Peter Allen? 8 A: That's right. 9 Q: Would there be any kind of liaison 10 function with respect to either yourself or your assistant 11 insofar as some of the public, that is stakeholders, as 12 they're sometimes referred to? 13 A: Yes, in -- in -- in the process of 14 managing issues or developing policy within the context of 15 the Ontario Government deputy ministers, from time to 16 time, would become involved with -- with stakeholders, 17 would hold meetings with stakeholders. 18 19 (BRIEF PAUSE) 20 21 Q: And in 1995, the minister -- at least 22 in June of 1995, the Minister of Natural Resources was 23 Christopher Hodgson? 24 A: That's right. 25 Q: And his executive assistant was Jeff
3111 Bangs? 2 A: That's correct. 3 Q: And I take it that you would be 4 responsible for reporting and providing information to the 5 -- to Minister Hodgson? 6 A: Yes. 7 Q: In the company of, perhaps, Mr. Bangs 8 on occasion? 9 A: Quite often. Our -- our -- we had a 10 regular pattern, actually. The Minister and I would meet 11 on a weekly basis, same time, in his office for an hour 12 and -- and -- and this was not a formal setting. 13 This was an opportunity for each of us to 14 share with each other whatever was on our minds about 15 whatever the issues of the day were or to try and 16 anticipate, you know, what the next week was going to 17 bring and just to be in constant contact. 18 And typically, my executive assistant and 19 the Minister's executive assistant would attend these 20 meetings, and quite often out of those discussions, there 21 would be action items that -- that -- that would require 22 instructions to be delivered, particularly on my side to 23 staff within the Ministry. 24 And -- and my executive assistant would 25 keep notes of these meetings and particularly would keep a
3121 record of the action items that I had agreed to with the 2 Minister and after the meeting was over we would sit down 3 and determine how those instructions would be conveyed and 4 to whom. 5 Q: You mentioned that your executive 6 assistant would find a way to record the action 7 instructions. 8 Did you engage in that process at all, that 9 is, in -- in making a recording and taking notes? 10 A: As a matter of general practice, I did 11 not. Most of the meetings that I went to there were 12 secretaries to -- at the meetings to record the -- the 13 proceedings. 14 I find it difficult to multitask. I -- I 15 can't be writing and participating and thinking at a 16 meeting all at the same time. 17 Q: I want to talk to you a little bit 18 about the Ipperwash Provincial Park. 19 You were aware of -- of that park growing 20 up? 21 A: Yes. I -- I grew up in London, 22 Ontario and Ipperwash Provincial Park, everybody knew 23 Ipperwash Provincial Park. 24 Q: Did you occasion to visit there? 25 A: I -- I had been there I think a couple
3131 of times with my parents on picnics and to swim at 2 Ipperwash Beach. 3 Q: Beyond -- beyond knowing it as a -- as 4 a place of recreation, as you've just described, and 5 during the course of your tenure with the parks or with 6 the Ministry of Natural Resources and dealing specifically 7 with parks, did you come to -- become better acquainted 8 with the Ipperwash Provincial Park? 9 A: I got to know Ipperwash Provincial 10 Park perhaps a little bit better as a result of my 11 responsibilities in the Ministry of Natural Resources, but 12 I wouldn't say that -- that I became intimately familiar 13 with it. 14 Q: All right. Were you aware, for 15 example, of a claim that was -- or of any claim that was 16 made either to Camp Ipperwash or to Ipperwash Provincial 17 Park? 18 A: I -- I think I was aware, generally, 19 that there was a claim against Camp Ipperwash and -- and I 20 -- and was never aware of a claim against the Provincial 21 Park. 22 Q: Okay. What about the subject of 23 burial sites or sacred grounds? Now that's something that 24 you would have been acquainted with through the historical 25 and cultural inventories that were done?
3141 A: Yes. And -- and -- you know, until 2 Ipperwash became an issue, I was not aware of the -- the 3 allegations of a -- of a burial site in the Park. 4 Q: Okay. Once you became aware of 5 allegations of burial in the Park, do you know whether -- 6 whether you or did you instruct anybody to, perhaps, 7 revisit the cultural or historical inventories to see how 8 that might inform what was happening and the knowledge 9 base? 10 A: I -- I -- I did ask for that 11 information and -- and didn't get a satisfactory answer 12 which indicates to me that -- that there was probably was 13 not. There either was not a cultural inventory that had 14 been done for Ipperwash Provincial Park or that that 15 cultural inventory had not identified an Aboriginal burial 16 site. 17 Q: And with respect to the claim that you 18 were generally aware of with respect to Camp Ipperwash, 19 were you aware that there was, in fact, an occupation that 20 had occurred with respect to Camp Ipperwash? 21 A: Yes. I -- I -- I was aware that -- 22 that the camp had been occupied in the summer of 1993 and 23 that occupiers were still there. 24 Q: Do you know how you came about that? 25 A: I don't know. It was -- it was a
3151 newsworthy item at the time and I would have noted that 2 just in reading the media. 3 Q: Thank you. And during the course of 4 your involvement with the Ministry, you would have had on 5 an ongoing basis I -- I understand some interaction with 6 Aboriginal people or Aboriginal groups? 7 A: Yes. The Ministry of Natural 8 Resources has a long history of working with -- with the 9 Aboriginal peoples of Ontario. 10 Q: How would you describe that 11 relationship? What -- what was it like during your 12 tenure? 13 A: The relationship existed at -- at many 14 levels and the Ministry of Natural Resources, at the local 15 level, has always had a good working relationship with the 16 First Nations in this province. 17 Just by virtue of the type of business that 18 the Ministry of Natural Resources is in, it comes into 19 contact with the First Nations on many issues, whether 20 it's angling or hunting or land claims. And -- and in 21 fact, many First Nations people work for the Ministry of 22 Natural Resources, particularly as seasonal staff working 23 on forest fire management, working in provincial parks, 24 working doing various types of fish and wildlife 25 activities throughout the province.
3161 Q: All right. What about in more senior 2 management positions, are there Aboriginal people involved 3 there as well? 4 A: The -- I'm sorry to say that, you 5 know, at the most senior levels there probably is not 6 adequate participation by First Nations in the Ontario 7 Public Service, in general, and in the Ministry of Natural 8 Resources, in particular. 9 Q: All right. I want to draw your 10 attention to the book of documents in front of you. Under 11 Tab 1 there is a document that is Exhibit P-643 which is-- 12 COMMISSIONER SIDNEY LINDEN: I wonder -- I 13 wonder, Mr. Worme, if this would be a good place to stop. 14 I know that we haven't gotten very far. 15 MR. DONALD WORME: I was just going to 16 touch on this very generally, sir -- 17 COMMISSIONER SIDNEY LINDEN: No, that's 18 fine. 19 MR. DONALD WORME: -- and then I thought 20 that might be a good place, if that's all right. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. DONALD WORME: But certainly I can -- 23 COMMISSIONER SIDNEY LINDEN: That's fine, 24 carry on. 25 MR. DONALD WORME: Thank you,
3171 Commissioner. 2 3 CONTINUED BY MR. DONALD WORME: 4 Q: Under that tab there is a document 5 which is P-643 in these proceedings. It's titled, 6 "Statement of Political Relationship SPR Guidelines 7 Questions and Answers," dated August of 1992 prepared by 8 the Ontario Native Affairs Secretariat and I understand 9 you have at least some familiarity with the document? 10 A: Yes, I do. 11 Q: And what -- what can you tell us about 12 it? 13 A: Well, in general terms, this document 14 was an attempt by the government of the day which was led 15 by Premier Bob Rae to set out a new relationship with the 16 First Nations in -- in -- in the province. It was an 17 attempt to define the term, "inherent right to self- 18 government," and it was also an attempt to set the context 19 for ongoing discussions on what a government-to-government 20 relationship means. 21 I have to admit that in August of 1992, if 22 you look at my CV, at that time in the Ministry of Natural 23 Resources my role was as the Assistant Deputy Minister of 24 the Information Resources Division and my task at that 25 time was to bring the Ministry of Natural Resources into
3181 the twentieth century, when it came to the use of 2 information technology to improve our knowledge base. 3 And because that was such a large task I -- 4 I was almost single-mindedly focussed on -- on my role as 5 the Chief Information Officer of the Ministry and so I -- 6 I was not paying detailed attention to a document like 7 this because it really didn't come into the area where I 8 was expected to perform, but certainly I was aware of it 9 and -- and I knew that the Ministry was adapting to it and 10 that the Ministry was embracing this document and the 11 direction that the government was going. 12 Q: And just lastly before we end, Mr. 13 Vrancart, post June of 1995 did you ever have occasion to 14 see this document again or make reference to it in your 15 work as a deputy? 16 A: I -- after June of 1995 this document 17 never surfaced again in my working life, until now. 18 19 (WITNESS RETIRES) 20 21 MR. DONALD WORME: Thank you, sir. 22 Commissioner, this would be a good place to end for the 23 day. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much. We'll adjourn now and come back at nine
3191 o'clock tomorrow morning. Thank you very much. 2 THE REGISTRAR: This Public Inquiry is 3 adjourned until tomorrow, Thursday, October 27th at 9:00 4 a.m. 5 6 --- Upon adjourning at 4:32 p.m. 7 8 9 10 11 Certified Correct 12 13 14 15 16 ________________________ 17 Carol Geehan 18 19 20 21 22 23 24 25