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 September 13th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) 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 ) 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 ) (np) 19 Erin Tully ) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 JULIE RAMONA JAI, Resumed 6 Continued Cross-Examination by Ms. Anna Perschy 7 7 Cross-Examination by Ms. Andrea Tuck-Jackson 147 8 Cross-Examination by Mr. Murray Klippenstein 158 9 10 11 12 13 14 15 Certificate of Transcript 292 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-706 Document number 1004266. Fax to 4 Yan Lazor from Tim Eggar: Review of 5 the Governments comments/commitments 6 with reference to Aboriginal issues, 7 September 08/'95. 36 8 P-707 Document number 1000663. London Free 9 Press Article, "Park Takeover a 10 Hooligan Act", Sept 06/'95. 77 11 P-708 Document 1012212. Confidential draft: 12 Proposed procedures for Aboriginal 13 emergencies, February 14/'96. 146 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:01 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, everybody. Good morning. 8 Ms. Perschy, you're still on. 9 MS. ANNA PERSCHY: Good morning, 10 Commissioner, good morning, Ms. Jai. 11 COMMISSIONER SIDNEY LINDEN: Good 12 morning. 13 THE WITNESS: Good morning. 14 15 JULIE RAMONA JAI, Resumed; 16 17 CONTINUED CROSS-EXAMINATION BY MS. ANNA PERSCHY: 18 Q: Yesterday we were looking at some of 19 the differences between a blockade on the one hand and an 20 occupation where a group has taken control of land to 21 which it believes it has some rights. 22 Do you recall our discussion yesterday 23 about that? 24 A: Yes. 25 Q: And we talked about how a blockade is
81 done to raise awareness of some other issues. You recall 2 giving that -- that testimony? 3 A: Yes. 4 Q: Now, I take it that you'd agree with 5 me that in the case of such a blockade, the group 6 involved in the blockade must communicate somehow to the 7 Government what its issues are in order to reach its 8 goals; for example, the -- the environmental issue that I 9 was referring to -- 10 A: Yes. 11 Q: -- yesterday? That's not necessarily 12 true where a group takes control of land at once, they 13 don't have to communicate with the Government, because 14 they have the land, right? 15 A: Well, they have physical -- they're 16 physically occupying it. They still wouldn't have legal 17 title to the land. 18 Q: Fair enough, but they have -- they 19 have physical control of the land? 20 A: Yes. 21 Q: And possession is nine-tenths 22 (9/10's) of the law, is -- that's the saying, right? 23 You're aware of that? 24 A: I've heard of that saying, yes. 25 Q: So, in the scenario involving a
91 blockade, the need for a group to communicate with the 2 Government is much greater than in the scenario involving 3 an occupation along the lines that we -- that we've 4 looked at? 5 A: Well, I think communication is 6 important in both circumstances. 7 Q: Oh, no, I appreciate that. But, I'm 8 just saying that from your perception, there may be a 9 difference in terms of the need of the group involved in 10 the blockade, rather than that involved in an occupation? 11 A: I can't really speculate on the 12 thoughts of those occupying land. 13 Q: Fair enough. 14 15 (BRIEF PAUSE) 16 17 Q: You talked yesterday a little bit 18 about the land claim process that was in existence, and 19 so between 1993 and 1995, with respect to any land 20 claims, there was an existing process to address such 21 claims? 22 A: Yes. 23 Q: And as of 1995, many claims had been 24 filed by First Nations people that ONAS had not yet been 25 able to review; is that right?
101 A: Yes, that we had not completed the 2 historical and legal review for many of those claims. 3 Q: Now, hypothetically, in a situation 4 where other First Nation people had filed claims which 5 ONAS had not yet been able to complete the review, with 6 respect to which ONAS had not yet been able to complete a 7 review, if as a result of an occupation of Crown land a 8 government were to offer to negotiate the land dispute, 9 that group of occupiers would be able, therefore, to jump 10 the queue and have their issue addressed in advance of 11 the First Nation people who had filed their claims with 12 the Government. 13 MR. DERRY MILLAR: I don't understand -- 14 COMMISSIONER SIDNEY LINDEN: I certainly 15 didn't understand the question. I'm not sure if the 16 Witness -- 17 MR. DERRY MILLAR: -- and I don't think 18 this Witness can speculate on such a question, even if I 19 did understand it. 20 COMMISSIONER SIDNEY LINDEN: You want 21 to -- 22 MR. DERRY MILLAR: It's pure speculation 23 and it's not -- it doesn't address the issues that we're 24 here to address, in my submission. 25 MS. ANNA PERSCHY: I'll rephrase the
111 question. 2 3 CONTINUED BY MS. ANNA PERSCHY: 4 Q: Ms. Jai, you indicated that, as part 5 of your role as the Chair of the Committee you had -- the 6 Committee dealing with Aboriginal emergencies, you had 7 reviewed some of the briefing materials, you understood 8 the process involved in that Committee and what its role 9 was? 10 A: Yes. 11 Q: And I'm going to suggest to you that 12 one of the principles -- let me back up, one of the 13 principles that we looked at yesterday was the principle 14 that one not engage in substantive negotiations until the 15 direct action had -- had ended; is that right? 16 A: Yes. 17 Q: And I'm going to suggest to you that 18 one of the reasons that -- for that principle is the 19 concern that one not encourage what I'll refer to as 20 queue jumping, and one doesn't want to reward direct 21 action, would you agree with me? 22 A: Yes. 23 Q: And coming back to my hypothetical 24 example, when we talk about queue jumping, I'm going to 25 suggest to you that is what we are referring to and I'll
121 just repeat the example. 2 Where you have a number of people who have 3 filed land claims which ONAS had not yet reviewed, if the 4 Government engages in substantive negotiations with a 5 group of occupiers who occupied land the result of that 6 is that that group of occupiers is effectively able to 7 jump this queue; this queue for dealing with land claims? 8 A: Well, just -- maybe I could just 9 clarify what the procedures of the Emergencies Committee 10 are. We're not allowed to engage in substantive 11 negotiations, but we are allowed to engage in 12 negotiations with the people who are taking the direct 13 action just to guide them to a process that will enable 14 them to resolve -- hopefully resolve the issues that 15 they're protesting about. 16 So, there are negotiations that are 17 permitted under the existing processes for the 18 Emergencies Committee. 19 Q: And you testified to that and with 20 respect to land claim issues, there was in fact an 21 existing process that existed; that's the process that 22 we've looked at. 23 A: Yes. Yes. 24 Q: So, when you're referring to 25 discussions to bring about an end to the occupation which
131 is I think the discussions that you're referring to; is 2 that right? 3 A: Yes. 4 Q: And the distinction between 5 substantive negotiations and these sorts of discussions? 6 A: Yes. 7 Q: It's -- it's to introduce them to a 8 process. 9 A: I mean, for example, in this case, 10 you know, if there had been discussions with the 11 negotiators we would have been able to say, Oh, you're 12 concerned about a burial ground. Well don't worry, we 13 respect burial grounds and there's a process for 14 protecting them under the Cemeteries Act. Let's work 15 together to try and figure out this burial ground is and 16 then we can make sure that some of your concerns are 17 looked after. 18 So, that would be a way in which -- that 19 would be the type of discussion we would have. We 20 wouldn't, you know, be doing the research right then and 21 there to find out whether or where the burial ground was 22 located but we would be able to just talk to them about 23 the fact that there is an existing regime that protects 24 burial grounds. 25 Or if they're concerned with the land
141 claim, we could have explained to them what the process 2 was for filing a land claim. 3 Q: And that -- that's the aspect that I 4 was going to -- to focus on was simply the land claim 5 aspect. The -- the process that we're talking about is 6 this land claim process, correct? 7 A: Well, this is the process you're now 8 asking me about, yes. 9 Q: Well I'm just saying, you're saying 10 that you would invite occupiers to -- to engage in a 11 process and that's with respect to the land claim issue 12 that would be the process -- 13 A: Right. 14 Q: -- that we've been discussing. 15 A: Yes. 16 Q: And one of the reasons for not having 17 substantive negotiations with respect to land claim 18 disputes is this concern that will not be able to jump 19 the queue? 20 A: I can't really agree with that 21 proposition. If we had a discussion -- we would have the 22 discussion with them, let's say it was a land claim and 23 we would say, There is this land claims process and this 24 is how you enter the process. This is how you file a 25 claim.
151 By giving them that information that 2 wouldn't be permitting them to queue jump. That would 3 simply be explaining to them how to get into the system. 4 So, there would be no reason not to have those types of 5 negotiations with people who are occupying land. 6 Q: And I'm simply talking about the 7 reason why you don't enter into substantive negotiations, 8 because if you entered into substantive negotiations, 9 that -- 10 COMMISSIONER SIDNEY LINDEN: One (1) 11 second -- 12 MR. DERRY MILLAR: If they're not allowed 13 to enter into -- 14 COMMISSIONER SIDNEY LINDEN: That's 15 right. 16 MR. DERRY MILLAR: -- substantive. She 17 said that in-chief. She said that a number of times 18 that -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. DERRY MILLAR: -- the Committee's not 21 permitted to enter into substantive negotiations. So, I 22 don't know where this is going. 23 COMMISSIONER SIDNEY LINDEN: Neither do 24 I. 25 MS. ANNA PERSCHY: I'm simply trying to
161 find out from this -- this Witness who was a Chair of 2 this Committee if she understood the rationale as to why 3 one doesn't enter into substantive negotiations. 4 COMMISSIONER SIDNEY LINDEN: Well, I 5 think if you asked her that question, she might answer 6 it. 7 8 CONTINUED BY MS. ANNA PERSCHY: 9 Q: Well, if I phrase it, perhaps more 10 succinctly, that is one of the reasons -- one of the main 11 reasons with respect to land claim disputes at least that 12 you don't enter into substantive negotiations, is it not? 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MS. ANNA PERSCHY: This concern that if 15 you enter into substantive negotiations when -- 16 COMMISSIONER SIDNEY LINDEN: Ms. Perschy? 17 MS. ANNA PERSCHY: -- a group occupies 18 land that would effectively allow them to jump the queue. 19 COMMISSIONER SIDNEY LINDEN: You didn't 20 ask a question. I mean you're entitled to do that in 21 cross-examination, but you're suggesting an answer and I 22 don't think that she's agreeing with you or you've asked 23 the same question two (2) or three (3) times now. 24 MS. ANNA PERSCHY: Well... 25 COMMISSIONER SIDNEY LINDEN: I'm not
171 sure -- 2 MS. ANNA PERSCHY: Why -- why don't we 3 let this -- this -- this Witness answer? 4 COMMISSIONER SIDNEY LINDEN: Well, she 5 has answered. 6 MS. ANNA PERSCHY: Is that one (1) of 7 the rationales? 8 COMMISSIONER SIDNEY LINDEN: She has 9 answered. With all due respect, Ms. Perschy, she has 10 answered. She said it had nothing to do with queue 11 jumping in her view. That was what I heard her say. She 12 said that they would enter into the process. They would 13 be entered into the process. 14 MS. ANNA PERSCHY: That was with respect 15 to discussions. I'm trying to distinguish between -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MS. ANNA PERSCHY: -- discussions on the 18 one (1) hand and substantive negotiations and I was just 19 clarifying -- 20 COMMISSIONER SIDNEY LINDEN: Well, and 21 that's the point. 22 MS. ANNA PERSCHY: -- what I was 23 focussing on. 24 COMMISSIONER SIDNEY LINDEN: She said 25 that they don't get into substantive negotiations --
181 MS. ANNA PERSCHY: And I was simply -- 2 COMMISSIONER SIDNEY LINDEN: -- regarding 3 land claims. 4 MS. ANNA PERSCHY: And I appreciate that 5 and I was simply trying to explore the rationale as to 6 why one doesn't engage in substantive negotiations. 7 COMMISSIONER SIDNEY LINDEN: And I 8 suggested if you ask that question, she might answer it. 9 MS. ANNA PERSCHY: That's my question. 10 THE WITNESS: The question is why do -- 11 does the Committee not enter into substantive 12 negotiations? 13 MS. ANNA PERSCHY: Yes. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: My suggestion is it's because -- one 17 (1) of the concerns is -- 18 A: Well, you just answered that question 19 which is that the -- the reason -- there are many reasons 20 why the Committee doesn't enter into substantive 21 negotiations. We will enter into negotiations to end the 22 immediate emergency. 23 And that's a sort of a short-term 24 negotiation because you're simply negotiating a process 25 that will allow the parties the time to discuss the
191 substantive issues which are often quite complex and time 2 consuming so the whole process of having a -- a truly 3 substantive discussion would be beyond the scope of the 4 Emergencies Committee which is designed as a reactive 5 short-term committee whose goal is to -- to end the 6 immediate crisis. 7 A separate issue, which I guess I -- I 8 gather that you are trying to get at is the whole issue 9 of queue jumping and obviously there's a concern that -- 10 that direct action not result in people jumping ahead of 11 other people who have been waiting for many years to have 12 their claims heard. That is certainly something that the 13 Committee and I would think most governments would want 14 to avoid and that we have been abl e to avoid. 15 That -- having said that, there have been 16 many emergencies where we've been able to have a 17 negotiation to set up the separate process for these 18 discussions of the substantive issues and resolve those 19 issues without it being queue jumping. I mean often 20 those issues are not things that there's a huge queue 21 about anyways. In many cases they're quite simple. 22 And I would suggest that in this case, you 23 know, if we had had the discussion about how to protect 24 burial grounds that that would have been a reasonable 25 thing to do and it would not have been a case of queue
201 jumping. 2 Q: And -- and I'm simply focussing on -- 3 on the land claims dispute aspect of it at this point. 4 5 (BRIEF PAUSE) 6 7 Q: And just again, focussing on that 8 aspect, the -- the land claims dispute aspect and -- and 9 this issue of queue jumping, this concept, this 10 rationale, one (1) of the rationales for -- for not 11 engaging in substantive negotiations, queue jumping would 12 create an unfairness towards other First Nations people 13 who have made an effort to file the claim in the existing 14 process and wait their turn for government to review and 15 address that claim; that's right? 16 A: Well, that wasn't the issue in this 17 case. 18 Q: I'm simply referring again to the -- 19 MR. DERRY MILLAR: But, that's -- that's 20 exactly the point, it's not the issue. This doesn't help 21 anything with respect, Commissioner. 22 COMMISSIONER SIDNEY LINDEN: I -- 23 MR. DERRY MILLAR: It's -- there wasn't a 24 land claim filed. As the Witness said that wasn't the 25 issue here and so why don't we focus on the issue.
211 COMMISSIONER SIDNEY LINDEN: I agree with 2 you, Mr. Millar, could you please try to move on? 3 MS. ANNA PERSCHY: I'm not -- I've only 4 got a couple more questions, but -- 5 COMMISSIONER SIDNEY LINDEN: Well, the 6 questions aren't being helpful so far so I couple more I 7 suspect won't be much more helpful. 8 MS. ANNA PERSCHY: Well... 9 COMMISSIONER SIDNEY LINDEN: If they're 10 in the same line. 11 MS. ANNA PERSCHY: It -- it's simply -- 12 I -- I appreciate that, Commissioner, I'm just trying to 13 explore -- we -- we've looked at some of the procedures 14 for the Aboriginal Emergencies Committee, we've looked at 15 some of the principles -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MS. ANNA PERSCHY: -- that guide that 18 Committee, the goals of that committee. 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MS. ANNA PERSCHY: Now simply drawing 21 out of this particular Witness this issue of rationale 22 regarding the issue of substantive negotiations. And as 23 I said I've only got a couple more questions with respect 24 to that, but I think it's helpful with respect to this 25 Chair --
221 COMMISSIONER SIDNEY LINDEN: Well -- 2 MS. ANNA PERSCHY: -- to at least 3 understand the -- the rationale behind the procedures of 4 that Committee and what they do and what they don't do. 5 COMMISSIONER SIDNEY LINDEN: Well, I 6 think she's answered those questions but if you have some 7 other questions that haven't been asked that are 8 relevant, then by all means ask them. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: If you could turn to the briefing 14 note which is the one dated September 6th, 1995, which is 15 P-498. I believe it's Document 1010501. 16 17 (BRIEF PAUSE) 18 19 A: Was this the briefing note with 20 respect to the emergency procedures for dealing with 21 Aboriginal emergencies? 22 Q: Yes, yes it is. I'm just -- 23 A: Okay. I believe that's at Tab 9 of 24 the binder 25
231 (BRIEF PAUSE) 2 3 Q: At page 4, there are a series of 4 considerations, factors to consider in addressing the 5 seriousness of a confrontation and potential responses. 6 Do you see that? It's at page 4 -- 7 A: This is under, 'considerations'? 8 Q: Yes. 9 A: Yes. 10 MR. DERRY MILLAR: That's in the 11 appendix, I think. 12 MS. ANNA PERSCHY: Yes. 13 MR. DERRY MILLAR: Not the actual -- it's 14 in the appendix. 15 MS. ANNA PERSCHY: I stand corrected. 16 Yes it is. It's page 4 of the appendix. 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: Do you have page 4 of the appendix? 20 A: Yes, I do. 21 Q: I take it that these factors were 22 part of a policy in September of 1995 with respect to -- 23 with respect to the Aboriginal emergencies Committee? 24 A: Yes. 25
241 (BRIEF PAUSE) 2 3 Q: I'm going to turn to another topic. 4 You testified about a few briefings that were given to 5 the new government in 1995, including a couple that were 6 provided to the Premier's office -- 7 A: Yes. 8 Q: -- right? And as I understand it, 9 you gave a number of briefings in this timeframe, the 10 early -- the early days of the new government, to 11 Minister Harnick and his staff, Minister Hodgson and his 12 staff; is that right? 13 A: Yes. 14 Q: Did you give briefings to other 15 Ministries as well during this timeframe? 16 A: No, just to Harnick, Hodgson and 17 Premier's office staff. Although we -- I mean, we -- I 18 also was the chair of a legal education committee that 19 did general briefings for staff within the Government at 20 the time, on Aboriginal issues. 21 Q: So you were giving a number of 22 briefings -- 23 A: Yes. 24 Q: -- in this timeframe? And I believe 25 you testified that you only attended the second of the
251 two briefings to the Premier's office. You don't have 2 any direct knowledge regarding the first briefing? 3 A: I believe that's the case, yes. 4 5 (BRIEF PAUSE) 6 7 Q: And you gave some evidence regarding 8 the content of some of those briefings that you gave, 9 with respect to the legal framework, as of 1995? 10 A: Yes. 11 Q: And you testified that the general 12 rule, which is subject to some exceptions, is that 13 Aboriginal peoples are subject to the same laws as non- 14 Aboriginals and entitled to the same government benefits 15 and programs? 16 A: Yes. 17 Q: And as of 1995, when you gave these 18 briefings, you understood and you explained that Section 19 35 of the Constitution Act, doesn't create any new 20 rights, it simply affirms and recognises any existing 21 rights of Aboriginal people? 22 A: I set out the law, which is at 23 Section 35 recognising the existing rights of Aboriginal 24 people. 25 Q: Rights which have not been
261 extinguished because they've been sold or otherwise prior 2 to 1982. 3 A: Right. 4 Q: And I understand that as of '95, you 5 would have explained this, there was still questions 6 regarding Section 35. I mean -- 7 A: I think the law was continuing to 8 evolve in terms of the interpretation of Section 35. 9 Q: Yes. And some of those questions I 10 believe are in the briefing materials that you used. For 11 example, those at page 18 and 19. I'll just turn up 12 Tab -- 13 MR. DERRY MILLAR: This is Tab 20, 14 Exhibit 642, 3001721. 15 16 CONTINUED BY MS. ANNA PERSCHY: 17 Q: So, if you -- if you look at page 18 18 and 19 there are some comments about what you know so far 19 and what you still don't know about Section 35 because 20 it's evolving. 21 A: Yes. 22 Q: Right. And during the briefings you 23 also spoke about fiduciary obligations. 24 A: Yes. 25 Q: And I understand that in 1984 the
271 Supreme Court of Canada had held the Federal Government 2 had fiduciary obligations and that had generated quite a 3 lot of litigation. Again, this was an evolving area of 4 law in 1995. 5 A: Yes. 6 Q: And as of 1995, it explained this, 7 while the courts had held that the Federal Government 8 owes fiduciary obligations to First Nations people, the 9 nature and extent of that specific duty depends on the 10 specific circumstances of each case. 11 A: Yes. 12 Q: And as of 1995 no case had ever held 13 that the Province owed any fiduciary obligations to 14 Aboriginal peoples. 15 A: Yes. 16 Q: And I think you mentioned at the 17 briefing that some First Nations people were seeking an 18 extension of fiduciary obligations that successive 19 Provincial Governments didn't agree that there was a 20 legal basis to so extend those obligations. 21 A: I think I said that Ontario had been 22 resisting the assertion that Provincial Governments have 23 fiduciary obligations. That was the position at that 24 time. 25 Q: Of successive governments?
281 A: Yes. 2 Q: Now, you testified that you attended 3 the briefing, but you weren't sure if Yan Lazor or Larry 4 Taman had attended. 5 A: Right. I think one (1) of the two 6 (2) of them attended but I can't recall who -- which of 7 the two (2) attended. 8 Q: And you thought someone from the 9 negotiation side probably attended -- 10 A: Yes. 11 Q: -- but you weren't sure who. 12 A: Right. Perhaps Lise Hansen, but I -- 13 I don't know. 14 Q: You don't know. 15 A: There were a number of people who 16 worked in that area. 17 Q: And other than topics that you 18 probably spoke to, I think you indicated some 19 uncertainty, you also couldn't recall who would have 20 given which portions of the briefing. 21 A: Well, I -- I think someone from the - 22 - the negotiations or the civic corporate policy area 23 like Tim Eggar would have dealt with some of the other 24 issues. Like there's a section called, How Does Ontario 25 Organize Itself, to deal with Aboriginal issues. And so
291 that might have been given by someone like Tim Eggar from 2 Corporate Policy. 3 And then there's a whole section on the 4 frameworks for -- for negotiation which would have been 5 someone from the negotiation secretariat normally, unless 6 -- if Yan were there, he would have been able to do that. 7 Q: And -- and you're using the words 8 'would have' because you're reconstructing using -- 9 A: Yes. 10 Q: -- logic looking at -- 11 A: I can't -- I can't remember who was 12 actually at the briefing from ONAS. 13 Q: And that's under -- understandable 14 because you've -- you've given many briefings over the 15 years? 16 A: Yes. 17 Q: So, your recollection of this 18 particular briefing is pretty limited; is that fair? 19 A: My recollection of some things is 20 fairly limited. I guess there are some things that I 21 remember quite clearly because anything that's really 22 sort of startling of unusual, is something that tends to 23 stick in my mind. 24 So, I guess what does stick in my mind 25 from this and you know, for example, the briefing I did
301 with Minister Hodgson were the comments that I got back, 2 you know, after I'd explained that Aboriginal people do, 3 in fact, have special rights that are constitutionally 4 protected under Section 35. 5 And then to, sort of, hear the response, 6 Well, we don't care about that, our policy is there are 7 no special rights, that's something that was so 8 surprising to me because I've never briefed people and 9 explained to them constitutional obligations and then 10 been met with a response that basically this government 11 doesn't care what the constitutional requirements or 12 obligations are, our policy takes priority. 13 As a lawyer, to hear something like that 14 is quite shocking. So, I was -- it's something I 15 remember very well just to this day from my present 16 memory. 17 Q: And you testified that the new 18 government came in with, I think the words you used were, 19 a very clear policy that Aboriginal peoples do not get 20 any special rights; that -- that's -- that's what you 21 said in your examination- in-chief. 22 A: That -- that was -- that was their 23 stated policy. 24 Q: I'm going to -- in -- in the briefing 25 -- in the bunch of materials in the folder that you have,
311 if you could turn to Document 1004266? This is a fax to 2 Yan Lazor dated September 8th, 1995. 3 A: Yes. 4 Q: It's from Tim Eggar, and I understand 5 he was with the Ontario Native Affairs Secretariat? 6 A: Yes, he was the Director of Policy or 7 Corporate Policy. 8 Q: And this document is entitled, Review 9 of the Government's Commitments with Reference to 10 Aboriginal Peoples, and it's prepared by Corporate Policy 11 and Planning Branch Ontario Native Affairs Secretariat 12 and it's dated August 4, 1995? 13 A: Yes. 14 Q: And this document lists in the 15 succeeding pages the new government's comments and 16 commitments in regard to Aboriginal issues. 17 Have -- have you seen this document 18 before, Ms. Jai? 19 A: Just -- you handed me this folder 20 last -- yesterday so I did glance at it last night, yes. 21 Q: But, you hadn't seen it prior to 22 today? 23 A: It's possible that I saw it in August 24 of 1995 when it was prepared. I can't recall if I did 25 see it then or not.
321 Q: Okay. Fair enough. This document, 2 though it lists the new government's comments and 3 commitments in regards to Aboriginal issues, it -- it 4 doesn't refer to the clear policy that you would describe 5 that Aboriginal peoples do not get any special rights? 6 A: Well, I -- I guess that's somebody 7 who knows Aboriginal issues fairly intimately. I feel 8 reading this that in may ways it does say that. 9 Q: Okay. 10 A: I just -- do you want me to point you 11 to the places where it says that? 12 Q: Well, I'm not asking for you to 13 provide an interpretation, I'm simply asking if there was 14 a clear statement to the effect that Aboriginal peoples 15 do not get any special rights? 16 17 (BRIEF PAUSE) 18 19 A: I mean, one (1) example under Native 20 Hunting and Fishing Rights it says: 21 "A balance must be struck between 22 native hunting and fishing rights and 23 the priorities of conservation with 24 equal treatment for all Ontarians." 25 Which suggests that there would not be any
331 priority -- hunting or fishing for native Ontarians. 2 Then it also says: 3 "A Mike Harris government would ensure 4 that the fish and game laws of Ontario 5 would once again be applied to the 6 Williams Treaty Bands in keeping with 7 the Supreme Court decision and the 8 Williams Treaty." 9 Well, that's, again, a change from what 10 had been a -- a situation where there had been some 11 priority fishing for the Williams Treaty First Nations 12 that again is being -- the statement is being made that 13 that would be changed so that they would have no greater 14 rights than non-Aboriginal people. 15 Then again it says, the Rae government 16 continued with the leniency policy of former Minister 17 Glen McLeod, that's under the Liberal government, and 18 that was a -- I think that's referring to the interim 19 enforcement policy. 20 And then it says it was insulting to 21 native people to implement a policy that automatically 22 assumes they do not respect fish and game regulations. 23 The policy was ill-conceived and caused unnecessary 24 animosity between native and non-native anglers and 25 hunters.
341 I mean, what that is saying is that they 2 would -- well, it says right here: 3 "I would scrap the interim enforcement 4 policy. The existing fish and game 5 laws of Ontario are without prejudice 6 towards any race of people." 7 So it says they -- oh, yeah, it goes on to 8 say they: 9 "Protect the fish and wildlife that are 10 important conservation heritage for all 11 Ontarians, native and non-native alike. 12 No other policy is needed." 13 So those are all examples, those are 14 statements in which the -- what is being said is that 15 Aboriginal people would not get any special treatment and 16 that they would not have any priority with respect to 17 hunting and fishing and that is contrary to their 18 Aboriginal rights under Section 35 of the Constitution 19 Act. 20 Q: And that's your interpretation, 21 right? I mean, it -- 22 A: Well -- 23 Q: -- doesn't -- 24 A: I think it's fair that it actually 25 says that. I mean, perhaps --
351 Q: The document says what it says, 2 right? 3 A: Right. It's the interpretation of 4 somebody. It is with the backdrop of somebody who 5 understands the constitutional framework; what Section 35 6 means; what the Sparrow Decision says; what the existing 7 legal regime is around Aboriginal rights. 8 COMMISSIONER SIDNEY LINDEN: I presume 9 that's why you're putting these questions to this 10 Witness, not just to read the words. We can do that. 11 MS. ANNA PERSCHY: No, I appreciate that. 12 What I was trying to find out from this Witness, because 13 she had testified that there was a clear policy -- 14 COMMISSIONER SIDNEY LINDEN: Right. 15 MS. ANNA PERSCHY: -- that Aboriginal 16 peoples didn't get any special rights, and I was trying 17 to understand from her what -- was she was referring to a 18 precise statement or a policy that expressly stated that 19 or whether she was simply interpreting some of the 20 policies that are referred to in this document, and -- 21 and I have my answer -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MS. ANNA PERSCHY: -- with respect to 24 that. 25
361 CONTINUED BY MS. ANNA PERSCHY: 2 Q: And you -- if I could have this 3 document marked as the next exhibit? 4 THE REGISTRAR: P-706, Your Honour. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 7 --- EXHIBIT NO. P-706: Document number 1004266. Fax 8 to Yan Lazor from Tim Eggar: 9 Review of the Governments 10 comments/commitments with 11 reference to Aboriginal 12 issues, September 08/'95. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: And you testified that someone at the 16 briefing, you couldn't recall who, had stated that the 17 Government's position was that Aboriginal people have no 18 special rights, irrespective of Section 35 and you 19 referred to that -- 20 A: Right. 21 Q: -- again today. I anticipate that we 22 will hear evidence that Deb Hutton, as a political 23 staffer within the Premier's office, was very well aware 24 of the party's policies in regard to Aboriginal issues 25 and that she never made or heard the comment that you
371 referred to at any meeting. 2 And I take it that doesn't assist your 3 recollection with respect to this briefing? 4 A: No that doesn't change my testimony. 5 Q: And I take it, from what you've said 6 this morning, that you didn't agree with the policies of 7 the new Tory government as you understood them? 8 A: I can't answer a sweeping statement 9 like that -- 10 COMMISSIONER SIDNEY LINDEN: Yes Ms. 11 Twohig, I'm not sure about -- 12 OBJ MS. KIM TWOHIG: I just wanted to object 13 to that question -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MS. KIM TWOHIG: -- because I don't think 16 her personal views are relevant or appropriate. 17 COMMISSIONER SIDNEY LINDEN: Yes, I agree 18 with you, Ms. Twohig. I don't think that we want to get 19 into that at this point. 20 MS. ANNA PERSCHY: Well, I simply raised 21 them to the extent that Ms. Jai was speaking to her 22 interpretation of certain statements that were made in 23 the policy documents, the statements that we've looked at 24 previously. 25 COMMISSIONER SIDNEY LINDEN: That's not
381 the same thing as asking her personal opinion about the 2 policies of the Government. 3 4 CONTINUED BY MS. ANNA PERSCHY: 5 Q: And just before I forget, just coming 6 back to that briefing, we looked at that particular 7 document and the statements in there, and I take it that 8 you don't know of any particular policy document which 9 expressly stated the comment that Aboriginal peoples do 10 not get any special rights? 11 A: Well, even the document that you 12 showed me does say that in a number of ways. 13 Q: I'm simply asking if that expressed 14 statement exists in a policy document that you're aware 15 of, rather than interpreting -- 16 A: Not that I am aware of, no. 17 Q: Fair enough. Now you chaired 18 meetings on August 2, September 5 and 6 of 1995, you 19 chaired the meetings of the Interministerial Committee; 20 is that right? 21 A: Yes. Yes. 22 Q: And you testified that you took notes 23 during those Committee meetings and those are the notes 24 that are at Tabs 14 and 31 of Commission Counsel 25 documents. I believe they've been made Exhibits P-507
391 and P-536. And I'm not going to refer to them right now 2 but they're Document Number 1011695 and Document 1012579. 3 And I take it that as best you could, you 4 took accurate and copious notes of what was said at the 5 meetings, or at these meetings? 6 A: Yes. 7 Q: And I take it that you took these 8 notes contemporaneously so the notes reflect the order in 9 which various comments were made at the meeting. 10 A: More or less. I mean there are some 11 minor exceptions where I would make a note that was to 12 myself or, you know, that was not recording what somebody 13 had said. So those would not necessarily be in order. 14 Q: Fair enough. And -- and I think you 15 referred to those when -- when Commission Counsel took 16 you through your notes. But, that aside, the notes 17 pretty much reflect the order in which comments were 18 being made at these meetings? 19 A: Yes. 20 Q: And other than your handwritten notes 21 which are at Tabs 14 and 31 of Commissioner Counsel 22 documents, you made no other contemporaneous notes of 23 what occurred at these meetings? 24 A: That's correct. 25 MR. DERRY MILLAR: She did and we've got
401 evidence of e-mails that were sent at the same time. 2 3 CONTINUED BY MS. ANNA PERSCHY: 4 Q: Well, they were made after the fact. 5 These -- that's reference to the Yan Lazor 6 e-mails. 7 And -- and the e-mails Yan Lazor made 8 following the meetings. But, at the meetings the only 9 contemporaneous notes are the handwritten notes that you 10 took -- that Commission counsel took you through; is that 11 right? 12 A: Yes, those are the only ones that I 13 took while I was at the meetings. 14 Q: And in terms of notes made after the 15 meeting, the -- the only notes that exist are those e- 16 mails that you sent to Yan Lazor that -- that you know 17 of? 18 A: That I -- that I know of, I guess. I 19 mean it's quite possible that there were other e-mails or 20 notes or little handwritten notes. I -- I don't want to 21 agree to something as sweeping as that without having 22 complete knowledge. 23 Q: Fair enough. But to -- to your 24 knowledge today, as you testify at this Inquiry, those 25 are the notes that exist to your knowledge.
411 MR. DERRY MILLAR: Well -- but, she said 2 that she can't say that without -- there's thousands of 3 documents in the database. If My Friend has another note 4 that she's found, perhaps she could give it to her. The 5 notes that -- that Commission Counsel put to the -- put 6 to the Witness were ones that were in the database that 7 were relevant to the issues of this Inquiry. 8 There may be other notes in the database 9 or other e-mails in the database. 10 MS. ANNA PERSCHY: It -- it's not a trick 11 question. 12 COMMISSIONER SIDNEY LINDEN: No. 13 MS. ANNA PERSCHY: I was -- I simply 14 wanted to know whether from her knowledge whether at this 15 point in time she knows of any other notes. That -- that 16 was all that I was asking. 17 COMMISSIONER SIDNEY LINDEN: I think she 18 said that there may be. She doesn't know. If anybody 19 has any, I'm sure they'll bring them forward. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: We'll come to the content of the 23 Interministerial Committee meetings in a moment but I -- 24 I take it from -- from some of the comments that you -- 25 you've made already, content of communications aside at
421 this meeting, you weren't particularly comfortable with 2 Deb Hutton's communication style at these meetings; is 3 that fair? 4 It -- it wasn't a style that you had? 5 A: I was unused to political staff 6 taking such a dominant role at these meetings. Like, in 7 the past, political staff had come really to bring 8 information back to their Ministers or to engage in sort 9 of a dialogue rather than to give explicit direction as 10 directly as she appeared to do. 11 Q: Now, the Interministerial Committee 12 meetings of September 5 and 6, 1995 dealt exclusively 13 with the situation at Ipperwash Park, right? 14 A: Yes. 15 Q: And the Committee was considering -- 16 was looking at possible government responses to that 17 particular situation, correct? 18 A: Yes. 19 Q: And I take it that context is key. 20 The particular circumstances are highly relevant? 21 A: Yes. 22 Q: And that is why you, as Chair, 23 provided even at the meeting of August 2nd , 1995, the 24 detailed background information which is at Tab 13 of 25 Commission Counsel's documents?
431 A: You mean the briefing note on how the 2 Committee works and its mandate? 3 Q: That on the one hand, but also the 4 detailed information regarding the camp and the Park 5 and -- 6 A: Yes. 7 Q: If you want to take a moment to look 8 at Tab 13, just to refresh your memory, you can -- 9 A: No, I'm -- I'm -- 10 Q: -- do that. 11 A: -- I just wanted to be sure I knew 12 what you were referring to. 13 Yes, so that included the background, the 14 note on the procedures for dealing Aboriginal emergencies 15 and then an information note of the Chippewas of Kettle 16 and Stony Point and Ipperwash Provincial Park. 17 Q: And it was really the latter that I 18 was referring to, the background information regarding -- 19 A: Okay. 20 Q: -- the camp and the Park. 21 22 (BRIEF PAUSE) 23 24 Q: And it's because the particular 25 circumstances are highly relevant that you had Ron --
441 excuse me, Ron Fox and the representatives from MNR on 2 the ground, provide further updates, both on the 5th and 3 the 6th, right? 4 A: Well, that would be true with any 5 emergency situation that I would have the people provide 6 up to date information. 7 Q: And the reason you do that is because 8 in each situation -- the specifics of that particular 9 situation that are relevant? 10 A: Yes. 11 Q: And as I think you've mentioned, 12 between September 4th and 6th, 1995, the occupiers -- 13 actually, prior -- any time prior to September 6th, 1995, 14 from August to September 6th, inclusive, the occupiers 15 never articulated the basis for any belief that the park 16 was theirs, right? 17 You're not aware of that? 18 A: Well, all I had heard was that Ron 19 Fox had said that he had heard that some of the -- that 20 there was this reference to a potential burial ground. 21 Q: And also the comment that the Park 22 was theirs? 23 A: Right. 24 Q: And so you didn't have any more 25 information as to why they were there, correct?
451 A: Correct. 2 Q: And you testified that at the 3 Interministerial Committee meeting on August 2nd, you 4 discussed the Province's title to the Park and there was 5 the opinion that the Province had good title and that 6 there were no land claims filed, right? 7 A: Correct. 8 Q: And the occupiers hadn't made any 9 formal demands -- 10 A: Correct. 11 Q: -- right? 12 MR. DERRY MILLAR: Well, August the 2nd 13 they weren't there yet. 14 THE WITNESS: Yeah, they weren't -- 15 MS. ANNA PERSCHY: Sorry. 16 THE WITNESS: -- they weren't occupying 17 it. 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: September 5th and 6th, I stand 21 corrected. Thank you, Mr. Millar. 22 As of September 5th and 6th, the occupiers 23 had made no formal demands? 24 A: There had not been any formal 25 communications with the occupiers.
461 Q: And so they hadn't communicated any 2 demands? You weren't aware of -- 3 A: Correct. 4 Q: -- what specific demands there were? 5 And at the beginning of the Committee 6 meeting, the Interministerial Committee meeting on 7 September 5, 1995, Elizabeth Christie made reference to 8 the recent decision of the Courts regarding the action 9 involving Ipperwash West Beach, and advised that -- and 10 she had advised that that further supported the 11 Province's ownership of the parklands, right? 12 You recall that advice being given, that 13 information being given at the meeting, at the outset? 14 A: I believe so. I'd have to check my 15 notes or the minutes, but I know that we did know about 16 that decision and probably it was Elizabeth, but I -- I 17 can't actually directly recall if it was Elizabeth who 18 gave us that briefing. 19 Q: Well, if you could turn to the notes 20 which, I believe will be identified as Ms. Hipfner's 21 which I think have been made Exhibit P-510 and the 22 Document number is 1011739. 23 A: Yes, I have that. Yes. All right. 24 Q: And -- and -- and you'll see that at 25 least according to those notes it appears that Liz
471 states: 2 "Decision affects Ipperwash PP 3 [presumably Provincial Park] has effect 4 of confirming Ontario's title to the 5 Park lands." 6 Does -- does that assist your recollection 7 that it was -- that was Elizabeth Christie who made these 8 comments? 9 A: Well, that's what these notes say and 10 I believe her notes are probably accurate, but Eileen 11 will be able to testify to that. Then -- and there's a 12 later comment from Dave who I assume is Dave Carson, but 13 just that a number of people were potentially speaking 14 about this issue. 15 Q: Fair enough. And -- and the 16 reference was to the recent decision of Killeen -- 17 A: Yes. 18 Q: -- J., Mr Justice Killeen. And I 19 think Commission Counsel took you to -- to a reference in 20 regards to that decision? 21 A: Yes. 22 Q: And in -- in that case the First 23 Nations people had made various allegations about the 24 surrender of the West Ipperwash beach lands, but the 25 Court had held that there was no genuine issue for trial
481 with respect to the First Nations people's challenge to 2 root validity of the surrender and the Crown patent which 3 gave affect to that surrender? 4 MR. DERRY MILLAR: I don't think the case 5 went that far. The case said for the proposition that 6 they weren't going to set aside the title with respect to 7 the cottages. It does not go as far as My Friend says 8 from my understanding of it, the case -- you'll be able 9 to look at the case and determine yourself. 10 COMMISSIONER SIDNEY LINDEN: I don't 11 think this is the time to make these legal arguments -- 12 MR. DERRY MILLAR: I -- I agree with you. 13 COMMISSIONER SIDNEY LINDEN: -- case law. 14 MS. ANNA PERSCHY: It -- it -- 15 MR. DERRY MILLAR: And it -- but it 16 doesn't -- the case doesn't go -- doesn't stand for what 17 My Friend says. 18 COMMISSIONER SIDNEY LINDEN: But she can 19 make that argument when the time comes. 20 MS. ANNA PERSCHY: It -- it wasn't 21 intended as an argument, I was simply trying to find out 22 from this particular Witness what here recollection was 23 as to the information that she gave -- that she received 24 with respect to this case. 25 COMMISSIONER SIDNEY LINDEN: Well, why
491 don't you ask her that question? 2 MR. DERRY MILLAR: Why don't you ask her? 3 4 CONTINUED BY MS. ANNA PERSCHY: 5 Q: Ms. Jai...? 6 A: The general gist of the information 7 that we received was that because of this decision of 8 Killeen J. that dealt with surrenders that were 9 potentially related to the surrenders that were given to 10 other private landowners from whom Ontario has purchased 11 the land for Ipperwash Provincial Park, that there was 12 the possibility that that increased the likelihood that 13 those surrenders were valid, and therefore increased the 14 likelihood that our title to the Park was -- would not be 15 able to be successfully challenged. 16 Q: And -- and you were quite comfortable 17 at these meetings that Ontario did, in fact, have good 18 title to the lands, correct? 19 And that was -- that was your -- 20 A: That was my belief based on 21 information provided from other people. I had not 22 personally looked into any of this. 23 Q: That's -- that's fair. And at this 24 meeting on September 5th, 1995, according to your notes 25 and if you want we can refer to them, someone indicated
501 that two (2) years earlier the Stoney Pointers had been 2 informed of the Government's position regarding title to 3 the Park and had invited them to make a claim but they 4 hadn't done so? 5 A: Yes. 6 Q: Do you recall that comment being 7 made? 8 A: Yes. 9 Q: And I believe that you testified that 10 you didn't know about the letter to Maynard George in 11 August of 1995, but I take it that by September 5th and 12 6th you knew that in 1993 under the previous NDP 13 Government, the Government had reviewed its title to the 14 Park and looked at Maynard George's claim and determined 15 that the province had clear title? 16 You -- you were aware of that in September 17 -- September of '95? 18 A: I can't recall. 19 Q: If I could have Exhibits P-215 and P- 20 241, please? 21 22 (BRIEF PAUSE) 23 24 Q: Sorry, it's the letter from 1993 to 25 Chief Tom Bressette and Maynard Travis George, document
511 numbers 1011203 and document number 1007820. 2 3 (BRIEF PAUSE) 4 5 THE REGISTRAR: P-215 and what was the 6 other one, please? 7 MS. ANNA PERSCHY: P-215 and P-241. 8 THE REGISTRAR: P-241? 9 MS. ANNA PERSCHY: Yes. 10 11 (BRIEF PAUSE) 12 13 THE WITNESS: Okay, I have these 14 documents now. 15 16 CONTINUED BY MS. ANNA PERSCHY: 17 Q: And the content of both is quite 18 similar. They're both letters from Ron Baldwin and 19 they're copied to Howard Hampton who was then the 20 Minister in charge of Native Affairs, as I understand it. 21 And the letters... 22 23 (BRIEF PAUSE) 24 25 Q: I've been advised that Howard Hampton
521 at the time was Minister of the Attorney General, but in 2 any event, he was one of the Ministers of government. 3 Thank you, Mr. Millar. 4 And with respect to both these letters, 5 the letters indicate that Ontario had lawful ownership of 6 the Park and that the Park and the Camp had to be 7 distinguished; that Maynard George's bailiff order was 8 invalid. And on matters of information sharing, an 9 economic opportunity pertinent to the Aboriginals' 10 interests in the Park, Ontario was going to deal with the 11 elected Chief and Council. 12 Did you -- had you seen these letters in 13 1995? 14 A: I don't recall seeing them. These 15 were written by the Ministry of natural resources and I 16 notice that they were not even cc'd to anyone at ONAS. 17 So, it's possible that I saw them, but I 18 certainly don't recall seeing them. I think that when 19 Ron or somebody from MNR was doing it -- may -- you know, 20 briefing of us, they might have mentioned that this 21 correspondence took place. 22 And it's possible that someone else at 23 ONAS got copies of them eventually and perhaps in 1995 24 when we were doing the note on the title to the Park or 25 something like that.
531 But I don't recall having seen them 2 myself. 3 Q: And my next question was going to be, 4 aside from the letters themselves, do you recall as of 5 September 1995, that you understood in a general way that 6 several years previously, the NDP Government had taken 7 these -- had reviewed the issue of title to the Park and 8 had taken these positions? 9 A: I can't recall if I was aware of that 10 or not at the time. 11 Q: But you found out subsequently, I 12 take it, at some point? 13 A: Well, all -- all I know is that at 14 the time, based on the information I received from staff 15 in ONAS, that what they said was that we had good title 16 to the Park and that was outlined in a number of the 17 notes, for which they may have had access to these two 18 (2) documents, you know, in preparing the notes. I don't 19 know. 20 And I was not involved in preparing either 21 of those notes. 22 Q: But, you did know at the meeting, it 23 was stated at the meeting there was a reference to what 24 had happened two (2) years previously? 25 A: I believe so, but I -- my memory of
541 this point is quite vague. 2 Q: So, all you have really is -- is your 3 -- the notes that you have which indicate that two (2) 4 years earlier the Stoney Pointers had been informed of 5 the Government's position regarding the title to the Park 6 and had been invited to make a claim -- 7 A: Yes. 8 Q: -- and hadn't done so? So that much 9 you did know? 10 A: Hmm hmm. 11 Q: Fair enough. 12 MR. DERRY MILLAR: Commissioner, if I 13 might direct something that I advised My Friend on. 14 Between '93 and '95, Mr. Hampton was the Minister of 15 Natural Resources. He was AG from '90 to '93. 16 MS. ANNA PERSCHY: Thank you for that, 17 Mr. Millar. 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: Your notes of September 5 indicate 21 that Dan Elliott had made a comment that there was no 22 previous archaeological evidence of the burial ground but 23 there was some recent evidence that hadn't been 24 evaluated? 25 A: Yes, right.
551 (BRIEF PAUSE) 2 3 Q: Now, in answers to undertakings, and 4 for the assistance of My Friends, it's Document number 5 3000407, the letter from counsel dated June 19th, 2003, 6 Undertaking number 135, Dan Elliott provided information 7 regarding your notes of his comments. 8 And he indicated that he would not have 9 said that there was any new evidence of a burial ground 10 as he wasn't aware of any. And he indicated that he may 11 have been referring to the 1972 study of the Park and 12 that you must have misunderstood his comment. 13 Is it possible that you misunderstood his 14 comment, Ms. Jai? I'm simply asking for your 15 recollection. 16 A: I'd just like to go to that point in 17 my notes. 18 Q: Sure. 19 A: What page is that on? Is that on -- 20 that's on the September 5th or? 21 Q: On September 5th. And it's -- it's 22 the first page of the September 5th notes. And I believe 23 what it says is: 24 "Dan Elliott. No previous 25 archaeological evidence of burial
561 ground but some new evidence recently 2 has not been evaluated." 3 A: Yes. Yeah, I see that now. Sorry, I 4 was -- I was looking at the wrong document. So, yes, 5 that's what my notes say. 6 Q: And what Mr. Elliott indicated in 7 answers to undertakings was that he wasn't aware of any 8 such new evidence and he wouldn't have used those words 9 because it wasn't his function to collect or be aware of 10 any -- of any such evidence. And -- and he was 11 suggesting that perhaps you had misunderstood his 12 comment. 13 And I was just wondering if it's possible 14 that you misunderstood his comment? 15 A: Yes. 16 Q: And I take it that you weren't aware 17 of any recent evidence with respect to a burial site. 18 A: Correct. 19 Q: And in any event, you testified that 20 even if there were a burial site, and I believe this was 21 the -- the opinion of Dave Carson, that he advised that 22 that did not create a legal right to occupy the Park? 23 A: That's correct. Yeah, it's possible 24 just looking at this note from Dan that it was someone 25 else who said this and that it just -- that because of
571 the rush of writing notes that I hadn't, you know, moved 2 my pen over to the margin or written down who else has -- 3 you know, what comment that was. 4 But it is also possible that I just 5 miswrote or mis -- misheard that comment. 6 Q: And -- and as I understand it, one 7 looks at some of the other notes, they also refer to Dan 8 Elliott talking about this issue. So, but you -- your 9 testimony today is that you weren't aware of any -- of 10 any recent evidence, as of September 5? 11 A: Right. Right. 12 Q: Now, at the meeting on September 5, 13 the initial discussion really centered on whether to 14 proceed with an injunction or whether to wait and see if 15 the occupiers would indicate what their demands are, is 16 that fair? 17 Sort of, the -- the first portion of the 18 meeting was along those lines? 19 Do you have a recollection, Ms. Jai? 20 A: Yeah, I'm just trying to -- 21 Q: I just see you reviewing your notes. 22 A: -- I'm just trying to say that that's 23 -- I mean maybe that's too -- too much of a summary 24 because the first portion of the meeting was really 25 information gathering and sort of sharing of concerns and
581 views. So, it wasn't as focussed as you're saying, that 2 we had sort of picked these two (2) options and we were 3 trying to decide between them. 4 Q: Fair -- fair enough. 5 A: So, that's what I was kind of 6 hesitating because I didn't really agree with your 7 comment, but was trying to come up with a more accurate 8 summary of what the first portion of the meeting dealt 9 with. 10 Q: I didn't -- I didn't mean to suggest 11 that there wasn't some time spelled -- spent review -- 12 getting the updates, getting some more information with 13 respect to the -- to the situation. 14 A: And just getting people's views and 15 concerns on the table. 16 Q: One (1) of the notes refers to a 17 comment that there's another Provincial park a fifteen 18 (15) minute drive away. 19 It's not in your notes, but do you recall 20 -- do you recall a comment along those lines? 21 A: I recall some concern at either this 22 or the next day's meeting about the Pinery which is 23 probably the park that was being referred to, which is 24 also on the shores of Lake Huron and very close that 25 would be consistent with the fifteen (15) minute drive.
591 Q: And -- and I take it that you hadn't 2 personally been to Ipperwash Park, you didn't now the 3 immediate area? 4 A: That's true, I didn't know the area. 5 Q: And you were advised -- you testified 6 that you were advised that the Park was closed. You were 7 advised at the Interministerial Committee Meeting that 8 the Park had been closed not in the ordinary course, but 9 as a result of the occupation of the Park, right? 10 A: Well, it normally closes on Labour 11 Day and I was advised that it was closed. 12 Q: I appreciate that, but if you -- if 13 you could turn to Ms. Christie's notes of September the 14 5th and -- 15 A: Where would I find these? 16 Q: I believe that they're -- you should 17 have a copy there. It's Document -- it's Document number 18 1012562. 19 A: I -- I don't -- 20 Q: And I believe it's been made an 21 exhibit, but I -- I don't recall the exhibit number. 22 A: Yeah, I'm afraid I don't have that 23 material. 24 COMMISSIONER SIDNEY LINDEN: We'll see if 25 Mr. Millar can put it up on the board. On the screen.
601 (BRIEF PAUSE) 2 3 CONTINUED BY MS. ANNA PERSCHY: 4 Q: If you go to page 4. 5 6 (BRIEF PAUSE) 7 8 Q: At the top it states: 9 "Normally shut down Park. Normal 10 season ends Labour Day. Now, have 11 closed it entirely because of this 12 incident." 13 And did you now -- first of all, does that 14 assist your recollection with respect to the issue that 15 the Park was closed because of this incident? 16 MR. DERRY MILLAR: Well, the note says 17 and we'll have to ask the writer, the Park -- as the 18 Witness said -- the Park normally closes on Labour Day. 19 And that's exactly what she said. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: If you could turn to P-551; that's 23 the -- the motion record? 24 A: If -- If I could -- this -- I sort of 25 sense where you're going to. I have now read the motion
611 record from the injunction application, and I now know 2 that in addition to the Park being closed in the normal 3 course that they invoked some special closure procedure 4 in order to totally close it so that members of the 5 public would not be able to go into the Park and would be 6 considered trespassers. 7 This is what I now know. This is not what 8 I knew at the time of the meeting. 9 COMMISSIONER SIDNEY LINDEN: Would you 10 like a break, Ms. Jai? 11 Are you ready for a break or are you okay? 12 We were going to break around 10:15, is that all right? 13 THE WITNESS: Yeah, that's fine. 14 MS. ANNA PERSCHY: I'll just be a couple 15 more moments. 16 COMMISSIONER SIDNEY LINDEN: No, that's 17 fine. I noticed -- 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: And just with respect to the motion 21 record just for a moment, if I could turn you to that 22 document. That's the motion record. It's the Affidavit 23 of Mr. Kobayashi. 24 A: That's P-551? 25 Q: P-551.
621 A: Yes. Yes, are you looking for 2 paragraph 16? 3 Q: In -- Well actually two (2) 4 paragraphs but we -- we can start with paragraph 16. In 5 paragraph 16 of the Affidavit, Mr. Kobayashi stated that: 6 "At 10:01 I closed the Park under 7 Subsection 32(1) of Regulation 952 of 8 revised Regulations of Ontario for 1990 9 made under the Provincial Parks Act. 10 I was concerned with public safety and 11 felt that this was an emergency 12 situation." 13 And I think you indicated that you had an 14 opportunity to review the motion materials. Are these -- 15 are these the materials that you reviewed? 16 A: Well last night, yes. 17 Q: Had you seen them the materials prior 18 to that? 19 I -- I had understood that some time on -- 20 on September 5th or September 6th, you -- you had an 21 opportunity to see the injunction materials? 22 A: I don't know if I saw the Affidavit. 23 Like this was all being done at the last minute. So, I 24 might have seen the draft of the actual notice of motion 25 itself, but I don't recall seeing the Affidavit.
631 At least not -- I mean, perhaps after it 2 was all over but not before it was sworn and brought 3 before a judge, because the timing was extremely tight on 4 this. 5 Q: And if I could just turn you back to 6 paragraph 11 of the Affidavit, Mr. Kobayashi indicated 7 that: "The Park is intensively developed. 8 The camping season ends in the Park at 9 2:00 p.m. on Labour Day. 10 Following Labour Day, permits, the day 11 use are no longer sold by the Park. 12 However, it is still extensively used 13 by the public on a casual basis and on 14 a fine Fall weekend up to three hundred 15 (300) people may use the Park and 16 approximately five thousand (5000) 17 people use it between Labour Day and 18 the end of November." 19 Did -- did you have an understanding that 20 -- that the Park continued to be used in the Fall? 21 A: No. That was not -- that 22 information was not brought to the Committee. I think 23 our understanding was that the Park was closed on -- on 24 Labour Day and that the use of the Park would end then. 25 MS. ANNA PERSCHY: I have it as 10:15,
641 Commissioner. I can stop now if that's your preference. 2 COMMISSIONER SIDNEY LINDEN: I think this 3 would be a good time to take a morning break. 4 THE REGISTRAR: This Inquiry will recess 5 for fifteen (15) minutes. 6 7 --- Upon recessing at 10:11 a.m. 8 --- Upon resuming at 10:29 a.m. 9 10 THE REGISTRAR: This Inquiry is now 11 resumed. Please be seated. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: Ms. Jai, we were going over the 17 meeting of September 5th, 1995 just before we broke. 18 During the meeting, the local MNR representatives 19 expressed some concerns regarding the cottages and homes 20 which were close to the Park, and also indicated that the 21 First Nations elected Chief and Band Council's concern 22 would increase with every hour that passed. 23 You recall -- you recall those sorts of 24 comments being made, right? 25 A: I recall them relaying the concerns
651 of the cottagers and local residents, yes. And that -- 2 and the concern that -- that Chief and Band Council had 3 with the occupation. 4 I don't remember the comment that you made 5 about increasing with every hour but, I mean, it's 6 possible that comment was made. I'm not saying it 7 wasn't. 8 There was some comment about the longer 9 they occupy or something. 10 11 (BRIEF PAUSE) 12 13 Q: Well, I think Ms. Jai -- actually, if 14 you look at your notes -- 15 A: Yes. 16 Q: At page 4. 17 A: Yes. 18 Q: Ron -- the notes that you've 19 attributed to Ron Baldwin -- 20 A: Right. 21 Q: "No public safety issues in the Park, 22 but there are cottages. Homes nearby, 23 so not isolated." 24 A: Right, right. 25 Q: "Also need to consider our
661 relationship with Kettle Point Band." 2 And then just below that -- 3 A: Right. 4 Q: "Each hour that passes..." and 5 there's an arrow pointing up -- 6 A: Yeah. 7 "Will increase the concern of Tom 8 Bressette and Bosanquet." 9 Q: First Nations? 10 A: Actually, yeah, that should say 11 Bosanquet Township. 12 Q: Okay. So, it was the concern of -- 13 A: Yeah. 14 Q: -- the Chief and the Township -- 15 A: Hmm hmm. 16 Q: -- that would increase? 17 And I believe you testified that you were 18 advised at the meeting that the elected Chief, Tom 19 Bressette, didn't support the occupation, correct? 20 A: Yes. 21 Q: In 1992, I believe, that you 22 testified the previous Provincial Government had agreed 23 to the statement of political relationship, right? 24 A: It might have been in 1991, but yes-- 25 Q: Fair enough. And I believe you
671 testified that this was a symbol of government to 2 government dealings? 3 A: Well, that's what is set out in the 4 statement of political relationship. 5 Q: And the new government had not yet 6 made a decision in regard to the statement of political 7 relationship, correct? 8 They hadn't made a -- 9 A: Right. 10 Q: -- formal decision? And that was 11 referred to at this meeting? 12 A: Sorry, I can't hear? 13 Q: Sorry. I was just making the point 14 that the -- the fact that the new government had not yet 15 made a decision with respect to the SPR, that was stated 16 at this meeting, on 17 A: Yes. 18 Q: -- September 5th? 19 Could you turn to Tab 7 of Commission 20 Counsel's documents? 21 22 (BRIEF PAUSE) 23 24 Q: For the assistance of My Friends, 25 it's Document number 107 -- sorry, 1007239 and I believe
681 it was made Exhibit P-643. 2 And if you could turn -- it's the -- the 3 statement of political relationship, SPR guidelines, 4 questions and answers. 5 A: Yeah. And by the way, this document, 6 although it's the Q's and A's that are dated August '92, 7 the actual statement of political relationship was signed 8 in August 1991. 9 Q: And if you could turn to page 25, 10 it's guideline 11, how does Ontario respond to 11 conflicting claims among First Nations organizations. 12 A: Sorry, are you on page 21? 13 Q: 25. 14 A: Oh, sorry, 25. And that's the page 15 number that's at the bottom of the page as opposed to at 16 the top of the page? 17 Q: Yes, yes, it is. And it's got the 18 heading at the top -- 19 A: I see it. 20 Q: -- Guideline 11? 21 A: Yes, yes, I'm with you. 22 Q: And this guideline indicates that 23 there may be conflicts such as two (2) groups competing 24 to represent the same First Nations people within the 25 same community or two (2) groups who may disagree about
691 who represents whom on what issues. 2 Do you see that, that's the second 3 paragraph? 4 A: Yes. 5 Q: And it goes on to state in the fourth 6 paragraph: 7 "Regardless of the nature of the 8 conflict, Ontario Ministries should 9 refrain from imposing their views on 10 the resolution of these conflicts. 11 Wherever possible conflicting claims 12 among First Nations should be sorted 13 out by the parties involved without 14 interference by the Ontario 15 government." 16 A: Yes, I see that. 17 Q: And in light of the statement of 18 political relationship I take it that the fact that the 19 elected chief didn't support the occupiers' actions was 20 important information? 21 A: Yes. 22 Q: And you knew -- I think this came up 23 at the August 2nd meeting -- that the elected chief and 24 council didn't want the Government to act in a way that 25 would give legitimacy to this splinter group?
701 A: Yes. 2 Q: And that would also have been 3 important information, especially light of this statement 4 of political relationship, the -- the feelings -- the 5 feelings of the elected chief and council? 6 A: Well, we didn't know if the statement 7 of political relationship was in effect anymore so I 8 don't think we really considered it in light of that, but 9 in general the views of the First Nation are relevant. 10 Q: Fair enough. Well, not just 11 relevant, fairly important? 12 A: Fairly important. 13 14 (BRIEF PAUSE) 15 16 Q: Now, if you could turn to document 17 1000663? 18 A: Can you tell us what that document 19 is? 20 Q: It's an article. Sorry, it's an 21 article entitled, Our Opinion Park Takeover a Hooligan 22 Act. 23 24 (BRIEF PAUSE) 25
711 Q: And the -- the document number -- 2 A: Yes, I have that. 3 Q: Okay. And this appears to be an 4 opinion piece from the London Free Press and it states at 5 the top a small group of natives in Southern Ontario just 6 crossed the line separating civil protest and terrorism 7 and -- and it goes on to refer to the Camp and to express 8 some sympathy for the frustration with respect to that 9 issue, but then it differentiates between that situation 10 and the actions in regard to the Park. 11 And it goes on... 12 MR. DERRY MILLAR: We can all read it, 13 but does she have a question for this Witness? A) did 14 the Witness ever see this on September 6th? 15 MS. ANNA PERSCHY: I -- I do have 16 questions. 17 MR. DERRY MILLAR: B) If the Witness 18 didn't see it I don't know what relevance it -- 19 COMMISSIONER SIDNEY LINDEN: What 20 relevance it has -- 21 MS. ANNA PERSCHY: I -- I do have some 22 questions. 23 COMMISSIONER SIDNEY LINDEN: I'm sure you 24 do. 25 MS. ANNA PERSCHY: I just wanted to refer
721 to some portions within the article before I ask -- 2 before I ask the questions. 3 COMMISSIONER SIDNEY LINDEN: Well, it 4 might be useful to ask if the Witness has ever seen the 5 article. 6 MR. DERRY MILLAR: If the Witness has 7 never seen it, it doesn't help to read the whole article. 8 COMMISSIONER SIDNEY LINDEN: We can all 9 read the article. 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: Well, the article was published on 13 September 6th not the 5th, but I take it that you were 14 made aware of this article on the 6th. 15 You had people on your staff providing you 16 with various clippings from the media? 17 A: Yes, the Communications Branch was 18 collecting clippings relating to the incident and I 19 probably would have seen this at the time. 20 Q: Okay. 21 A: Though I can't specifically recall it 22 because there were hundreds of articles. 23 Q: Fair -- fair enough. And -- and I 24 just wanted to -- to go through the -- the latter part of 25 the article, the opinion piece with you. And it states
731 that the group has claimed that there are native burial 2 grounds in the Provincial Park, and I'm reading at one 3 (1), two (2), three (3), four (4) -- the seventh 4 paragraph: 5 "Perhaps there are remains there and 6 perhaps this is an issue that has been 7 raised before or is well known in 8 native circles, but to make this kind 9 of protest as a public opening foray 10 into negotiations is a serious mistake. 11 There's no history of government 12 inaction on this grievance or any kind 13 of contractual violation. The Camp 14 Ipperwash claim does not extend into 15 the Parkland. 16 It appears to be a small, extreme group 17 behind this seizure. The extreme 18 elements in native society should be 19 treated just as other anarchist groups 20 would be treated in our society, no 21 matter if their cause is just. There 22 are those in the native community who 23 have the patience to continue to deal 24 with their legitimate complaints 25 through legitimate channels.
741 Protests and civil unrest have drawn 2 attention to certain causes and likely 3 will continue to do so. 4 But just as we cannot condone those who 5 are frustrated with the legal system 6 taking the law into their own hands, 7 neither can we condone it when a native 8 rights claim first comes to public 9 attention through an illegal act such 10 as blockade and seizure of public land. 11 This is especially true when it appears 12 to be an act of a self-appointed band 13 of warriors, rather than a considered 14 action of the larger community in 15 question." 16 And unlike the Camp and the issues with 17 the Federal Government in that regard, at this meeting on 18 the 5th, you didn't know of any longstanding grievance 19 regarding the province -- sorry, regarding the Park, that 20 the province had been ignoring, right? 21 That wasn't your information on the 5th? 22 A: Right. 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 what that has to do with the part that you've read. 25 MS. ANNA PERSCHY: I'm sorry?
751 COMMISSIONER SIDNEY LINDEN: Well, I'm 2 not sure what the question had to do with the part that 3 you read? 4 MS. ANNA PERSCHY: You're not sure if 5 the -- 6 COMMISSIONER SIDNEY LINDEN: No. Well, 7 I'm sorry. You had a -- you read a part and then you 8 asked a question. 9 MS. ANNA PERSCHY: And I'll have some 10 more questions -- 11 COMMISSIONER SIDNEY LINDEN: Okay. 12 MS. ANNA PERSCHY: -- with respect to 13 this -- this article and some other articles as well. 14 COMMISSIONER SIDNEY LINDEN: Well, I -- 15 MR. DERRY MILLAR: Perhaps -- one of my 16 concerns is we have four (4) days to deal with this 17 Witness. 18 COMMISSIONER SIDNEY LINDEN: Well, if we 19 don't get through it, we're not going to get through it. 20 MR. DERRY MILLAR: And -- and the -- this 21 -- asking her about what she did, what she didn't do is 22 relevant. Asking her about what the opinion writer at 23 the London Free Press wrote about is -- 24 COMMISSIONER SIDNEY LINDEN: And she may 25 or may or not have read it at the time. It's not helpful
761 at this point, Ms. Perschy. I don't want to interrupt 2 your -- the cross-examination, but I would hope that you 3 would ask questions that would move us forward. 4 MS. ANNA PERSCHY: And I will be -- I 5 will be trying -- trying to do that. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: At the Committee meeting on September 9 5th, you testified that it was clear that a dissident 10 group weren't supported by the elected Chief, we just 11 went through that, right? 12 A: Yes. 13 COMMISSIONER SIDNEY LINDEN: She's 14 already -- 15 16 CONTINUED BY MS. ANNA PERSCHY: 17 Q: And based on your understanding as of 18 September 5th, the -- the factual information that's 19 referred to in this -- in this opinion piece appears to 20 be correct, it's similar to the information that you had 21 in front of you? 22 Just based on what -- what's stated in 23 this -- in this piece? 24 A: No, well, without more time to really 25 review this, I can't really make a -- I don't want to
771 comment on it, and I think that what I believe the 2 factual evidence was I've already indicated in my 3 testimony. 4 Q: Fair enough. And I just wanted and 5 if actually I -- if I could make this article the next 6 exhibit, just so that it's clear on the record what we've 7 been referring to. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 THE REGISTRAR: Exhibit P-707. 10 11 --- EXHIBIT NO. P-707: Document number 1000663. 12 London Free Press Article, 13 "Park Takeover a Hooligan 14 Act", Sept 06/'95. 15 16 CONTINUED BY MS. ANNA PERSCHY: 17 Q: And if you could turn to another 18 article and I'm conscious of time. I'm not going to 19 spend much time on it. It's the article of the Chatham 20 Daily News and for the assistance of My Friends, it's 21 Document 1006459. 22 MR. DERRY MILLAR: If My Friend wants to 23 ask what they did with respect to the -- at the meeting, 24 she's entitled to ask. The opinions of the Chatham Daily 25 News on September the 6th '95 when this meeting actually
781 took place at 9:30 in the morning, is -- that has nothing 2 to do with what happened at the meeting. 3 She can ask what happened at the meeting. 4 It's not helpful. 5 MS. ANNA PERSCHY: Where I'm going with 6 this will -- will become clear very shortly. And as I 7 indicated, I -- I don't have a lot of articles but -- 8 COMMISSIONER SIDNEY LINDEN: I don't want 9 to interfere. If you can make it relevant and get to the 10 point then just move on. 11 MS. ANNA PERSCHY: I will do that. I'll 12 try to do it quickly. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: This article is entitled -- it's -- 16 it's dated September 6th, 1995 and it's entitled 'Anarchy 17 Rules At Ipperwash' and the first paragraph states that: 18 "Authorities are now paying the price 19 for their refusal to deal with Natives 20 who illegally took over Camp Ipperwash 21 last month" 22 And it goes on at the end to say, third 23 paragraph from the bottom: 24 "Unless Provincial and Federal 25 authorities show that the law applies
791 to all citizens regardless of their 2 cultural backgrounds, they are risking 3 anarchy. And then allowing people by 4 virtue of their ancestry to ignore the 5 laws others are expected to follow is 6 an invitation to violence and 7 disaster." 8 Now, I'm just going to ask you, did -- did 9 -- do you recall being made aware of this article on 10 September the 6th? 11 A: No, I don't. As I said I received 12 dozens of articles during this time. I imagine this 13 would have been among them but I don't recall this 14 specific article. 15 Q: And if not on September 5th, you 16 would have -- 17 MR. DERRY MILLAR: This article was 18 published on September the 6th so I don't know how you 19 can ask -- 20 MS. ANNA PERSCHY: I appreciate that. I 21 appreciate that. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: If not on September 5th, you 25 certainly knew by September 6th that the press and some
801 members of the public were making these kinds of comments 2 even if you don't recall seeing this specific article? 3 A: Yes. I mean the comments are 4 inaccurate and inflammatory so I'm aware that there were 5 those types of articles being circulated. 6 Q: And one last document I'd like to -- 7 to take you to and that's the press release of September 8 5th, 1995 which is P-460. And for the assistance of My 9 Friends, it's Document Number 1009983. And that's 'The 10 Reign of Terror Continues' press release. 11 A: I don't have that document. 12 Q: It's -- it's P-460. 13 MR. DERRY MILLAR: That's the Township of 14 Bosanquet press release. 15 MS. KIM TWOHIG: Commissioner, I would 16 just like to state my concern at this point. I 17 appreciate that there's a fair amount of leeway permitted 18 on cross-examination, but asking Ms. Jai if she is aware 19 of these articles seems to suggest that in some way the 20 Committee may have been influenced by the articles. 21 And I'm very concerned about that 22 impression being created. The fact of her awareness that 23 certain articles were published in my submission is 24 irrelevant to anything unless they relate to the 25 discussions or the decisions.
811 COMMISSIONER SIDNEY LINDEN: This -- 2 MS. ANNA PERSCHY: I'm not suggesting 3 that it influenced -- 4 COMMISSIONER SIDNEY LINDEN: This line of 5 questioning has not been helpful in my view. I'm aware 6 that there were articles like the ones you're referring 7 to, but I'm not sure how this Witness' testimony is any 8 way helpful in that regard. 9 MS. ANNA PERSCHY: I'm coming to a point. 10 COMMISSIONER SIDNEY LINDEN: Okay. 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: Just with respect to this -- to this 14 press release it talks about some comments made by Mayor 15 Fred Thomas with respect to what happened at the camp and 16 now the situation with respect to the Park. 17 And at the end of the third paragraph it 18 states that: 19 "This sends out a message that illegal 20 activities in Canada today are rewarded 21 rather than punished and that's wrong." 22 And the final paragraph states that: 23 "The Town is demanding that the 24 Provincial and Federal Governments 25 initiate appropriate action to remove
821 the illegal occupiers from the land. 2 The laws of Canada, Ontario must be 3 enforced equally for all Canadians and 4 this reign of terror must stop, Thomas 5 said." 6 Now this press release actually came out 7 during the Interministerial Committee meeting on 8 September 5th and I wanted to know, were you made aware 9 of this press release during the meeting? 10 A: No. 11 Q: But you were made aware of it prior 12 to the meeting on September 6th? 13 A: It's possible. As I said, there were 14 so many articles and things and if you have been 15 following my testimony closely you'll realize that I was 16 extremely busy on the days of September 5th and 6th so 17 it's quite possible I had a stack of clippings and did 18 not have time to even read them. I don't know if I read 19 this one or not. 20 Q: It was relevant for the 21 Interministerial Committee to know what was -- what was 22 being communicated to the general public about this 23 incident, what was being reported in the press, right? 24 A: Yes, generally, but it wasn't 25 something that we followed closely; that was --
831 Communications Branch followed that. 2 Q: Right. And part of the Committee's 3 role was to consider the Government's communication 4 messages to the public? 5 A: Yes. 6 Q: And in considering that issue it 7 would be helpful to know what the media -- what was 8 already being told to the public, correct? 9 You -- you want to have that sort of 10 background information? 11 A: Well, I guess I felt -- I mean for 12 example the afternoon of September the 5th I spent with 13 various lawyers in a legal subcommittee meeting because a 14 higher priority for me than reading press clippings would 15 have been analysing the -- the various implications of 16 the different legal options that we had available to 17 remove the occupiers from the Park. 18 So I mean many things are relevant, but 19 you have limited time and this was not -- certainly not 20 as high a priority as what I guess I would have regarded 21 as my responsibility which was providing accurate legal 22 advice to my minister. 23 Q: Absolutely and I'm not -- I'm not -- 24 not suggesting otherwise, I -- I just -- 25 A: So I don't recall whether I read this
841 press release or not. 2 Q: And I -- 3 A: As I said there were dozens of 4 articles. 5 Q: And -- and I was -- I was simply 6 referring to the -- the communication messages issued, 7 that that role of the -- the Communication -- 8 A: Well, that would have been to give 9 general messages such as we're seeking an injunction 10 which I would be able to give -- suggest that as a 11 message if the legal subgroup determined that an 12 injunction was the appropriate way. 13 Then it would be up to the communications 14 branches of each department to decide how to, you know, 15 communicate that message and including the, you know, 16 minister's communication staff. So, they would be the 17 people who would be poring over these press releases and 18 media articles. 19 Q: Fair enough and I actually hadn't had 20 a chance to ask you a question. 21 And my question was simply with respect to 22 the Committee's role in considering government 23 communication messages. In considering that issue and 24 I'm not suggesting it's -- it's the most significant part 25 of -- of what the Committee was doing, but it is one (1)
851 of the Committee's functions, it would be helpful in 2 considering the issue of communication messages to know 3 what the media is already saying about an issue? 4 A: Well, it would be somewhat helpful. 5 There's always a variety of things from the media, some 6 accurate, some inaccurate, some reflecting particular 7 points of view so that a whole mix of -- of information 8 of which only a small amount if any would be of any 9 assistance to us. 10 Q: And -- and I -- and I take it -- 11 A: We were getting the more direct 12 information, for example you know, from people telling us 13 what the concerns of the Town of Bosanquet were so the 14 media articles are really secondary information. 15 Q: And you may not have agreed -- it 16 doesn't sound as if you did -- with some of the views 17 expressed that we've just reviewed, but I take it that 18 you'd agree in a democratic society people are and should 19 be free to express differing views on a particular 20 subject? 21 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 22 what does that have to do with this Witness? 23 MS. ANNA PERSCHY: I'll move on. I'll 24 move on. 25 COMMISSIONER SIDNEY LINDEN: Of course
861 you made a statement that is correct, what has it got to 2 do -- I'm sorry, I'm having a difficult time seeing the 3 relevance of the questions for this Witness. 4 MS. ANNA PERSCHY: And -- and I'll -- 5 I'll come to that, sir. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 8 CONTINUED BY MS. ANNA PERSCHY: 9 Q: Your notes from the Inter-ministerial 10 Committee Meeting of September 5th, if you could just 11 turn to those for a moment? 12 MR. DERRY MILLAR: Tab 31. 13 MS. ANNA PERSCHY: Thank you. 14 THE WITNESS: Yes, I have those notes. 15 16 (BRIEF PAUSE) 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: There's the comment: 20 "Premier is hawkish on this issue. 21 Feels we're being tested on this 22 issue." 23 And then the reference to Jeff Bangs 24 referring to the statement of political relationship and 25 then Ron Baldwin referring to the situation locally.
871 That's at -- 2 A: Yes, at page 4 -- 3 Q: Page 4 of your notes. And that's 4 what your notes state? 5 A: Yes. 6 Q: And I believe you've testified that 7 you attribute that comment to Ms. Hutton, correct? 8 A: Yes. 9 Q: And other than a query regarding 10 Serpent Mounds, I take it you don't recall her making a 11 comment prior to this? There's no reference in your 12 notes to any previous comment? 13 A: I only -- my only recollection is of 14 things that are -- comments that are specifically 15 referenced in my notes. 16 Q: And so you don't recall her saying 17 anything else at this time, right? 18 There's nothing else in your notes other 19 than the words that I've just referred to you at this 20 point in time? 21 A: Well, just -- let me just... 22 23 (BRIEF PAUSE) 24 25 Q: At this point in the meeting?
881 A: Yeah, I mean above -- just above that 2 -- the point that you read there is another point which I 3 would attribute to Deb Hutton because it says: 4 "The Premier asked why this Committee 5 didn't meet to discuss Serpent 6 Mounds --" 7 Q: And I -- 8 A: "--how is that decision made." 9 Q: And other than that, you don't recall 10 -- you don't recall any other comments at this point -- 11 A: Right. 12 Q: Right. And prior to your meeting on 13 September 5th, 1995, you hadn't met Ms. Hutton before, 14 right? 15 A: Oh, actually, sorry. There is 16 another note that Deb Hutton -- another comment she made 17 at that meeting on page 8 at the bottom. 18 Q: And we'll come to that. I'm just 19 talking about this point in the meeting. 20 A: Oh, I see, okay. 21 Q: Prior to your meeting on September 22 5th, you hadn't met her previously? 23 A: I believe -- 24 Q: Other than the -- 25 A: I had met her, because I had done the
891 briefing of Premier's office staff in August. 2 Q: Right, but you didn't know her well, 3 I take it? 4 A: Correct. 5 Q: And I take it you didn't know what 6 her experience was prior to joining the Premier's office? 7 A: Correct. 8 Q: And did you know what her specific 9 responsibilities were within the Premier's office? 10 A: Well, I knew that she was the 11 Premier's EA which is generally the most senior position 12 within a Minister's office staff. 13 Q: But other than that, you didn't -- 14 you didn't have any specific information regarding her 15 responsibilities? 16 A: Correct. 17 Q: Did you appreciate at the time that 18 Ms. Hutton might need to anticipate and consider the 19 reactions of the public and the press to the occupation? 20 A: I -- that's normally something that 21 political staff would consider. 22 Q: Okay. And you may not have 23 considered this at the time, but I take it that you'd 24 agree with me that the Government's response to this 25 occupation, whatever that response was, was something
901 that would also be perceived by people not directly 2 involved in this situation, Aboriginal or non-Aboriginal? 3 A: Yes. 4 Q: And I take it that you appreciate 5 that First Nations people are not the only ones to engage 6 in blockades, occupations, direct actions? 7 A: Right. 8 Q: And there was a political reality 9 that this particular situation could and would be, and in 10 fact was seen by some, as a test of how the Government 11 would respond to any group which took illegal action to 12 pressure the Government to further its own goals? 13 MR. DERRY MILLAR: How can she answer 14 that one? That's a question for the politicians to 15 answer and put to the politicians. She just can't answer 16 with respect to that question. 17 COMMISSIONER SIDNEY LINDEN: I don't 18 think that's a good question for this Witness. It may be 19 a good question for some witness, but I just -- 20 MS. ANNA PERSCHY: Well, let me just 21 phrase it this way. is that something that you thought 22 about at all? 23 COMMISSIONER SIDNEY LINDEN: Well, if the 24 question isn't a good one, then I'd rather you didn't ask 25 it.
911 MS. ANNA PERSCHY: Well, I thought if -- 2 if I asked her just in terms of her own perspective 3 whether or not 4 she thought of that, that it went to her own knowledge. 5 COMMISSIONER SIDNEY LINDEN: I'm not -- 6 well what's the question? I'm sorry, how do you put the 7 question now? 8 9 CONTINUED BY MS. ANNA PERSCHY: 10 Q: I'm sorry. The question simply was, 11 for Ms. Jai, you're attending these meetings, you're 12 reviewing some of these articles and my question simply 13 is whether you appreciated that -- I appreciate it's not 14 your focus, certainly, in terms of your role, but whether 15 or not you appreciated that this particular situation 16 could and was, in fact, seen as -- as a test of how the 17 Government would respond to any group which took illegal 18 action to pressure the Government to further its own 19 goals? 20 COMMISSIONER SIDNEY LINDEN: I'm not sure 21 that -- 22 Yes, Ms. Twohig...? 23 MS. KIM TWOHIG: Yes, Commissioner. This 24 seems to suggest that it was a role of the Committee to - 25 - to consider political issues. And perhaps My Friend
921 might ask the Witness if that was the role of the 2 Committee and if so, were these matter considered? 3 MS. ANNA PERSCHY: I was simply asking if 4 based on the media articles that she was seeing, whether 5 or not she considered this perspective. If she didn't, 6 she didn't. 7 COMMISSIONER SIDNEY LINDEN: Right. 8 MR. DERRY MILLAR: Well I don't -- the 9 media articles, she doesn't know if she saw or didn't see 10 it. 11 COMMISSIONER SIDNEY LINDEN: And they'd 12 be after, in any event. 13 MR. DERRY MILLAR: But the -- the 14 question about the political issues I've objected to it 15 and it's still an improper question. 16 COMMISSIONER SIDNEY LINDEN: Yes. I 17 think it is an improper question. I don't want to get 18 into that. Not with this Witness, in any event. It's a 19 question you might ask another witness. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: You've indicated that you don't 23 recall Ms. Hutton making any other comments at this point 24 in the meeting and you made reference to a comment which 25 we'll come to later. But I take it, from your notes and
931 your recollection, Ms. Hutton didn't specify what action 2 should be taken to bring about an early end to the 3 occupation, correct? 4 A: All I recall her saying was that they 5 wanted -- she wanted -- the Premier wanted to move as 6 quickly as possible, but no specific action. 7 Q: And at this meeting Ms. Christie 8 outlined a number of legal options at this meeting and I 9 think we talked about the Criminal Code, the mischief, 10 the various statutes, trespass to Property Act, Public 11 Lands Act -- 12 A: Yes. 13 Q: -- Provincial Parks Act and the 14 injunction. You -- you recall that? 15 A: Yes. 16 Q: And you will -- you recall that those 17 were the options that were discussed and you advised that 18 the facts that the Committee had might constitute 19 offenses under these statutes and therefore could form 20 the basis for applicable charges with respect to these 21 various statutes, correct? 22 A: Yes. 23 Q: And the Committee decided to have a 24 further legal review of these various statues, right? 25 A: Yes.
941 Q: And that review confirmed that, based 2 on the facts that you had, it did appear to constitute 3 violations of these various provisions? Various 4 provisions under these statutes? 5 A: Well that's kind of vague. I think 6 the legal subcommittee found that the -- the most helpful 7 legal action to take would be to seek a civil injunction 8 that there might be grounds for Provincial Events Act 9 charges under various Provincial statutes but we looked 10 at those and basically concluded that it would be 11 preferable to get a civil injunction. 12 There is another document that analyses 13 the other Provincial statutes like the Provincial Parks 14 Act and the Trespass to Property Act. But I assume you 15 don't really want to go into that -- 16 COMMISSIONER SIDNEY LINDEN: No. 17 THE WITNESS: -- and we did discuss that 18 earlier. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: You've gone -- I take it what you're 22 referring to is that legal memo -- 23 A: Yes. 24 Q: -- that was attached to the 25 Minister's briefing form, that's at Tab 26 --
951 A: Yes. 2 Q: -- of Commission counsel's documents? 3 Right. We've gone through that. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: Now, later in the meeting, you 8 mentioned that there was another comment that -- that you 9 recalled was made by Ms. Hutton and I take it -- 10 A: Yeah, that's at page 8. 11 Q: -- that this is -- this is the 12 notation: 13 "Deb wants an emergency injunction, 14 doesn't want to wait two (2) weeks"? 15 A: Right. 16 Q: And you recall her making a comment 17 along those lines? 18 A: Yes. 19 Q: Right. 20 A: Hmm hmm. And she may well have made 21 other comments that aren't reflected in my notes, since I 22 couldn't write down everything that happened at the 23 meeting. 24 Q: But other than what's in your notes, 25 you don't recall her making any particular --
961 A: Right. 2 Q: -- comments? Now, we've heard 3 evidence regarding the measures that Inspector Carson had 4 taken in regard to Ipperwash by the morning of September 5 5th, 1995, before the Inter-ministerial Committee had 6 even met, and I wanted to simply ask you if you were 7 aware of any of the following measures that he had taken. 8 He had called in sixty (60) emergency 9 response officers; he had had warrants obtained for the 10 arrest of some of the occupiers relating to the incidents 11 which had occurred when the Park was taken over; a St. 12 John's vehicle had been provided which Inspector Carson 13 thought had full ambulance capability, and he had sought 14 to obtain a light armoured vehicle in case he had to 15 evacuate any officers. 16 MR. DERRY MILLAR: Well, I don't think 17 that was the evidence as of the morning of September the 18 5th. 19 COMMISSIONER SIDNEY LINDEN: I'm not 20 sure. 21 MR. DERRY MILLAR: That wasn't Carson's-- 22 COMMISSIONER SIDNEY LINDEN: I'm not 23 sure, but if you -- do you -- 24 MR. DERRY MILLAR: Well, it's not with 25 respect to the light armoured vehicle. It was later in
971 the day if you look at exhibit -- 2 MS. ANNA PERSCHY: I think -- he had 3 taken some steps in that regard. I'm not suggesting that 4 he actually obtained it at that point, but I think -- 5 COMMISSIONER SIDNEY LINDEN: Well, I -- 6 MR. DERRY MILLAR: I think the evidence 7 is that it happened later in the day of September the 8 5th, not by 9:30 in the morning of September the -- 9 COMMISSIONER SIDNEY LINDEN: Well, unless 10 you have a -- 11 MS. ANNA PERSCHY: Well, the -- 12 COMMISSIONER SIDNEY LINDEN: -- specific -- 13 MS. ANNA PERSCHY: The -- 14 COMMISSIONER SIDNEY LINDEN: If you have 15 a specific reference then we could clarify it, 16 otherwise -- 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: I just wanted to clarify else -- 20 something else. The Committee met on September the 5th, 21 starting at eleven o'clock, going to about 1:30, quarter 22 to 2:00, something like that. 23 A: Yes. 24 Q: Is that right? Okay. 25 COMMISSIONER SIDNEY LINDEN: Well, I
981 don't remember the time of the light armoured vehicle 2 preparations. I don't recall the specific time. 3 MS. ANNA PERSCHY: I could turn it up. 4 It's not really that significant. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: I simply wanted to know with respect 8 to these measures, and I can put aside the light armoured 9 vehicle for now, it doesn't really matter. 10 But I take it you weren't aware of these 11 measures that Inspector Carson had taken? 12 A: Well, Ron Fox did a general briefing 13 of us and that's reflected in the first page of my notes 14 of September 5th. 15 He just said that the OPP have a command 16 post set up in Forest and a perimeter around the Park, 17 and I think he gave us some general sense that there 18 were, you know, some additional police in the area that 19 were closely monitoring the situation. 20 That's really all. 21 Q: Fair enough. You didn't -- you 22 didn't have the specifics. But -- 23 MR. DERRY MILLAR: Just to clear it up. 24 The first mention and it's Exhibit 444(a), Tab 9 and John 25 Carson's cellular phone call with Deputy Chief Austin
991 September the 5th at 11:24 in the morning is when he 2 first asked about the light armoured vehicle and with 3 respect to the London City police. 4 And then he spoke at 11:27. This is the - 5 - I think the meeting started at eleven o'clock, to Cliff 6 Logan at GMC. 7 MS. ANNA PERSCHY: It was 8 contemporaneous. 9 MR. DERRY MILLAR: But the question was, 10 did you know what he had done when you started the 11 meeting on September the 5th. That did -- this had not 12 even been started at eleven o'clock on September the 5th. 13 COMMISSIONER SIDNEY LINDEN: That's fine, 14 thank you, Mr. Millar. 15 MS. ANNA PERSCHY: I believe there had 16 been some prior references to it. I may be mistaken in 17 that regard; it doesn't matter. I withdrew that portion 18 of the question, it really -- 19 COMMISSIONER SIDNEY LINDEN: Okay. 20 MS. ANNA PERSCHY: It's not that 21 significant. 22 COMMISSIONER SIDNEY LINDEN: Okay. 23 24 CONTINUED BY MS. ANNA PERSCHY: 25 Q: Did you understand that a situation
1001 like this was not entirely predictable and could escalate 2 and that the OPP had to be ready to deal with whatever 3 may occur? 4 You understood that in a general way? 5 A: Yes, in a general way. 6 Q: And for the same reasons that these 7 sorts of situations are not entirely predictable, it 8 would be prudent for the Inter-ministerial Committee to 9 have looked at all of the available legal options, right? 10 A: Yes, we looked at all -- all the 11 available legal options. 12 COMMISSIONER SIDNEY LINDEN: That's what 13 she said they did. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: And we've heard evidence from 17 Inspector Carson that even on September 5th he was 18 concerned about a longer timeframe for an injunction. 19 Did you know that on September 5th? 20 A: You mean he was concerned? 21 Q: He was concerned about a longer 22 timeframe for an injunction and if it was going to take 23 two (2) weeks he had some concerns about that? 24 MR. MURRAY KLIPPENSTEIN: Commissioner, 25 that may be an important point and My Friend may be
1011 summarizing evidence which in it's detail may be a little 2 different than what's she's saying and I'm just concerned 3 about the accuracy of that. 4 COMMISSIONER SIDNEY LINDEN: But that's a 5 problem; that's right. 6 MS. ANNA PERSCHY: I'll -- I'll just pull 7 it out -- 8 COMMISSIONER SIDNEY LINDEN: I know 9 you're trying to get to the point and you're summarizing 10 it, but when doing so it may be inaccurate. 11 MS. ANNA PERSCHY: Fair -- fair enough. 12 I'll -- I'll turn it up. 13 It's Inspector Carson's testimony on May 14 17th, 2005 -- 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MS. ANNA PERSCHY: -- page 172. And at 17 page 171 he's referring to the fact that he -- he wasn't 18 aware of the different types of injunctions, particularly 19 in terms of the issue of ex parte notice, et cetera, but 20 he goes on -- at page 172 the question is: 21 "So you did -- at this time you had no 22 idea what the differences were? 23 A: I didn't really appreciate the 24 difference. My big concern here was 25 that we needed an injunction and I was
1021 starting to get a little anxious here 2 when I started hearing discussion 3 about, well, we're not sure which order 4 we're going to get. Is it going to be 5 or take a longer period of time to get 6 it? And they started using times -- 7 timelines like two (2) weeks. 8 Certainly it caught my attention very 9 quickly and so I started to challenge 10 them as to, wait a minute, what's going 11 on? Like are they serious about this 12 or is this -- or are they not serious 13 about it? And if it's going to take us 14 two (2) weeks to get it, then we need 15 to make sure media releases start 16 reflecting the timelines and you know 17 the -- and start doing some appropriate 18 information work to apprise the public 19 as well." 20 COMMISSIONER SIDNEY LINDEN: What was the 21 context of that? In other words, what time was that 22 conversation and how did that come out? 23 MS. ANNA PERSCHY: My -- my apologies, 24 yes. At page 170 this -- this starts out with a 25 reference in the scribe notes at 13:32 and --
1031 COMMISSIONER SIDNEY LINDEN: On what 2 the -- 3 MS. ANNA PERSCHY: -- a notation with Ed 4 Vervoort of MNR indicating that -- that the Blockade 5 Committee was still meeting. 6 COMMISSIONER SIDNEY LINDEN: Okay. Thank 7 you. 8 MS. ANNA PERSCHY: And -- and then the 9 reference to the two (2) kinds of injunctions, the -- the 10 twenty-four (24) hour emergency one or one that would 11 take a couple of weeks. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 MS. ANNA PERSCHY: My apologies, I should 14 have provided that. 15 COMMISSIONER SIDNEY LINDEN: Now, the 16 question? 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: The question for this Witness was: 20 Were you aware of that on September 5th, the concerns 21 with the -- with the timeframe for a longer injunction? 22 MR. DERRY MILLAR: Well, this -- the -- I 23 don't understand. He says in this passage that was just 24 read if it's going to be longer we need to create our 25 media strategy. He doesn't -- that's what he says in the
1041 passage that My Friend just read. It's only the media 2 strategy to tell the public if it's going to be longer. 3 MS. ANNA PERSCHY: Well, he also reflects 4 some concerns. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: My -- my point simply is this: Were 8 you aware of Inspector Carson's response as I've 9 indicated in -- in this transcript at the time? 10 A: No, I was not. I was not aware that 11 people were phoning from the meeting and communicating 12 this information about what was happening in the meeting 13 to people on the ground. 14 Q: Okay. 15 A: Which appears to be what was 16 happening based on what you've just -- the passage that 17 you have just read. 18 Q: And -- 19 A: But that was of course taking it 20 completely out of context because the injunction -- at 21 one (1) point I think the only comment was that a regular 22 injunction in the normal course could take up to two (2) 23 weeks. 24 I mean, we were -- we did find that we 25 could have got a regular injunction with notice before a
1051 judge on Friday so that would have been in two (2) or 2 three (3) days. 3 Q: And if I could take you to another 4 document which is Inquiry Document number 1001490. And 5 it's the transcript of an item on CBC News at noon on 6 September the 5th, and that's during the course of your 7 meeting and the announcer indicates: 8 "Here in Ontario, MNR plans to ask for 9 a Court injunction to remove a group of 10 native people from Ipperwash Provincial 11 Park." 12 And there's another transcript item just 13 below that, one hour later, again, while the Committee is 14 still meeting. Transcript of item on CBC News 1:00 p.m. 15 at September 5th, and there's the -- the comment -- the 16 third paragraph: 17 "Representatives from MNR are in Court 18 today. They want the Courts to tell 19 the occupiers to leave, but that could 20 take a day or two (2)." 21 And my question is, did you know that 22 there were reports in the media in this time, sort of 23 noon, one o'clock on Tuesday, September 5th about an 24 injunction, while the Committee was still meeting? 25 A: No. How could I have? I was in the
1061 meting and this was on the radio at the time that I was 2 in the meeting. 3 Q: I -- it's possible somebody could 4 have brought you this information during -- during the 5 meeting. But you're saying you weren't aware of it? 6 A: Right. 7 Q: Okay. 8 A: And it would appear to be inaccurate. 9 Q: The public appears to have already 10 been told about an injunction while the Committee was 11 meeting from -- from this -- from this news item? 12 A: Yes. 13 14 (BRIEF PAUSE) 15 16 Q: And the news item suggests that the 17 injunction would be brought that day, and as you've 18 indicated, that -- that appears to be inaccurate, but do 19 you know where the CBC would have obtained this sort of 20 information? 21 MR. DERRY MILLAR: Well, how can she 22 answer that question? 23 COMMISSIONER SIDNEY LINDEN: How can 24 she -- 25 MR. DERRY MILLAR: She can't answer the
1071 question. 2 COMMISSIONER SIDNEY LINDEN: I -- 3 MR. DERRY MILLAR: This is a radio report 4 during the period of time they're having the meeting. 5 Perhaps My Friend could phone up the CBC and ask say, 6 Where did -- as part of her job as Counsel, where did you 7 get the information. 8 How can this Witness answer that question? 9 COMMISSIONER SIDNEY LINDEN: I have no 10 idea -- 11 MS. ANNA PERSCHY: I just wanted -- 12 MR. DERRY MILLAR: She said it was wrong. 13 MS. ANNA PERSCHY: -- to find out if she 14 had the information. 15 COMMISSIONER SIDNEY LINDEN: Well, she -- 16 MR. DERRY MILLAR: The witness has 17 already said the information was wrong. 18 COMMISSIONER SIDNEY LINDEN: She didn't 19 know anything about it, and it's wrong. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: Did you know that MNR and the OPP had 23 spoken back in August about bringing in an injunction in 24 the event of an occupation? 25 A: I didn't know that, but it would not
1081 surprise me that they had discussed this, because they 2 always had informal discussions between the two (2) of 3 them on the ground, and an injunction was one of the 4 obvious possible mechanisms. 5 Q: Just for the purposes of the record, 6 I'd like the transcript of the news items made the next 7 exhibit. 8 OBJ MR. DERRY MILLAR: Well, I object to 9 this. 10 COMMISSIONER SIDNEY LINDEN: What -- what 11 can -- 12 MR. DERRY MILLAR: There's absolutely -- 13 firstly, it's wrong. We know that from the Witness, and 14 secondly it's -- it doesn't help anything. The witness - 15 - it didn't -- the Witness was not aware of this during 16 the time they were having their meeting. 17 The witness has said this statement is 18 wrong and with respect, I object. 19 COMMISSIONER SIDNEY LINDEN: We've been 20 very generous with respect to letting documents in as 21 exhibits, but this strikes me as a stretch that I have a 22 difficulty -- even I have difficulty making at this 23 point. 24 MS. ANNA PERSCHY: All right. I just -- 25 I just wanted to do it for purposes --
1091 COMMISSIONER SIDNEY LINDEN: Through this 2 Witness. 3 MS. ANNA PERSCHY: -- of the record. 4 COMMISSIONER SIDNEY LINDEN: But again 5 it's through this Witness that I -- or maybe somebody 6 else who can allow this to come in. 7 MS. ANNA PERSCHY: That's fine. 8 COMMISSIONER SIDNEY LINDEN: She doesn't 9 know anything about it; she says it's inaccurate. 10 MS. ANNA PERSCHY: Fine. 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: Excuse me, 15 and this is from our document base, right? 16 MS. ANNA PERSCHY: Yes. 17 COMMISSIONER SIDNEY LINDEN: So it has a 18 document number? 19 MS. ANNA PERSCHY: Yes. 20 COMMISSIONER SIDNEY LINDEN: So does it 21 need to be an exhibit at this point? It has a document 22 number. What is the document number? 23 MS. ANNA PERSCHY: Sorry, the document 24 number -- and that's fine, it's 1001490. 25 COMMISSIONER SIDNEY LINDEN: Right.
1101 MS. ANNA PERSCHY: It's one of a series 2 of media release -- media articles and searches. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: If it 7 becomes relevant we can retrieve it and make it an 8 exhibit. 9 10 CONTINUED BY MS. ANNA PERSCHY: 11 Q: At the meeting on August 2nd, 1995 12 Inspector Fox advised the Committee that when a dissident 13 group occupied the Park two (2) years earlier, they done 14 it in a ceremonial way and then it eventually lost 15 interest and left. Do -- do you recall him saying that? 16 A: Yes. 17 Q: And at the meeting on September 5th, 18 1995 once the occupation had taken place, Inspector Fox 19 referred to there being men, women and children at the 20 Park. Do you -- do you recall that? 21 A: Yes. 22 Q: And do you recall MNR representatives 23 asking why the individuals who were cutting down trees 24 couldn't be charged with mischief? 25 A: I recall a general discussion about
1111 that. 2 Q: Okay. And I take it that you didn't 3 assume that if the police attempted to arrest the 4 occupiers who were identified as responsible for cutting 5 down trees, that they would put their women and children 6 at the forefront? You -- you didn't just assume that? 7 A: No, I didn't assume that. I hadn't - 8 - I mean I don't know that I had even turned my mind to 9 that question. 10 Q: Fair enough. At the meeting on 11 September 6th, I think you testified that you had seen 12 some of the press clippings, whether or not it was the 13 ones that I -- that I turned you to, that there was some 14 time taken at the outside of the meetings to review some 15 of the press clippings? 16 A: Well, somebody would have handed me a 17 pile of clippings. 18 Q: And you knew from the briefing on 19 September 6 that the situation had escalated from the 20 previous day? 21 A: You mean the briefing at the meeting? 22 Q: Yes. 23 A: Of the Interministerial Committee. 24 Well we had heard at that meeting that there three (3) 25 warrants for arrest for three (3) incidents. For example
1121 that's -- so there were those charges, there were those 2 Criminal Code charges. 3 Q: And there had been a fire set on the 4 road, the rocks thrown at -- 5 A: Hmm hmm. 6 Q: -- police vehicles. 7 A: Yes. 8 Q: That -- that sort of information? 9 And you had also been told, as part of the update, that 10 Inspector Carson had indicated that the use of alcohol 11 was quite high. 12 A: Yes. 13 Q: You had that information? And you 14 were told at the Interministerial Committee meeting on 15 September the 6th that MNR staff were being peppered with 16 calls from local residents expressing sort of concern, 17 fear, anger -- 18 A: Yes. 19 Q: -- you were aware of that? And I 20 appreciate that you didn't know this at the time at the 21 meeting on September 6th, but did you learn later, either 22 that day or the next day, that on the evening of 23 September 6th a number of local people, I think about a 24 hundred (100) or so, had gathered down the road from the 25 Park and were threatening to march on the Park?
1131 Were -- were you made aware of that? 2 A: I think I was made aware of that. I 3 don't know the numbers but that there was some local 4 residents who were upset and prepared to march on the 5 Park. 6 Q: And local representatives of the 7 Ministry of Natural Resources also expressed concern for 8 the safety of their staff at this Committee meeting, 9 right? 10 A: Yes. 11 Q: And I take it that you considered 12 that to be relevant information and you -- you took that 13 into account? 14 A: Yes. The safety of all people is 15 always a concern. 16 Q: And in fact that both these meetings, 17 both on the 5th and on the 6th, were representatives or 18 some representatives of MNR who were in the area, 19 expressed the number of concerns about the situation; 20 they wanted to know what could be done, right? 21 A: Yes. The MNR local staff were very 22 concerned. 23 Q: And at these two (2) meetings some of 24 the local MNR representatives wanted to have the 25 occupiers removed, right?
1141 A: Yes. 2 Q: And you were told that there were 3 reports of automatic gunfire and that information was 4 confirmed during the meeting? 5 COMMISSIONER SIDNEY LINDEN: No -- 6 THE WITNESS: I -- I don't believe -- 7 MS. ANNA PERSCHY: That's what you were 8 told? 9 THE WITNESS: -- it was confirmed. I 10 believe that Ron Fox said that he would check because he 11 did not believe that there was automatic gunfire so that 12 he would try to confirm whether that was true or not. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: And I believe it was his testimony 16 that he left the room and that he did confirm the reports 17 of Inspector Carson? 18 COMMISSIONER SIDNEY LINDEN: No, I don't 19 think that's the testimony. 20 THE WITNESS: I don't. 21 COMMISSIONER SIDNEY LINDEN: I don't 22 remember that being the case but so far, Ms. Perschy, 23 what you're doing is repeating evidence that we already 24 have so I'm just reminding you that with the exception of 25 this last part that's not accurate, all you're doing is
1151 repeating evidence that we have and that's not being -- 2 not advancing our situation. 3 MS. ANNA PERSCHY: I -- I'm trying to get 4 there. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: Did you know that Mr. McCabe 9 confirmed the reports with Inspector Carson in the 10 afternoon and that the affidavit in support of the 11 application for the injunction did in fact refer to 12 reports of a hundred (100) to a hundred and fifty (150) 13 rounds of gunfire? 14 A: I don't recall. 15 Q: And I take it that -- well, let me 16 just turn back. 17 18 (BRIEF PAUSE) 19 20 Q: If you could just turn to your notes 21 of September 6th page 3 we have the initial reference to 22 Peter Sturdy of MNR saying that this is the reference to 23 the automatic gunfire. The staff say they heard 24 automatic gunfire during night and that the SG will check 25 and then a couple of pages later at page 5 --
1161 A: Okay. That was on page 2, actually, 2 the -- your first reference. 3 Q: Sorry, yes, page 2. And then further 4 along on the page which has, "John Carson Incident 5 Commander," in the top right corner, further below that 6 there's a notation, "Peter Sturdy - has confirmed reports 7 of gunfire." 8 COMMISSIONER SIDNEY LINDEN: Gunfire? 9 MS. ANNA PERSCHY: Yes. 10 COMMISSIONER SIDNEY LINDEN: As opposed 11 to automatic gunfire? 12 MS. ANNA PERSCHY: And -- and I'll come 13 to that. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: Do you -- do you recall that there 17 was at least a confirmation with respect to the -- the 18 reports of gunfire? 19 A: Well, that was Peter Sturdy again 20 saying that there was gunfire. 21 MR. DERRY MILLAR: I don't think that you 22 can take... 23 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 24 Tuck-Jackson. 25 MS. ANDREA TUCK-JACKSON: I only wanted
1171 to rise because the issue is that Ron Fox was to go and 2 confirm that -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MS. ANDREA TUCK-JACKSON: -- and that 5 didn't occur actually -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. ANDREA TUCK-JACKSON: -- where he 8 connected with Mr. Carson until after the meeting had 9 concluded. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MS. ANDREA TUCK-JACKSON: So this isn't 12 an OPP verification and I just want to make sure the 13 record is clear on that. 14 COMMISSIONER SIDNEY LINDEN: Thank you. 15 MS. ANNA PERSCHY: My recollection was 16 that Ron Fox called or spoke to Inspector Carson on two 17 (2) occasions, one (1) was at around eleven o'clock on 18 September the 6th and I believe he did raise with 19 Inspector Carson the issue of gunfire at that point and 20 that was earlier than the -- the subsequent phone call 21 after the Inter-ministerial Committee Meeting, but I 22 won't waste time on that. I think there's a record on 23 that. We can -- we can -- we can turn to it later. 24 25 CONTINUED BY MS. ANNA PERSCHY:
1181 Q: But I -- I take it that you'd agree 2 with me that reports of gunfire in the area of the Park, 3 whether or not the guns were automatic that's a cause for 4 concern in these circumstances? It's information? 5 A: I agree that reports of gunfire would 6 be a cause of concern. That was information that we were 7 seeking to have confirmed from the OPP because there was 8 some question as to whether the reports from MNR were 9 accurate or not. 10 Q: And -- and subsequently the OPP did 11 confirm that there were these reports? 12 You were aware of the fact that there was 13 some confirmation from the OPP with respect to these 14 reports? 15 MR. MURRAY KLIPPENSTEIN Commissioner, 16 I'm having real concern with this. My recollection is 17 that Chris Coles and Ron Fox were speaking very 18 disparagingly about these reports and about MNR reports 19 and accuracy generally, so I -- if I -- if My Friend 20 wants to be specific -- 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 MR. MURRAY KLIPPENSTEIN -- that may be 23 helpful but I don't certainly accept the accuracy of her 24 summary. 25 COMMISSIONER SIDNEY LINDEN: Thank you
1191 and Ms. Jackson, you have a comment? 2 MS. ANDREA TUCK-JACKSON: Yes, Mr. 3 Commissioner. I've confirmed to my own notes. There's 4 actually a scribe entry for 11:12 a.m. on September the 5 6th which reads: 6 "Ron Fox returned John Carson's call. 7 Advised him that he was not aware of 8 gunfire when he talked to him earlier 9 in the day. Updated reference shots 10 fired overnight in bush." 11 But in my respectful submission, there was 12 never any true confirmation it was automatic, simply 13 gunfire. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MS. ANNA PERSCHY: No it was -- I was 16 simply making a point with respect to gunfire as such. 17 COMMISSIONER SIDNEY LINDEN: Yes, but the 18 point you -- 19 MR. DERRY MILLAR: Well, the point of the 20 question -- 21 MS. ANNA PERSCHY: Well -- 22 COMMISSIONER SIDNEY LINDEN: -- keep 23 making is a point -- 24 MR. DERRY MILLAR: -- it's about 25 automatic gunfire.
1201 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DERRY MILLAR: And if -- My Friend 3 has to be careful -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. DERRY MILLAR: And that's incorrect. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. DERRY MILLAR: She was talking about 8 automatic gunfire. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MS. ANNA PERSCHY: And I stand corrected 11 and my question to this Witness was simply that whether 12 or not it was automatic, reports of gunfire would be a 13 concern. 14 COMMISSIONER SIDNEY LINDEN: She's 15 already said that -- 16 MS. ANNA PERSCHY: And that -- 17 COMMISSIONER SIDNEY LINDEN: She said 18 that in chief and yes. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: And it was because of all of the 22 information provided as to what was going on locally at 23 Ipperwash, that the consensus of the Committee was to 24 seek an injunction as soon as possible, right? 25 A: Yes.
1211 Q: Now Scott Hutchinson testified that 2 he gave some information at the meeting regarding the 3 applicable sections under the Criminal Code and explained 4 how someone who was charged, could breach the terms of 5 their recognisance and return to the Park. 6 And I take it that, as a general matter, 7 you recall his giving that sort of advice -- 8 A: Yes. 9 Q: -- at the meeting? 10 COMMISSIONER SIDNEY LINDEN: Again, Ms. 11 Perschy, you've asked the question. 12 Is there a question that comes from that, 13 or is that simply repeating evidence that we already 14 have? 15 MS. ANNA PERSCHY: Well, we'd heard -- 16 COMMISSIONER SIDNEY LINDEN: What you 17 just did repeats the evidence that we've had. 18 MS. ANNA PERSCHY: We'd heard from Scott 19 Hutchinson in that regard. I'm not sure that this 20 Witness had spoken as to that being raised -- 21 COMMISSIONER SIDNEY LINDEN: Okay. 22 MS. ANNA PERSCHY: --at this meeting by 23 her -- 24 COMMISSIONER SIDNEY LINDEN: Well, I -- 25 MR. DERRY MILLAR: I put --
1221 MS. ANNA PERSCHY: -- or by him but she 2 recalled that. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 I don't recall that -- 5 THE WITNESS: Well, I believe I did cover 6 it in the examination in-chief. 7 COMMISSIONER SIDNEY LINDEN: I thought 8 she did, but if she didn't then I stand corrected. I 9 thought she did in her evidence, but if she didn't -- 10 MS. ANNA PERSCHY: But I -- 11 MR. DERRY MILLAR: She did. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 MS. ANNA PERSCHY: -- well, I thought she 14 hadn't. 15 COMMISSIONER SIDNEY LINDEN: Then let's 16 move on. 17 MS. ANNA PERSCHY: My apologies. 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: You were asked about Catherine Hunt's 21 comments regarding the protocol of the Solicitor General? 22 A: Yes. 23 Q: Right. And if others testify, as I 24 anticipate that they will, that this comment was made in 25 the context of who within government should be the
1231 spokesperson now that charges had been laid, you wouldn't 2 have any recollection to the contrary I take it; that 3 that was the context of the reference to that protocol? 4 5 (BRIEF PAUSE) 6 7 A: I can't remember the exact context. 8 When you mean -- when Catherine Hunt talked about the 9 separation of the -- or the fact that police operations 10 can't be directed by government? 11 Q: Yes. 12 A: I think that there are people who's 13 notes describe that in detail, subsequent witnesses who 14 will be a in better position to answer that question. 15 Q: And I was simply asking if you had 16 any recollection as to the context of that comment? 17 A: No, I can't recall the context. 18 Q: Okay. 19 20 (BRIEF PAUSE) 21 22 Q: And we were referring to Scott 23 Hutchinson giving some advice with respect to the 24 applicable sections under the Criminal Code, and you 25 testified about your notes regarding the question of MNR
1241 asking the OPP to remove the occupiers and Scott 2 Hutchinson's advice in that regard; you gave some 3 testimony about that? 4 A: Yes. 5 Q: Right. And I believe you -- you 6 didn't have a specific recollection, but you were relying 7 on -- on your notes that Scott Hutchison had testified -- 8 had -- had advised at this meeting that the MNR, the 9 Government, like any other property owner was entitled to 10 ask the OPP to take action but couldn't direct them. 11 A: Yes. I believe I read through this 12 whole section of my notes in the direct examination. 13 Q: Now Scott -- 14 A: It's on page 6. 15 Q: Scott Hutchison testified that his 16 recollection was that the advise that he gave was 17 accepted and that the rest of the conversation proceeded 18 with that parameter established in terms of what could or 19 couldn't happen. 20 And -- and I take it that -- that -- 21 that's -- you don't recall anyone disagreeing with Scott 22 Hutchison's advice? 23 A: Right. 24 Q: And Mr. Hutchison testified that he 25 didn't recall anyone suggesting that the Government could
1251 direct the OPP with respect to operational decisions and 2 that he would have remembered such a suggestion. And I 3 take it that you don't recall anyone suggesting that the 4 Government could direct the OPP with respect to 5 operational matters? 6 A: Well I think that prior to Scott 7 clarifying this point, that there had been a suggestion, 8 you know, Deb Hutton had said that, you know, MNR as -- 9 as the property owner could ask the OPP to remove people. 10 Then Scott explained that the rule is that 11 government cannot direct the actions of the OPP. And 12 that seemed to be the end of that discussion in terms of 13 no one then contradicting Scott because he clearly was 14 the expert on this issue. 15 Q: Fair enough. And you testified that 16 you don't recall who made a comment that -- the statement 17 that MNR had requested the OPP to remove occupiers, that 18 that kind of comment could be part of a communications 19 message? 20 A: Sorry I'm -- I'm sorry -- I was 21 checking my watch and I've lost focus on what your 22 question was -- 23 Q: My apologies. 24 A: -- perhaps you could repeat it. 25 Q: If you just turn to your notes at
1261 page 7 -- it's -- 2 A: Yes. 3 Q: -- it's the -- some of the comments 4 that we've just referred to: 5 "Deb has MNR. Asked OPP to remove 6 them -- 7 A: Yeah that's on page 6 but, yes. 8 Q: Sorry. 9 A: On page 6. And as I said that was 10 the section that I read in in its entirety in my 11 examination-in-chief. 12 Q: And I was just clarifying that the -- 13 the reference just below that could have that as 14 communication message: 15 "MNR has formerly asked that they 16 remove them." 17 You testified that you don't recall who 18 said that. 19 A: Correct. 20 Q: Ms. Hutton will testify I anticipate, 21 that she would have suggested that as a communication 22 message and does that assist your recollection? 23 A: Well it's quite possible that she 24 did. 25 Q: And I anticipate that she'll testify
1271 that she would have been concerned, she would have 2 expressed concerns that any communication messages not 3 appear inconsistent with the policy of no government 4 direction of police operations. 5 Do you recall anyone making a comment 6 along those line? 7 A: I don't recall her making that 8 comment. Q: And I take it that you don't recall 9 any comments made by Ms. Hutton at this meeting other 10 than what you've attributed to her in your notes, right? 11 A: Correct. 12 Q: Could you turn to Tab 29 of 13 Commission counsel's documents, please? 14 COMMISSIONER SIDNEY LINDEN: I don't like 15 to keep Ms. Jai on the stand for too long. Could you 16 give me some indication of how long you might be? 17 If we can continue -- I'd like you to 18 finish before lunch. You indicated you would be half a 19 day. You've gone half a day including the part of 20 yesterday. 21 So can you give me some idea where we are? 22 MS. ANNA PERSCHY: Yeah. It's taken me a 23 little bit longer than I anticipated. I don't have much 24 left but I certainly -- if -- if you wanted to break at - 25 - at midday as I understand is the custom, I'm not going
1281 to be finished within the next fifteen (15) minutes. 2 But I don't anticipate being -- being much 3 longer after we break for lunch. 4 COMMISSIONER SIDNEY LINDEN: Well, are 5 you all right to continue a bit longer or would you like 6 to take a short break now and then continue? 7 THE WITNESS: I'm -- I'm all right to 8 continue. I am concerned about the amount of time given 9 that as you know -- 10 COMMISSIONER SIDNEY LINDEN: Well, that's 11 my concern. I've got to worry about that, but what I've 12 got to worry about is if you're all right. 13 THE WITNESS: I'm okay for now. 14 COMMISSIONER SIDNEY LINDEN: If we can 15 continue a little longer then what I would like, if it's 16 possible, for you to complete your cross-examination 17 before we break for lunch, if it's possible. So, we'll 18 try to continue until you are able to finish. 19 MS. ANNA PERSCHY: I'll try to be brief, 20 Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: Tab 29 is Document Number 1011762. I 25 believe it's been made Exhibit P-653 and --
1291 A: Yes, I have that. 2 Q: -- if you can -- if you can turn to 3 the paragraph that's in parentheses, that begins, "It was 4 agreed at the meeting." 5 A: Yes. 6 Q: Now, there was information at this 7 meeting on September 6th about, as we've just reviewed, 8 the applicable sections of the Criminal Code, what the 9 OPP could do in terms of laying charges, an update -- an 10 update as to what the OPP had done in that regard, how 11 individuals who had been charged might breach their 12 recognizance, right, but there was that sort of 13 information at this meeting? 14 A: Yes. 15 Q: And there was also some discussion 16 about the content of communication messages. 17 A: Yes. 18 Q: I think you referred to Tim McCabe 19 discussing the message at the meeting and wondering if it 20 might affect the injunction and ultimately concluding 21 that it didn't? 22 A: Yes. 23 Q: There -- there was some reference in 24 that regard? 25 I suggest that while the issue of the
1301 Government not directing the OPP came up at the meeting, 2 that issue wasn't debated as such; that -- that wouldn't 3 be consistent with what -- what you previously referred 4 to in terms of your recollection of Scott Hutchison 5 providing the advice and the discussion continuing within 6 those parameters? 7 A: Well, my -- my note as you high -- 8 you pointed to the bracketed part near the bottom of the 9 page in this e-mail of September 6th it says: 10 "It was agreed at the meeting after 11 much discussion that the Government 12 cannot direct the OPP to lay charges 13 and although it can request that they 14 remove the occupiers how and when they 15 do so is a matter of police discretion. 16 It was also agreed that the OPP on the 17 ground are in the best position to 18 assess the risk and determine when and 19 how to act." 20 So, there was some discussion at the 21 meeting of this and as I said it was after this 22 discussion that Scott Hutchison clarified or, you know, 23 basically stated the -- the rule that the Government 24 cannot direct the OPP and I think that that was accepted, 25 but that was -- that was not the initial, I guess, view
1311 of all of the people in the room. 2 Q: Well, he -- 3 A: There was actually a discussion 4 rather than coming in with sort of consensus that this 5 was the rule. 6 Q: My -- my point simply is this, that 7 there was legal advice provided at the meeting and that 8 that advice wasn't -- wasn't disputed? Once it was 9 provided it wasn't disputed? 10 A: At least not -- not at the meeting. 11 Q: Fair enough. And -- 12 COMMISSIONER SIDNEY LINDEN: Unless 13 you're going on to another point if I'm not mistaken, 14 we've made that point already. 15 MS. ANNA PERSCHY: Yes, and I was just -- 16 COMMISSIONER SIDNEY LINDEN: Are you 17 going on to another point? 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: I was -- I was just going to -- I 21 was just going to clarify that the reference in this 22 particular e-mail isn't inconsistent with that. The 23 reference to, "much discussion," isn't inconsistent with 24 the testimony that you've just given? 25 A: Correct.
1321 Q: You testified that no on at the 2 meetings on September 5th or 6th made the comment, "Get 3 the F-ing Indians out of the Park even if you have to 4 draw guns," or words to that effect, correct? 5 A: Correct. 6 Q: No on at either meeting said that 7 weapons or other physical force should be used to remove 8 the occupiers, correct? 9 A: Correct. 10 Q: This Committee was meeting to 11 consider the possible legal options available to the 12 Government regarding the occupation of the Park and to 13 make recommendation -- recommendations regarding the 14 Government's position, right? 15 A: Yes. 16 Q: And I take it that you regarded it as 17 appropriate, therefore for the Committee to consider all 18 of the options that were discussed at these meetings on 19 August 2nd and then on -- on the 5th and 6th? 20 A: That it was appropriate for 21 government -- 22 Q: The Committee to be reviewing these 23 options? 24 A: Yes. 25 Q: And I take it that you regarded it as
1331 appropriate to have the participants at these meetings 2 ask questions or articulate their perspectives and 3 insights? 4 A: Yes. 5 Q: And no one at these meetings ever 6 said that any of these options shouldn't be discussed in 7 this forum, or with these participants? 8 A: That's correct. 9 Q: And discussion can help bring about a 10 better understanding of the issues and the options. I 11 mean that's -- that's the point of having this sort of 12 Committee meeting? 13 A: Yes. 14 Q: If you could turn to the document at 15 Tab 30 of Commission counsel's documents? 16 A: Yes, that's an e-mail dated 17 Wednesday, September the 6th, 1995 at 5:36 p.m. from me 18 to Yan Lazor, Michelle Fordyce and Frances Noronha. 19 COMMISSIONER SIDNEY LINDEN: Exhibit 20 Number 654. 21 MS. ANNA PERSCHY: Yes. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: And you referred to the second 25 portion of the e-mail but with respect to the first
1341 portion of the 2 e-mail, I take it that around 5:30 on September 6th, the 3 information that you had or that you obtained and which 4 you conveyed to Yan Lazor was that the tentative meeting 5 between the OPP and the occupiers didn't occur. 6 A: Correct. 7 Q: And that's the proposed meeting which 8 was referenced -- was referred to at the Interministerial 9 Committee meeting? 10 A: Yes. 11 Q: And as you told Mr. Lazor that 12 afternoon in this e-mail, the occupiers are not 13 interested in talking. That's -- that's the information 14 you had and that's what you conveyed to him. 15 A: Yes. 16 Q: Now you've testified as to your 17 understanding of Ron Fox's position as First Nations 18 advisor to the Ministry of Solicitor General. 19 I take it that you knew that he reported 20 to the Deputy Minister of Solicitor General? 21 A: Yes. 22 Q: And you knew that he received 23 communications from the OPP regarding Ipperwash? 24 A: Yes. 25 Q: And I -- I take it you would agree
1351 with me that you understood that it would have been up to 2 the Deputy Minister of the Solicitor General as to what 3 an advisor and her ministry should or shouldn't 4 communicate to the OPP or anyone else regarding internal 5 discussions within the Government? 6 A: I don't know what -- to what extent 7 Ron sought direction on an ongoing basis from the Deputy 8 Solicitor General. 9 Q: So you -- you didn't know? 10 A: I don't know. 11 12 (BRIEF PAUSE) 13 14 Q: Now, you -- you've testified that Ms. 15 Hutton made some comment about Aboriginals and non 16 Aboriginals being treated equally at -- at either -- it 17 wasn't clear to me if it was the September 5th or 18 September 6th meeting. 19 Did you recall giving that testimony? 20 A: Was that in my testimony in-chief? 21 Q: Yes. 22 A: Yeah. Yeah -- yes. 23 Q: And you don't have a record of what 24 precisely was said or when in -- in the meeting or either 25 of these meetings --
1361 A: Right. 2 Q: -- this comment was made? And, in 3 fact, you don't have a reference to that comment in your 4 contemporaneous notes at all? 5 A: That's true. 6 7 (BRIEF PAUSE) 8 9 Q: You testified earlier today about the 10 -- the briefing that you gave with respect to Section 35 11 and the -- that being under the constitution and that 12 being an exception to the general rule. 13 Now, I take it that you understood that 14 the statutes that you were looking at, at these meetings 15 on the 5th and the 6th, applied to Aboriginals as well as 16 everyone else, right? 17 A: You mean like the Trespass to 18 Property Act or the -- 19 Q: The Provincial Parks -- 20 A: The Provincial -- 21 Q: -- Act, et cetera? 22 A: Yes. 23 Q: And I take it that you understood 24 that as a matter of law, Aboriginals like everyone else, 25 are entitled to raise any possible defences which might
1371 apply? 2 A: Yes. 3 Q: And as a matter of law, that would 4 include colour of right? Legally, it's available to 5 anyone assuming the facts can make out the defence, you 6 understood that? 7 A: Yes. 8 9 (BRIEF PAUSE) 10 11 Q: And you knew -- never mind. Now if 12 you could turn to Tab 125 of Commission Counsel's 13 documents. 14 15 (BRIEF PAUSE) 16 17 A: Yes. 18 Q: This is a document on revised 19 procedures for the Aboriginal emergencies Committee. 20 A: Yes. 21 Q: And -- 22 COMMISSIONER SIDNEY LINDEN: I think 23 that's Exhibit 703? 24 MS. ANNA PERSCHY: Yes, and it's 25 Inquiry --
1381 COMMISSIONER SIDNEY LINDEN: Yes, that's 2 fine. 3 MS. ANNA PERSCHY: -- Document 1012134. 4 COMMISSIONER SIDNEY LINDEN: 34. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: Now, you indicated that you sent this 8 document to Ms. Karakatsanis and do I have it right that 9 she was the secretary to the Ontario Native Affairs 10 Secretariat? 11 A: Yes. 12 Q: And could you tell me who's 13 handwritten notations are on this document? Are they 14 your handwritten notations? 15 A: No, not mine. Perhaps Andromache's. 16 17 (BRIEF PAUSE) 18 19 Q: Could you turn to Document 1012212? 20 A: So we're leaving this document? 21 Q: For now, yes. 22 A: And what is this other document? 23 Q: This is the document -- this is the 24 document entitled, Proposed Procedures for Aboriginal 25 Emergencies, and it's dated February 14th, 1996. And the
1391 document we looked at previously, the memo, was dated 2 November 25, 1995. 3 4 (BRIEF PAUSE) 5 6 A: I'm just going to see if I have this 7 document. Okay, yes, this -- I have this document, the 8 February 14th, 1996 proposed procedures for Aboriginal 9 emergencies. 10 Q: And do I take it that this document, 11 the document of February 14th, 1996, that was a document 12 that's a more recent version of the document at Tab 125? 13 If you compare the two (2) -- 14 A: Yes. 15 Q: -- that's what it appears? I haven't 16 found in the database any more recent versions of the 17 revised procedures. 18 Do you know if there were any further 19 revisions subsequent to this one in February of '96? 20 A: I have no idea. I left the 21 Secretariat soon after that. 22 Q: Okay. I take it that you would have 23 seen the -- the more recent version in February of 1996? 24 A: Probably. I mean, if -- I believe 25 so. I did leave the Secretariat around that time. I --
1401 I did -- I know my resume says that I joined the Yukon 2 Government in the beginning of June and I left the 3 Secretariat in May, but I actually took ten (10) weeks of 4 accumulated vacation before I left, so even though I 5 formally left in May, it was actually around mid-February 6 that I left the Secretariat. 7 Q: Commissioner, I forgot to ask you. I 8 just had a question with respect to your resume, I take 9 it currently you -- you're working for the Federal 10 Government of Canada? 11 A: Yes. 12 Q: And you're dealing -- you're 13 providing advice on litigation positions which include 14 matters involving Aboriginal law that -- that relate to 15 what's going on in Ontario? 16 A: To some extent. Not -- I mean 17 basically my job is to provide policy advice to the 18 Government so that -- and we deal with all matters, all 19 litigation affecting the Crown in -- the Federal Crown in 20 Ontario as well as I'm on several national committees 21 dealing with our policy across Canada. 22 So, it -- it isn't even just focussed on 23 Ontario. So, there are -- the extent to which I can get 24 involved in any one of the, you know, tens of thousands 25 of pieces of litigation we handle, it varies enormously,
1411 there are many that I'm not involved in at all. 2 Q: Okay. Fair enough. I digress. If 3 you look at the revised procedures on February 14th, 1996 4 it appears that on page 2, The Objectives of the 5 Committee, are effectively the same objectives that 6 existed back in September of 1995. 7 A: Yes. 8 Q: And the principles governing the 9 provincial response are effectively the same? 10 A: Yes. 11 Q: And this document refers to some 12 improvements in the process that were being suggested 13 including streamlining the membership of the Committee 14 and clarifying its role, right? 15 A: Yes. 16 Q: And in that regard there's some more 17 information at page 6 and the proposal was that going 18 forward many meetings of this committee would only be 19 attended by the Premier's office, Cabinet office and 20 ministries with direct involvement? 21 A: Yes. 22 Q: And the Committee would still be 23 chaired by the secretary of ONAS or the designate and 24 would still be composed of public servants and political 25 staff.
1421 A: Yes. 2 Q: And that was part of the revised 3 procedures? 4 A: Yes. 5 MR. DERRY MILLAR: We don't just -- these 6 are draft procedures, she doesn't know what happened to 7 the procedures. 8 MS. ANNA PERSCHY: And I'm simply asking. 9 This appears to be the most recent draft. That's the 10 state of knowledge that this Witness left shortly 11 thereafter. I'm simply trying to find out where -- where 12 things were left before -- before she -- she stopped 13 working with government. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: And at page 7 there's the 17 clarification of the role of the OPP, confirmation that 18 the OPP is responsible for protecting public safety and 19 for making their own operational decisions, right? 20 A: Yes. 21 Q: That's -- that's -- that's fair. And 22 there's also a reference to communications and that the 23 OPP would advise the Deputy Solicitor General's office of 24 all developments in a timely manner and that office would 25 then advise the Chair of the Committee of all
1431 developments. 2 A: Yes. 3 Q: And there's a reference to OPP not 4 participating in committee meetings? 5 A: Yes. 6 Q: Did you know that in the past under 7 previous governments, OPP operational offices had had 8 occasion to attend committee meetings? 9 A: I believe that there had been 10 situations where we had linked in by phone some OPP 11 person on the ground to give an update on the latest 12 information. 13 Q: And -- and the draft as of February 14 '96 provided that that shouldn't occur in the future. 15 A: Correct. 16 Q: And in terms of further revisions to 17 the process, at page 9 there's the addition of the 18 assignment of the lead ministry and that would be done on 19 the advice of either the Premier's office or Cabinet 20 office and that that lead ministry would have primary 21 responsibility for government communications and this 22 document also provides some further detail regarding how 23 communications were to take place? 24 A: Yes. 25 Q: There -- there's some information at
1441 page 11 in that regard. 2 And at page 12, that refers to potential 3 legal action and includes references to injunctions and 4 charges under Statute such as the Trespass to Property 5 Act? 6 A: Yes. 7 Q: And then, finally, at page 15 there's 8 the title, "Ending Legal Occupations, Blockades, et 9 cetera, Once They are in Place." 10 A: Yes. 11 Q: And if you can turn to the fourth 12 bullet there's reference: 13 "Do not negotiate substantive issues 14 while a blockade or occupation is 15 underway as it encourages: 16 Bullet: 17 "Illegal action." 18 And then a second bullet: 19 "Queue jumping." 20 A: Yes. 21 Q: And do I take it that you understood 22 because you were involved in -- in some of these 23 revisions and in fact... 24 25 (BRIEF PAUSE)
1451 Q: ...the document at Tab 125, the 2 document 1012134, the one from November 27th/95? 3 A: Oh, yes. 4 Q: That one, if you turn to page 14. 5 A: Yes. 6 Q: It also states: 7 "With respect to not negotiating 8 substantive issues." 9 A: Yeah, it's the same. 10 Q: It's the same. 11 A: It's got exactly the same language. 12 Q: Yes. And I -- I take it that that's 13 a reference to the concerns that were discussed earlier? 14 A: Yes. 15 Q: Thank you very much, Ms. Jai, those 16 are all of my questions. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much, Ms. Perschy. Thank you. 19 MS. ANNA PERSCHY: Oh, yes, my apologies. 20 Thank you. Mr. Millar has just reminded me that I should 21 make the February 14th, 1996 proposed procedures made the 22 next exhibit. 23 THE REGISTRAR: P-708, Your Honour. 24 COMMISSIONER SIDNEY LINDEN: 708. P-708. 25
1461 --- EXHIBIT NO. P-708: Document 1012212. 2 Confidential draft: Proposed 3 procedures for Aboriginal 4 emergencies, February 14/'96. 5 6 COMMISSIONER SIDNEY LINDEN: Thank you 7 very much Ms. Perschy, I know you made an effort to bring 8 it to a conclusion in time for us to have our lunch 9 break. So we'll break now and come back after lunch. 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER SIDNEY LINDEN: You are 14 finished. 15 MS. ANNA PERSCHY: Yes. Oh, absolutely. 16 My apologies. 17 COMMISSIONER SIDNEY LINDEN: I didn't 18 want you to end abruptly, but I didn't want you to end 19 without finishing. You are finished? 20 MS. ANNA PERSCHY: No, no, no. I -- I 21 have finished. Thank you very much, Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Okay. Then 23 we will have our lunch break now. 24 THE REGISTRAR: This Inquiry stands 25 adjourned until 1:15.
1471 --- Upon recessing at 12:04 p.m. 2 --- Upon resuming at 1:17 p.m. 3 4 THE REGISTRAR: This Inquiry is now 5 resumed. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 7 Jackson. 8 MS. ANDREA TUCK-JACKSON: Good afternoon, 9 Mr. Commissioner. I can indicate, sir, that I should be 10 about five (5) minutes. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 13 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 14 Q: Good afternoon, Ms. Jai. 15 A: Good afternoon. 16 Q: My name is Andrea Tuck-Jackson and 17 I'm going to ask you some questions on behalf of the OPP. 18 And I would like to begin if I could 19 please, would you turn to Tab 27 of the Commission 20 materials. For the purposes of the record, it's been 21 marked as Exhibit P-515 and it's Document Number 3001088. 22 These are your notes that I understand you 23 made contemporaneous with a conversation that you had 24 with then Inspector Ron Fox -- 25 A: Yes.
1481 Q: -- on the afternoon of September the 2 6th, 1995. 3 A: Yes. 4 Q: And I'm interested, Ms. Jai, in the 5 two (2) initial entries of those notes. And you've told 6 us already that you weren't able to reduce a verbatim 7 account in the notes. What you were doing was capturing 8 the gist of the information that Inspector Fox was 9 conveying to you. 10 Do I have that correct? 11 A: Yes. 12 Q: All right. We'll see at the outset 13 of your notes that you indicate: 14 "Tim has asked for someone from OPP to 15 give viva voce evidence before Judge 16 today in Sarnia." 17 And then the very next line is: 18 "Now OPP Commissioner is involved. 19 Decisions will be made at his level." 20 Now, what I'm interested in, Ms. Jai, is 21 you're use of the term 'OPP Commissioner'. Because when 22 Inspector Fox and, frankly now Superintendent Fox, 23 testified it was his recollection that what he had said 24 to you was that the Chief was involved in making 25 decisions.
1491 And that those decisions related for 2 example, who would be the individual who would be -- 3 MR. PETER ROSENTHAL: I don't believe he 4 quite said that it was his recollection. I believe that 5 he said that he wouldn't have been speaking to the 6 Commissioner about operational matters. The Commissioner 7 wouldn't have been involved in operational matters. So it 8 might -- it must have been a mistake, it must have been 9 Coles. 10 I don't believe he said, and perhaps we 11 have turn up the transcript to see exactly what Mr. Fox 12 said. 13 MS. ANDREA TUCK-JACKSON: What I was 14 trying to do, Mr. Commissioner, was provide an account 15 that -- that when Superintendent Fox indicated that he'd 16 used the word 'Chief' during the conversation as -- 17 MR. PETER ROSENTHAL: With respect I 18 don't -- I don't believe that he -- it would be better to 19 turn to the transcript. May I have a moment, I will find 20 it. Maybe Ms. Tuck-Jackson has a copy of it. 21 I don't believe he -- he recalled any 22 word. My recollection is that he indicated he -- he 23 wouldn't have been saying the Commissioner would be 24 involved because the Chief -- the Commissioner's not 25 involved in operational matters.
1501 I believe I have a copy of it -- 2 COMMISSIONER SIDNEY LINDEN: If you have 3 the chance -- would it be helpful to have the -- if 4 you're going to -- 5 MS. ANDREA TUCK-JACKSON: It would. I'm 6 not sure a great deal turns on the point that My Friend 7 Mr. Rosenthal is making. I -- I -- my point and I'm 8 happy that -- that My Friend try and obtain that and I 9 don't have the exact reference at hand unfortunately, 10 sir. 11 MR. PETER ROSENTHAL: I will have it in a 12 moment, Mr. Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Let's just 14 wait a few moments for the exact quote and then we'll... 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: Everybody 19 searching the transcripts to see who can turn it up 20 first. 21 MR. DERRY MILLAR: Yeah, it start -- 22 COMMISSIONER SIDNEY LINDEN: We got a 23 winner. 24 MR. DERRY MILLAR: On page 135, 134: 25 "Q: Can you tell us --
1511 A: Now, Opp Commissioner is involved--" 2 Second line of the line bullet: 3 "Q: Now OPP Commissioner is involved 4 a decision will be made at his level." 5 Close quote. 6 Page 135 it says -- excuse me, page 134 7 line 18: 8 "Q: Can you tell us -- 9 A: ..." 10 Where she has a bullet in the second -- 11 it's a line bullet, quote: 12 "Now OPP Commissioner is involved, 13 decision will be made at his level." 14 Close quote. 15 I believe that would be the OPP field 16 commander who would have been Chris Coles. 17 "Q: And then -- why is that, do you 18 believe that? You likely indicated it 19 was the field commander? 20 A: Having an understanding of the way 21 the organization works, Commissioner 22 wouldn't ordinarily be involved in that 23 type of day-to-day work." 24 COMMISSIONER SIDNEY LINDEN: Okay. Do 25 you want to ask the question now?
1521 MS. ANDREA TUCK-JACKSON: I do. I thank 2 My Friend very much for doing that. 3 MR. PETER ROSENTHAL: Thank you, too. 4 5 CONTINUED BY MS. ANDREA TUCK-JACKSON: 6 Q: My point, Ms. Jai, is as follows. Is 7 it possible that in the conversation Mr. Fox may have 8 used the word, "chief" for example, and you assumed that 9 he was referring to the Commissioner? 10 A: It's possible but unlikely because I 11 do have an understanding of who the OPP Commissioner was; 12 that would have been O'Grady and I guess I feel that that 13 -- if I wrote that, that that is what I -- what I 14 understood at the time. 15 Q: All right. 16 A: I could have been confused or 17 mistaken but that was my understanding at the time. 18 Q: That's fair and as we've -- we've 19 heard we've had the benefit of what Inspector Fox 20 intended to communicate at the time. 21 A: Hmm hmm. 22 Q: Thank you. That's very fair of you. 23 What I want to do now is focus on the -- 24 the meetings of September the 5th and the 6th -- 25 A: Hmm hmm.
1531 Q: -- and you've provided us with an 2 account with the benefit of your notes to refresh your 3 memory as to Ron Fox's participation at those meetings 4 and I just want to establish a number of general 5 propositions through you, if I may. 6 It's quite clear and I trust that no doubt 7 you'd agree that in your presence he vigorously disagreed 8 with some of the views that Deb Hutton was expressing at 9 the meeting? 10 A: Yes. 11 Q: And I trust that he didn't by words 12 or his actions appear to be in any way inhibited by Ms. 13 Hutton? 14 A: Well, I think we were all inhibited 15 by the fact that within government there's sort of 16 certain protocols in terms of behaviour at meetings. 17 So, you know, normally we all behaved 18 politely and we all express ourselves in a certain way. 19 So, as having sat in on many government meetings I mean 20 there is a whole culture around meetings and what people 21 do at meetings which may only reflect, sort of, the tip 22 of the surface in terms of what they're thinking or, you 23 know, that people may be saying one (1) thing but 24 restraining themselves because they know it's not the 25 appropriate thing to say at that type of meeting.
1541 Q: I understand the dynamic you're 2 trying to convey. My point, Ms. Jai, however is that he 3 didn't appear to be inhibited in expressing his view to 4 Ms. Hutton. 5 A: No more so than anyone at a meeting 6 following government meeting protocol would be. 7 Q: Thank you. 8 COMMISSIONER SIDNEY LINDEN: Did you have 9 an objection or have you changed your mind? 10 I didn't want to not recognize you, Ms. 11 Perschy. 12 MS. ANNA PERSCHY: Sorry, Mr. -- Mr. 13 Commissioner. My only concern was that this Witness was 14 going on to describe, sort of, the perceptions of other 15 people and I had a concern about, sort of, general 16 comments being made as to how other people may have 17 reacted. I mean she -- she can speak to her own 18 reaction -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MS. ANNA PERSCHY: -- but -- but I just 21 have a concern and would ask that people ask very narrow 22 questions which I think My Friend -- 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 MS. ANNA PERSCHY: -- was trying to do in 25 terms of --
1551 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MS. ANNA PERSCHY: -- what was seen, but 3 I think the -- the Witness also needs to be careful to -- 4 to -- 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 MS. ANNA PERSCHY: -- restrict herself to 7 -- to her own views. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 MS. ANDREA TUCK-JACKSON: Thank My 10 Friend. 11 12 CONTINUED BY MS. ANDREA TUCK-JACKSON: 13 Q: You'd agree with me that he 14 vigorously advanced the position of the OPP and I'm going 15 to go into what that position was in a moment but he 16 didn't appear to be reluctant to express the position of 17 the OPP at that meeting? 18 A: No, he didn't appear to be reluctant. 19 I do feel that he's expressed his views like on -- in 20 one-on-one discussions with me more openly or vigorously 21 than he would have at the meeting for example. 22 Q: And that's a function of the culture 23 of meeting. 24 A: Right. 25 Q: I understand. All right. You'd
1561 agree with me that at the meeting, I'm going to suggest 2 that he advocated three (3) very clear points. 3 I'm going to suggest to you that he 4 advocated for a slow and cautious approach. 5 A: Yes. 6 Q: I'm going to suggest to you that he 7 advocated for an approach that involved communication and 8 negotiation with the occupiers in order to diffuse the 9 tension of the situation onsite? 10 A: I believe so. I mean, I don't know 11 if he put it together as clearly as you have, but 12 certainly he advocated communication with the occupiers. 13 Q: Those were the sentiments he was 14 expressing? 15 A: Yeah. yes. 16 Q: And finally and you've already made 17 this point, but again I want to crystallize it so that 18 it's perfectly clear in everybody's mind, that leaving 19 aside very specific incidents that might attract 20 intervention under the Criminal Code, he was making it 21 very clear that the OPP did not want to move upon those 22 protesters in the absence of an injunction? 23 A: Yes. 24 Q: Thank you. And I'm going to suggest 25 to you, also, now that we know what he did I'm going to
1571 suggest that he did not do the following. 2 A: Hmm hmm. 3 Q: And you'd agree with me, I trust, 4 that by his words and his actions, he did nothing to 5 suggest that he was seeking direction from the Committee 6 members on operational matters that affected the police? 7 A: I agree. 8 Q: And I trust that you would also agree 9 that nothing from his actions or his words suggested that 10 he was taking direction from the Committee members with 11 respect to operational matters? 12 A: I agree. 13 Q: And that was abundantly clear to you 14 from those two (2) meetings? 15 A: Yes. 16 Q: Thank you, Ms. Jai. Those are my 17 questions. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much, Ms. Jackson. 20 I believe Ms. Clermont has indicated an 21 intention to cross-examine and she's next, on behalf of 22 the Municipality of Lambton Shores. Yes...? 23 MS. JANET CLERMONT: Thank you, Mr. 24 Commissioner. We have no questions. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
1581 I think we're up to Mr. Klippenstein. The 2 time estimate was made when you weren't here, Mr. 3 Klippenstein. Perhaps you'd give us some indication of 4 what you estimate might be. 5 Mr. Alexander did his -- his best, I 6 presume. 7 MR. MURRAY KLIPPENSTEIN I apologise, 8 Commissioner. I will be both longer and more boring than 9 the last two (2) Counsel. I think that over the time, 10 since we gave you the last estimates, we've been working 11 to reduce the time, working with other Counsel including, 12 especially, ALST Counsel and -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. MURRAY KLIPPENSTEIN -- some of the 15 questions so far have reduced our time so I may be almost 16 certainly the rest of the day and probably in total a 17 day, hopefully it's -- hopefully, less. 18 COMMISSIONER SIDNEY LINDEN: Well, let's 19 begin. 20 21 (BRIEF PAUSE) 22 23 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 24 Q: Good afternoon, Ms. Jai. I thank 25 you, Commissioner. As you may know, I'm one of the legal
1591 Counsel for the Estate of Dudley George and the family of 2 Dudley George and I will be asking you questions on three 3 (3) or four (4) general topics. 4 First of all, with respect to the issue of 5 the ex parte injunction or any injunction made without 6 notice, and I guess I apologize in advance for what's 7 going to be a fairly detailed questioning, and I 8 understand you may not recall everything, but certainly 9 in my client's view that's a very important issue and I'd 10 like to understand what happened, to the extent you can 11 help. 12 I understand from what you've said so far 13 that your understanding when you went into the IMC 14 meeting, the Interministerial Committee meeting of 15 September 6th, was that the Committee had agreed that the 16 Government -- I use the term loosely, the Government 17 would you -- would seek an injunction and you believed 18 that you had the approval and instructions of the 19 Attorney General himself, the Honourable Mr. Charles 20 Harnick, that the injunction would not be an ex parte 21 injunction; is that fair? 22 A: That's correct. 23 Q: All right. At some point in the 24 afternoon, and I'll get into this in more detail, there 25 was a change and the legal Counsel for the Government,
1601 using the term loosely, began to seek an ex parte 2 injunction; that is one without notice to the occupiers. 3 Is that right? 4 A: Yes. 5 Q: All right. I'd like to try and fill 6 in some of that gap. I'd like to start by going to your 7 notes of the September 6th meeting. Those were included 8 in the Commission Counsel's materials. 9 I've also provided to yourself, Ms. Jai, 10 and the -- and the Commissioner and Commission Counsel 11 and some other Counsel, our own collection of two (2) 12 binders; one small one containing the meeting notes and a 13 larger one of some other documents, and whatever you find 14 most convenient. I'll be referring to my binder. 15 Do you have your September 6th -- 16 A: Yes, I have those -- 17 Q: -- meeting notes? 18 A: -- in front of me. 19 Q: Commissioner, if you wish to use the 20 binder I've provided, the September -- the meeting notes 21 of various parties, various witnesses, or potential 22 witnesses are included in here for the sake of 23 completeness and handiness. 24 I don't propose to make the whole binder 25 an exhibit now and we'll attempt to, if appropriate, make
1611 individual meeting notes exhibits. 2 COMMISSIONER SIDNEY LINDEN: Which Tab 3 is -- 4 MR. MURRAY KLIPPENSTEIN: And I'm -- 5 COMMISSIONER SIDNEY LINDEN: -- Ms. Jai's 6 notes at? 7 MR. MURRAY KLIPPENSTEIN I'm now, in this 8 binder, looking at Tab 14. 9 COMMISSIONER SIDNEY LINDEN: Tab 14. 10 11 (BRIEF PAUSE) 12 13 MR. DERRY MILLAR: And that's part of 14 Exhibit P-536. 15 MR. MURRAY KLIPPENSTEIN Yes, thank you, 16 Mr. Millar, and I -- I will try to identify the doc -- 17 Inquiry document numbers and exhibit numbers, but I 18 appreciate Mr. Millar's help as always. 19 That is document number 1012579. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: And I'm looking at your handwritten 23 page number 3. 24 A: Yes. 25 Q: Of the IMC meeting minutes of
1621 September 6th, and in general, the -- near the top of the 2 page there appears to be several sentences that are 3 statements by Tim McCabe; is that fair? 4 A: The ones following the -- the 5 reference "Tim" and then all those bullets, the four (4) 6 bullet points after his name -- 7 Q: Right. 8 A: -- are all things that Tim said. 9 Q: And then comment by Deb and then Tim 10 again and then Ron; is that right? 11 A: Yes. 12 Q: I've gone through this in some detail 13 with other witnesses. I'll try not to be labourious 14 about it but I wonder if this is quite important, so I 15 will ask some detailed questions. 16 Tim McCabe, at this point in the meeting, 17 seems to be talking in detail about the injunction; is 18 that right? 19 A: Right. 20 Q: Now Mr. McCabe was invited to the 21 meeting by you; is that right? 22 A: Yes. 23 Q: And he did not attend the previous 24 meeting on September 5th, did he? 25 A: I don't believe so.
1631 Q: Okay. And he was quite a senior 2 civil litigation lawyer, is that -- 3 A: Yes. 4 Q: -- right? Yeah. In fact... 5 6 (BRIEF PAUSE) 7 8 Q: I think the evidence will be brought 9 forward that according to Mr. Harnick in a statement made 10 in 1997, that Mr. McCabe was probably the foremost expert 11 in government in dealing with these kinds of situations. 12 Do you have some comment on that with -- 13 A: Yes. He was the foremost expert in 14 civil litigation as it affects Aboriginal people. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: And he was -- he would have had a 20 significant amount of experience in injunctions -- 21 A: Yes. 22 Q: -- to your knowledge; is that right? 23 A: Yes. 24 Q: And he, at that point, and I'll 25 summarize, I'm happy to go through this in detail, but to
1641 try and save some time here, he talks about this 2 situation before you -- not being a case for an ex parte 3 injunction and that notice should be given; is that 4 right? 5 A: Yes. 6 Q: Yes. And then he ends by saying, 7 "Best case, Friday in Court." 8 Is that right? 9 A: Yes. 10 Q: And that comment, "Best case, Friday 11 in Court," appears in many people's notes which I won't 12 take you to now -- 13 A: Hmm hmm. 14 Q: I'll just read the evidence -- 15 A: Right. 16 Q: -- we'll be clear on that point. And 17 then your notes say, "Deb," and tell me if this is a 18 correct reading of your notes: 19 "Premier feels the longer they occupy 20 it, the more support they'll get. He 21 wants them out in a day or two (2)." 22 Is that a correct -- 23 A: Yes. 24 Q: -- reading of your notes? 25 A: Yeah.
1651 Q: And can you tell me how you would 2 have written those notes in general, and in particular, 3 these? I'll be specific about it. 4 I take it your notes of this comment by 5 Deb Hutton would have been contemporaneous as we usually 6 use that term? 7 A: Yes. 8 Q: Yes. And were you writing as people 9 were speaking? 10 A: Yes. 11 Q: And you -- you take a lot of notes, 12 it would appear, from meetings, is that -- 13 A: Yes. 14 Q: Yes. And so you're writing almost 15 continuously, except when you're talking, is that right? 16 A: Yes. 17 Q: And you're writing fast? 18 A: Yes. 19 Q: And you're writing things down as 20 people say them? 21 A: Yes. 22 Q: And so what Deb Hutton is reported 23 here to have said, is something you would have written 24 down basically while she was saying it; is that right? 25 A: Yes.
1661 Q: I take it you -- you are a fast 2 writer? 3 A: Yes, I'm a very fast writer. 4 Q: Okay. And would you have some 5 mixture of summarizing what people say and some verbatim 6 record of what people say? 7 A: Yes. It would be a combination of 8 verbatim and using short forms and in some cases 9 summarizing. 10 Q: Okay. Now, I would like to ask about 11 the two (2) parts of that comment that you apparently 12 recorded by Deb Hutton. The first one says: 13 "The Premier feels the longer they 14 occupy it, the more support they'll 15 get." 16 And the second one -- part is: 17 "He wants them out in a day or two 18 (2)." 19 Now, I find the first comment in quite a 20 few meeting notes from -- 21 A: Hmm hmm. 22 Q: -- different participants. That's 23 not true for the second comment, "He wants them out them 24 out in a day or two (2)." So I would just like to ask 25 you about that second comment as well.
1671 Do you have a recollection or do you have 2 -- or do you have a position on whether you wrote down 3 that second part, namely, "He wants them out in a day or 4 two (2)" at the time that she was speaking approximately? 5 A: I'm sure I wrote it at the time. 6 Q: Right. And would you have written -- 7 do you have any recollection about whether that phrase or 8 short sentence is mostly verbatim or partly verbatim? 9 Do you have any recollection of the status 10 of those words? 11 A: I don't have a direct recollection, 12 but -- so I would just say reconstructing from this note 13 that is in front of me, that it would be mostly verbatim, 14 close -- fairly close to verbatim because it isn't, you 15 know, really contracted in any way. 16 Q: It's not a complex -- 17 A: It's not a complex thought that has 18 had to be shrunk down in -- in any way. 19 Q: Okay. And I'm interested in a few 20 parts of those words. I'm interested in the phrase -- 21 well the word 'he'. I take it that -- 22 A: The Premier. 23 Q: -- obviously refers to the Premier. 24 A: Yes. 25 Q: "He wants them out", is your
1681 understanding that Ms. Hutton is conveying the wishes of 2 the Premier; is that right? 3 A: Yes. 4 Q: And did you understand those as 5 bordering on instructions from the Premier or perhaps 6 constituting instructions from the Premier? 7 A: Well, they were clearly -- it was 8 expressed as the views and wishes of the Premier. 9 Q: Okay. And when you wrote down, "He 10 wants them out" focussing on the word 'out' -- 11 A: Hmm hmm. 12 Q: -- do you recall if the word 'out' is 13 -- is an accurate transcription of what Ms. Hutton said? 14 A: Well, the meaning was out of the 15 Park. 16 Q: Okay. And when these words say, "He 17 wants them out" am I correct in concluding that your 18 understanding was not that he wants an injunction, but he 19 wants them out of the Park in the time specified? 20 A: Yes. 21 Q: Let me -- let me rephrase that if 22 that's -- let me clarify that by going to the rest of the 23 sentence first. The words, "in a day or two (2)", I note 24 that they are a pretty distinct phrase. You referred to 25 "a day or two (2)".
1691 Do you recall whether that is a verbatim 2 or close to verbatim record of Ms. Hutton's words? 3 A: I believe it was. 4 Q: And is it correct that your 5 understanding was that the Premier was expressing his 6 desire or wish that the protesters be out of the Park in 7 a day or two (2) from when she was speaking? 8 A: Yes. 9 Q: Right. So, by a day or two (2), that 10 could -- you -- you would have understood that as being 11 essentially twenty-four (24) or forty-eight (48) hours 12 from when this was being spoken; is that right? 13 A: Yes. 14 Q: And returning to the question I had 15 before when you wrote down that, "He wants them out in a 16 day or two (2)" it appears to me, and tell me if this was 17 your understanding, that the Premier wanted them -- what 18 the Premier wanted was not a court -- let me just go back 19 a step. 20 What the Premier wanted was not an 21 application filed with court within a day or two (2), and 22 what the Premier wanted was not that they have a court 23 judgment in a day or two (2), what the Premier wanted was 24 that the occupiers be out of the Park in a day or two 25 (2); is that right?
1701 A: That's what the language suggests. 2 Q: Okay. 3 A: Which -- I mean the follow-up comment 4 is by Tim McCabe that suggests we should proceed under 5 the Code. I mean Tim, in hearing this, is -- it's 6 registering with him that our best case which is getting 7 to court on Friday to get an injunction would not meet 8 the expressed desire of the Premier to get the occupiers 9 out of the Park in a day or two (2). 10 And so then Tim says that suggests we 11 should proceed under the Code because Criminal Code 12 charges could be laid immediately if there are criminal 13 offences being committed or if mischief is used as the 14 rationale for a Criminal Code charge. 15 Q: Well, it's interest -- interesting 16 you should make that comment because my next question was 17 exactly about Tim's comments because when I read that it 18 appears to me and tell me if this was your understanding 19 at the time that Mr. McCabe, hearing that, appeared to 20 conclude that what he had just described as his best case 21 scenario for an injunction would not be good enough for 22 the Premier? 23 A: Right. 24 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 25 Downard?
1711 MR. PETER DOWNARD: I -- I don't -- I 2 don't want to split hairs -- 3 COMMISSIONER SIDNEY LINDEN: Go on. 4 MR. PETER DOWNARD: -- I'm just -- I'm 5 just concerned that the -- the Witness can't give 6 evidence about what was in Mr. McCabe's mind. 7 COMMISSIONER SIDNEY LINDEN: She could 8 say what he said. 9 MR. PETER DOWNARD: She can say -- 10 COMMISSIONER SIDNEY LINDEN: What she's 11 done. 12 MR. PETER DOWNARD: Absolutely. 13 COMMISSIONER SIDNEY LINDEN: Yes. So, we 14 can deal with it. 15 MR. MURRAY KLIPPENSTEIN: I believe the 16 record will show that I didn't ask what was in Mr. 17 McCabe's mind other than as was evidenced by his actions 18 and so forth, but I understand the point. 19 20 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 21 Q: Now, Tim's reaction and what he said 22 to Ms. Hutton's comments about the Premier wanting them 23 out in a day or two (2) appeared to you to indicate that 24 Tim saw this as a significant or serious comment; is that 25 fair?
1721 A: Yes. 2 Q: And you wrote this down because you 3 understood that to be a serious or significant comment; 4 is that fair? 5 A: Yes. 6 Q: Now, is it possible that other people 7 in the room did not write this down in their notes either 8 because they did not, as non-lawyers, recognize the full 9 significance of that? 10 COMMISSIONER SIDNEY LINDEN: I'm not sure 11 how she -- 12 MR. DERRY MILLAR: He can't -- I don't 13 think that she can answer that. 14 COMMISSIONER SIDNEY LINDEN: I don't 15 think she can why other people may or may not have 16 written something down. 17 MR. MURRAY KLIPPENSTEIN: I -- I -- I'll 18 take a step backward and proceed in a different 19 direction. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: And then after Tim's comments Ron Fox 23 appears to make some comments; is that fair? 24 A: Yes. 25 Q: And Mr. Fox's comments, basically
1731 were a reaction to Ms. Hutton's comments about the 2 Premier wanting them out in a day or two (2); is that 3 fair? 4 A: Yes. 5 Q: And Mr. Fox's comments, and you can 6 see them there, are of the tone and nature of don't rush 7 in because it's not that serious and we should look at a 8 long-term solution; is that fair? 9 A: Yes. 10 Q: Now, however, turn -- if I turn -- 11 ask you to turn the page to page 4 at the bottom of the 12 page your handwriting says: 13 "Agreed. We will seek injunction ASAP 14 - Friday." 15 Right? 16 A: Yes. 17 Q: Now, you seem to be recording what 18 you think was a consensus of the meeting that an 19 injunction as soon as possible meant Friday; is that 20 right? 21 A: Yes. 22 Q: So, that seems to me to clash with 23 what Ms. Hutton expressed as the wishes of the Premier; 24 is that right? 25 A: Yes.
1741 (BRIEF PAUSE) 2 3 A: However, I mean, perhaps just to 4 clarify on that point at the bottom of page 4 it says: 5 "Agreed we will seek injunction as soon 6 as possible Friday." 7 So, that's using Tim McCabe's best case 8 scenario that we could get a regular injunction before a 9 Judge on Friday with an abridged notice period. 10 Then the next point says: 11 "Criminal Code charges would be within 12 police discretion - they are trying to 13 remove people. All agree goal is to 14 remove people as soon as possible." 15 So, it's not necessarily inconsistent with 16 what Deb Hutton indicated the Premier's views were, 17 because Criminal Code charges could also be laid. 18 But, I mean, that's up to the police. 19 Q: I was going to say, and I'll go back 20 to Tim's comments, right after Ms. Hutton says the 21 Premier wants them out in a day or two (2), on page 3, 22 Mr. McCabe says: 23 "That suggests we should proceed under 24 the Code." 25 Right?
1751 A: Right. 2 Q: The Criminal Code? 3 A: The Criminal Code. 4 Q: So, Mr. McCabe was indicating, as you 5 understood it, that instead of the injunction which he'd 6 been describing, the Criminal Code was -- the Criminal 7 Code charges were the way to get the occupiers out in a 8 day or two (2), possibly. 9 A: Yes. 10 Q: Now the problem, of course, is that 11 the Province cannot direct the police to lay criminal 12 charges at all or at any given time; is that aright? 13 A: Yes. 14 COMMISSIONER SIDNEY LINDEN: Just a 15 minute, before you answer. 16 Yes, Mr. Downard...? 17 MR. PETER DOWNARD: I'm just concerned 18 that what -- what Mr. McCabe said is -- is on the note. 19 What the Witness recalls him having said, whether 20 refreshed by her notes or whatever, is -- is clear. 21 But going on to the scribe -- he was 22 indicating something more than what was said is not 23 something this Witness can testify on. 24 COMMISSIONER SIDNEY LINDEN: We've 25 already gone over that, you're right, Mr. Downard.
1761 MR. MURRAY KLIPPENSTEIN Commissioner, 2 the record will show that my question elicited the 3 Witness' own understanding which I believe is a proper 4 question and I -- 5 COMMISSIONER SIDNEY LINDEN: Observation 6 or -- I'm not sure. Let Mr. Downard make his objection. 7 MR. PETER DOWNARD: Well, my only concern 8 -- if it's her understanding as to something she could 9 not possibly understand, exactly what is in Mr. McCabe's 10 mind, it's not helpful. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. MURRAY KLIPPENSTEIN Well, the 13 Witness can surely testify as to what -- 14 COMMISSIONER SIDNEY LINDEN: What she 15 saw, what she heard. 16 MR. MURRAY KLIPPENSTEIN What she saw, 17 what she heard and what her understanding was based on 18 what she saw and heard. 19 COMMISSIONER SIDNEY LINDEN: Right. Not 20 if it means having to say what's in Mr. McCabe's mind. 21 MR. MURRAY KLIPPENSTEIN Correct, and I 22 don't believe I did that. I said -- 23 COMMISSIONER SIDNEY LINDEN: Well -- 24 MR. MURRAY KLIPPENSTEIN -- what was in 25 her mind, not in Mr. McCabe's mind.
1771 COMMISSIONER SIDNEY LINDEN: As Mr. 2 Downard said, he doesn't want to split hairs and I don't 3 think any of us do, but we have to be as clear as 4 possible. 5 MR. MURRAY KLIPPENSTEIN Thank you. I 6 don't want to split hairs either; I'm losing too many of 7 them. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: I'd like to, Ms. Jai, see if you can 13 enlighten me on what happened after Ms. Hutton's comments 14 about the Premier's wishes. 15 Before I do that, let me go back a step. 16 Your understanding at this point was, am I correct, then 17 that the Premier had -- sorry, that Ms. Hutton was 18 speaking with the authority of the Premier when Ms. 19 Hutton said the Premier wants them out in a day or two 20 (2)? 21 A: Yes. 22 Q: Now, am I right in extrapolating that 23 that was a matter of concern for you because it shortened 24 the timeframes for things like legal analysis and 25 possible first level discussion with the occupiers and
1781 fact finding? 2 This was a concern for you; is that fair? 3 A: Well, it was putting a lot of time 4 pressure on us that I didn't know as feasible, that -- to 5 meet those time -- to meet the time limits that were -- 6 that Deb Hutton indicated the Premier wanted to have met. 7 Q: Okay, you use the word 'time limits'. 8 So, is it -- is that a fair description of your 9 understanding that Ms. Hutton was effectively 10 transmitting a deadline for the Premier's wishes? 11 MR. DERRY MILLAR: Well -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. DERRY MILLAR: -- he can ask what she 14 -- I think it's fair for My Friend to ask her what she 15 means by 'time limits'. 16 I'm not certain she can ask -- answer the 17 question -- 18 COMMISSIONER SIDNEY LINDEN: What the 19 Premier meant. 20 MR. DERRY MILLAR: -- what the Premier 21 thought -- 22 THE WITNESS: Hmm hmm. 23 MR. DERRY MILLAR: -- about -- 24 MR. MURRAY KLIPPENSTEIN I believe, 25 Commissioner, I once again tried to phrase --
1791 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. MURRAY KLIPPENSTEIN -- my question 3 carefully, and the cross-examination will become quite 4 long with these kinds of objections. 5 COMMISSIONER SIDNEY LINDEN: Well, I 6 think we're going to get these objections. You can ask 7 her what she observed and what she saw and what she 8 concluded as a result of that. 9 MR. MURRAY KLIPPENSTEIN: I believe 10 that's what I've been asking in each case. I will try 11 very hard to do that. 12 COMMISSIONER SIDNEY LINDEN: Yeah, well - 13 - It's a fine line and I don't think anybody's splitting 14 hairs but it is a fine line. 15 You have the same observation, Mr. Roy? 16 MR. JULIAN ROY: I did but it follows-up 17 on the last point that you just made in discussion with 18 Mr. Klippenstein. The point is that this Witness is more 19 than just a robot who's writing down what they're saying 20 and repeating them. 21 COMMISSIONER SIDNEY LINDEN: She's 22 drawing conclusions. 23 MR. JULIAN ROY: She's interpreting 24 what's being said and she's acting in accordance with 25 those interpretations and if we're going to examine the
1801 conduct of her and the conduct of -- of the organization 2 that she was -- that she chaired, we have to understand 3 what was in her mind. And in my respectful submission -- 4 COMMISSIONER SIDNEY LINDEN: In her mind. 5 There's no question about that. 6 MR. JULIAN ROY: That's right. That's 7 right. But what's in her mind is her interpretation of 8 what other people are saying to her. 9 COMMISSIONER SIDNEY LINDEN: A conclusion 10 or what she's drawing from what she's seeing and hearing. 11 MR. JULIAN ROY: That's right. 12 COMMISSIONER SIDNEY LINDEN: But, not 13 what other people are -- are thinking, only what they're 14 saying. 15 MR. JULIAN ROY: And in practice it 16 becomes difficult for both the questioner and for the 17 Witness it is a fine line between saying -- asserting 18 what somebody -- in somebody's mind and asserting what's 19 in your mind as to what's going on in the speaker's mind 20 so -- 21 COMMISSIONER SIDNEY LINDEN: I think we 22 all understand and we'll just try to be as careful as we 23 can. 24 MR. JULIAN ROY: And we're going to get 25 bogged down if we just -- if we're all popping up every
1811 5 minutes. We all understand what Mr. Klippenstein is 2 trying to get at with his questions. If we can -- all 3 I'm suggesting is that it's clear in -- in the 4 questioning that that's not what's being sought to be 5 elicited. 6 COMMISSIONER SIDNEY LINDEN: It isn't as 7 clear to some people as it is to you. So. let's go on. 8 MR. JULIAN ROY: I doubt that. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: Ms. Jai, I wonder if you could 12 illuminate, if you can, what transpired on the issue of 13 notice for the rest of this meeting or immediately right 14 after the meeting, after Ms. Hutton conveyed these 15 comments? 16 Do you -- and again I anticipate we'll 17 have for, exampled Mr. McCabe coming to testify and he 18 can express his views. On the other hand there was group 19 here of which you were one and you have some knowledge on 20 it as well. 21 Can you tell me anything about what 22 happened to that ex parte or notice status after these 23 comments, in the meeting and immediately after? 24 A: Yeah. I guess just to comment on the 25 whole tensions within the meeting because that was kind
1821 of the last question. 2 I was -- was trying to manage the fact 3 that there were some people in the meeting who really 4 wanted us to proceed really quickly and those who had 5 more of a go-slow approach. So, that was the challenge 6 of dealing with those tensions from people who had 7 different views as to the urgency and the speed with 8 which we should respond. 9 When Tim said that we could get before a 10 judge on Friday, which was only two (2) days later, with 11 a regular injunction with notice but, you know, with a -- 12 an abbreviated notice period, I thought that seemed 13 really good. Like that was very quick to get before a 14 judge in two (2) days. 15 So, I thought, oh, good, maybe that will 16 sort of satisfy both the people who want to really rush 17 quickly and those who, you know, want an injunction, but 18 on a more, you know, cautious approach. 19 So, I was happy that there was that 20 possibility that we could just go ahead with a normal 21 injunction, but get before a judge on Friday and that we 22 -- I felt that this was a consensus that I could possibly 23 pull the meeting together around. 24 And that's what I reflect in the comment 25 at the end that we would seek an injunction as soon as
1831 possible on Friday. And that is what the -- the minutes 2 indicated. Like the first draft of the minutes from this 3 meeting indicate that we would seek an injunction and 4 that would be a regular injunction with, you know, 5 proceeding in -- in the normal course but getting before 6 a judge as quickly as possible. 7 Q: Okay. 8 A: So, then after the meeting, some time 9 after the meeting ended, I got that call from Ron Fox 10 which we've all discussed in great detail and which I 11 have -- had made a contemporaneous note about that in 12 which he said he was pulled into a cabinet meeting and 13 that the decision to go ex parte appeared to have already 14 been made. 15 And then I checked that with Larry or Yan 16 and communicated with either Elizabeth or Tim about 17 changing it to an ex parte injunction application and 18 they did proceed on that basis. 19 Q: Okay. Could -- could I ask you to 20 turn that up; that's at Tab 27 of the Commission's items 21 Volume 1 Exhibit P-515. That's the half-page handwritten 22 note of September 6. 23 A: Yes? 24 Q: And in that call, apparently, 25 according to your notes you say:
1841 "Tim has for someone from the OPP to 2 give viva voce evidence before a judge 3 today in Sarnia." 4 Is that an accurate reading of the first 5 sentence? 6 A: Yes. 7 Q: Now, two (2) things about that. 8 First of all, Tim has apparently spoken with Ron Fox -- 9 A: Yes. 10 Q: -- at this time already -- 11 A: Yes. 12 Q: -- about an injunction; is that 13 right? 14 A: Yes. 15 Q: And he's talked about a possible 16 injunction today being September 6th; is that right? 17 A: Yes. 18 Q: Do you see the word, "today?" 19 A: Yes. 20 Q: So it appears at this point in time 21 when you spoke with Ron Fox that there was contemplation 22 of an injunction that very day on the 6th; is that right? 23 A: It appears that way. 24 Q: Okay. Now, you don't know what time 25 your conversation with Ron Fox was I take it?
1851 A: No, I just know it was in the 2 afternoon of September 6th. 3 Q: And... 4 A: After the Interministerial Meeting. 5 Q: And Ron Fox, in this conversation, 6 did not mention, I take it, that he has spoken with Ron - 7 - with John Carson on the phone? 8 A: No, he -- he -- 9 Q: All right. 10 A: -- I don't think he mentioned it. 11 Q: Now, the evidence has been that from 12 the handwritten notes of John Carson and a tape recording 13 that Ron Fox and John Carson spoke, and according to, for 14 example, John Carson's notes, that conversation was at 15 about 2:10 in the afternoon -- 16 A: Hmm hmm. 17 Q: -- on the 6th. And in that 18 conversation Ron Fox, according to John Carson's notes, 19 also mentioned an ex parte injunction and that the 20 injunction could be heard either that day the 6th, or the 21 7th? 22 So the evidence is that in his call with 23 John Carson Ron Fox was still speaking about a possible 24 injunction on the 6th. 25 A: Hmm hmm.
1861 Q: All right? 2 A: Right. 3 Q: Now, and I want to ask you some 4 timing questions here, we then have, subsequently, a call 5 between Mr. McCabe and Mr. Carson? 6 A: Hmm hmm. 7 Q: And that is, according to the 8 evidence, at about 2:35, 2:36, 2:45 depending on whose 9 notes you talk to. In that call Mr. McCabe says to Mr. 10 Cars -- to Inspector Carson that he thought that the 11 injunction is for the next day the 7th -- 12 A: Hmm hmm. 13 Q: -- at nine o'clock. So the time has 14 been confirmed. The possible injunction for the 6th is 15 now apparently off the table. 16 A: Hmm hmm. 17 Q: And would you agree with me that 18 suggests that your call with Ron Fox was before 2:35, 19 that is before Ron Fox spoke -- before Mr. McCabe spoke 20 with Carson, the logic being that by 2:35 the injunction 21 on the 6th was off the table? 22 A: That's possible. I can't say for 23 sure because it depends when Ron last spoke to Tim. 24 Q: All right. So... 25 A: Because he may not -- when did Ron --
1871 did Ron -- when -- you had -- you had some time when you 2 said Ron spoke to Tim? 3 Q: Okay. So you're saying that because 4 we don't know when Ron Fox got updated from McCabe we 5 don't know when Ron Fox -- 6 A: Right. 7 Q: Okay. 8 A: Like Tim probably would have tried to 9 get it on as quickly as possible and communicated with 10 the court in Sarnia and found out that the 7th was the 11 earliest possible day to get before a judge -- 12 Q: All right. 13 A: -- but when Ron found that out, I 14 don't know. 15 Q: Okay. So you can't -- you don't have 16 any information about how we got to 2:35 when -- by which 17 time the injunction for the 6th is off the table? You 18 don't have any information about that? 19 A: No, I don't. 20 Q: All right. Now, the evidence will 21 show that there was -- there was an attempt to schedule 22 an injunction at around eight o'clock -- excuse me, that 23 around eight o'clock materials were forwarded to the 24 Courthouse in Sarnia, I believe, and -- 25 A: Do you mean 8:00 p.m.?
1881 Q: Yes. And that the Judge on the 2 morning of the 7th, on the transcripts, refers to an 3 attempt to schedule a Court hearing the evening before. 4 A: Hmm hmm. 5 Q: Do you know anything about when 6 contact was made with the Sarnia Court to attempt to 7 schedule something on the evening of -- 8 A: No, I don't. 9 Q: No, okay. 10 A: No, I had very little involvement 11 with the mechanics of the injunction itself. That would 12 have been Tim and Elizabeth. 13 Q: Okay. So it could have been Tim or 14 Elizabeth that contact -- or somebody else that 15 contacted -- 16 A: Or another lawyer from AG. 17 Q: Okay. Now do you know who was 18 working on the injunction? Was it Mr. McCabe, Ms. 19 Christie, was it Ms. Hipfner, was it Ms. Hunter? 20 A: Well, Leith Hunter was also involved, 21 because MNR -- they had to get evidence from MNR. 22 So they would -- I think Leith was 23 involved in drafting an Affidavit -- 24 Q: Okay. 25 A: -- for someone from MNR.
1891 Q: Ms. Hunter was a legal Counsel with 2 MNR? 3 A: Yes. 4 Q: Okay. 5 6 (BRIEF PAUSE) 7 8 Q: So, you don't have any knowledge, I 9 take it, or -- of -- well, let me step back and rephrase 10 that. You didn't instruct Mr. McCabe or Ms. Christie to 11 seek an injunction that evening the 6th? 12 A: No. 13 Q: Okay. Do you know where that came 14 from? 15 A: Well, it's possible that Larry Taman, 16 because he was also in this meeting with the Premier, the 17 one that Ron is debriefing me on, and he is the deputy 18 Attorney General, that he would have been communicated 19 immediately with Tim regarding the injunction. 20 Q: I see. Would that have been usual 21 for the deputy minister to speak with legal Counsel on a 22 specific case for instructions, or would it have normally 23 gone through someone like yourself? 24 A: Well, it normally would have gone 25 through a series of bureaucrats, but in an urgent case
1901 like this it would not have been unusual. 2 I mean, when things are urgent then the 3 normal layers get broken down and people speak more 4 directly to the people who have to get the work done. 5 Q: Okay. So Mr. McCabe didn't discuss 6 with you on the 6th the concept of going to Court on the 7 evening of the 6th for an injunction, to your 8 recollection? 9 A: Not that I recall. It's possible 10 that he did, but I can't recall. 11 12 (BRIEF PAUSE) 13 14 A: I guess, just in this case, maybe I 15 should clarify. Tim would not necessarily have had to 16 take instructions from me. There are many different sort 17 of ways of -- of -- there's reporting authorities and 18 then there's people who you keep in the loop for various 19 reasons. 20 In this case I would be somebody who Tim 21 would keep in the loop because this came out of the 22 emergencies Committee, but the actual person who has 23 authority over him is the deputy Attorney General. 24 So, Larry could certainly give Tim 25 instructions directly.
1911 (BRIEF PAUSE) 2 3 Q: But I take it from what you said that 4 Mr. Taman never said to you, I've given instructions -- 5 never said to you on the 6th, I've given instructions to 6 Tim McCabe? 7 A: I can't recall what that discussion 8 was. So it -- it seems likely that I would have spoken 9 to Larry that day, but I just don't know what -- I don't 10 recall the -- the nature of our conversation. 11 Q: Fine. If you could pull the second 12 larger binder that I've provided to you and to -- to the 13 Commissioner and others as well, which is other 14 documents. 15 16 (BRIEF PAUSE) 17 18 Q: And turn to Tab 15? 19 20 (BRIEF PAUSE) 21 22 A: Yes. This is the motion record for 23 the -- 24 Q: This is the -- 25 A: -- injunction application?
1921 Q: This is a motion application, Exhibit 2 P-551, which is a package being the motion record filed 3 with the court apparently; is that right? 4 A: Yes, it -- it looks like the motion 5 record. 6 Q: Now, I'd like to -- I'd like to ask 7 some questions of you about the order, one (1) paragraph 8 of the order that was sought and you -- and I'm -- and 9 I'm asking you from two (2) different points of view, the 10 first is whether you have knowledge about the drafting or 11 participated in the drafting of the Notice of Motion 12 which sets out in paragraphs 1, 2, and 3 the order that 13 is asked for from the Court. 14 A: I did not participate in the 15 drafting. It's possible that the draft was sent to me to 16 look at. 17 Q: Okay. 18 A: But again, it might not have been 19 given the very tight timeframes. 20 Q: Okay. And I believe the evidence 21 will show that this motion record or something 22 essentially equivalent to it was faxed to the Court on 23 the evening of the 6th. Now, if you could look to page 5 24 of the Notice of Motion or the motion record which is 25 headed by the title, The Motion is For.
1931 Do you see that? 2 A: Yes. 3 Q: And there's three (3) paragraphs, one 4 (1), two (2) and three (3), three (3) being on page 7; do 5 you see that? 6 A: Yes. 7 Q: Now, the paragraph -- paragraphs 1 8 and 2 seek an injunction ordering the defendants, 9 essentially, to do something; do you see that? 10 A: Yes. 11 Q: I don't mean to rush you, I'm happy 12 to look through it -- 13 A: Hmm hmm 14 Q: -- but I think those seem to be the 15 kind of paragraphs you would expect from an injunction 16 ordering occupiers to leave a park. 17 A: Yes. 18 Q: However, paragraph 3 is -- is perhaps 19 another kettle of fish and I'd like you to, well, first 20 of all, take note of the fact that the last phrase of 21 paragraph 3 says: 22 "Within or at any entrance to the 23 Park." 24 Okay? And then the first paragraph says - 25 - the first sentence or line says:
1941 "In order that such officers, agents, 2 and servants of the Government of 3 Ontario that are directed to do so by 4 any minister." 5 Now, you were an agent or a servant of the 6 Government of Ontario, right? 7 A: Yes. 8 Q: So in that capacity and as a lawyer 9 for the Crown, could you read paragraph 3 and I have a 10 few questions about that. 11 A: Okay. Okay, this is paragraph 3: 12 "An order that such officers, agents, 13 and servants of the Government of 14 Ontario, that are directed to do so by 15 any minister or deputy minister, remove 16 forthwith all camping equipment, 17 vehicles, blockades and all other 18 things whatsoever that have been placed 19 on any road or public highway or any 20 area by the defendants or their 21 servants and agents or by any persons 22 acting under the counsel, instruction, 23 or direction of them or any of them or 24 on their behalf or on behalf of any of 25 them within or at any entrance to the
1951 Park." 2 Q: All right. And this is the order 3 that was sought and was, in fact, obtained on the morning 4 of September 7th, although it was at the same time 5 suspended by the Court; is that right? 6 A: Yes. 7 Q: Now, I'm going to ask you to take a 8 pen if you have one handy and underline some of the words 9 in paragraph 3 because I want to sort out some of the -- 10 some of the legal verbosity if I -- if I can use that 11 term. 12 OBJ MS. KIM TWOHIG: Excuse me, Mr. 13 Commissioner, I'm objecting to this line of questioning 14 in that Ms. Jai did not draft these documents and 15 although they were made into an order of the Court it 16 appears that she's now being asked to interpret a Court 17 order which I submit is not a proper line of questioning. 18 MR. MURRAY KLIPPENSTEIN: I'm asking this 19 question, as I said, because Ms. Jai may in fact be 20 potentially a subject of the court -- court order. 21 COMMISSIONER SIDNEY LINDEN: I don't 22 think that's a basis for asking these questions. 23 MR. MURRAY KLIPPENSTEIN: Well -- 24 COMMISSIONER SIDNEY LINDEN: Every 25 officer of the Crown is subject to the order.
1961 MR. MURRAY KLIPPENSTEIN: That's -- 2 that's -- 3 COMMISSIONER SIDNEY LINDEN: That doesn't 4 mean that they're in a position to answer these 5 questions. 6 MR. MURRAY KLIPPENSTEIN: I'm not asking 7 this as a legal interpretation for purposes of a legal 8 argument or -- I'm asking this in a practical day-to-day 9 sense. 10 COMMISSIONER SIDNEY LINDEN: Why don't 11 you just questions and not ask her to start underlining 12 and interpreting things. 13 MR. MURRAY KLIPPENSTEIN: All right. 14 COMMISSIONER SIDNEY LINDEN: Just ask her 15 questions. If the questions are appropriate they won't 16 be objected to -- 17 MR. MURRAY KLIPPENSTEIN: All right. 18 COMMISSIONER SIDNEY LINDEN: -- and if 19 they aren't they will be. 20 MR. MURRAY KLIPPENSTEIN: Okay. 21 COMMISSIONER SIDNEY LINDEN: Ms. Twohig, 22 if you hear any specific questions that you think are not 23 proper you'll object. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
1971 Q: All right. At paragraph 3 appears, 2 Ms. Jai, to be an order from the court that officers, 3 agents and servants of the Government of Ontario, which 4 are directed to do so by any minister, remove forthwith 5 all camping equipment, vehicles and other things 6 whatsoever that have been placed on any area by the 7 defendants within the Park. 8 A: Yes. 9 Q: Right. And so this appears to be a 10 very broadly worded order which would include you, every 11 participant and the member in the meetings, the MNR staff 12 such as Mr. Sturdy and Mr. Baldwin and so forth and it is 13 a court order saying that if any ministers, including the 14 Premier who is a minister, asks you to do so, you shall 15 remove forthwith, which means immediately, all camping 16 equipment and vehicles and anything else placed within 17 the Park by the defendants. 18 Is that -- is that a fair interpretation? 19 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 20 Twohig, you're making your objection now. Now your 21 objection is -- 22 MS. KIM TWOHIG: All Ms. Jai can do is 23 read it the same as -- 24 COMMISSIONER SIDNEY LINDEN: The same as 25 any of us can.
1981 MS. KIM TWOHIG: -- any of us can read 2 it. 3 COMMISSIONER SIDNEY LINDEN: Yes. You 4 are asking her for interpretation that I don't think 5 she's any more qualified to give than anybody else. And 6 it's certainly not anymore helpful than anybody else. We 7 can read the words and interpret them. These are words 8 in an order of the court. 9 MR. MURRAY KLIPPENSTEIN: The difficulty 10 I have is that it appears to me in my submission, 11 Commissioner, that there are 2 or 3 bases on which Ms. 12 Jai is well qualified to give, not a formal legal 13 opinion, but a practical view on what this is. 14 First of all, she appears to be affected 15 by it, secondly she was intimately involved in the facts 16 surrounding the injunction and in planning it and in the 17 context, so she knows what's going on. 18 And the question that this raises, in my 19 submission, Commissioner, is that this is a radical order 20 that creates, essentially, a workforce if not an army 21 that is at the court ordered command of the Premier or a 22 minister to go into the Park and remove the occupiers' 23 possessions. 24 COMMISSIONER SIDNEY LINDEN: That's a 25 matter for your argument. And I'm sure you will make
1991 that argument but I don't think it's a matter for 2 questioning of this Witness at this time. It's 3 definitely a matter that you could make argument on. The 4 order speaks for itself in that sense. 5 MR. MURRAY KLIPPENSTEIN: Well it -- it 6 does and I -- I don't, again, ask for a sort of formal 7 legal interpretation. The difficulty I'm having, 8 Commissioner, is I'm not properly able to make my 9 argument, at the end, if I don't have a fair chance to 10 illicit from whatever witnesses are affected by or 11 involved in the order, something about it, some 12 understanding of it. 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: Now, Ms. Jai, this paragraph, it 16 would appear, was part of what was faxed to the court and 17 was apparently intended to be incorporated in an order on 18 the evening of September 6th from the court; does that -- 19 does that accord with your knowledge? 20 A: I can't recall if was the version 21 that was faxed to the court. The only comment that I can 22 make on this that could be of any relevance, I guess, is 23 that my understanding was that the enjoining order that 24 we were seeking was to enjoin the occupiers of the Park. 25 So, I mean, as you read this to me now, it
2001 does seem surprising to me that part of the enjoining 2 order -- or part of the order is directed at public 3 servants. Because my understanding from the 4 Interministerial Committee was that we were seeking an 5 injunction specifically to enjoin people who were 6 occupying the Park from continuing their occupation. 7 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 8 Twohig...? 9 MS. KIM TWOHIG: The paragraph in 10 question refers to the removal of things. Vehicles, 11 camping equipment and other things which one could argue 12 suggests permitting MNR staff to enter onto the property 13 in question and remove things. 14 But, this is the danger that I'm -- I'm 15 suggesting we're getting into. All of us here could 16 argue about what the paragraph means and what its affect 17 would be. And I submit that this is not the place for us 18 to make those arguments with the Witness in the stand. 19 COMMISSIONER SIDNEY LINDEN: That's the 20 point that I thought I would making. 21 MR. MURRAY KLIPPENSTEIN: I -- 22 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 23 Rosenthal...? 24 MR. PETER ROSENTHAL: Certainly this is 25 not the place for legal argument about the ultimate
2011 meaning of this. However, Ms. Jai just said something 2 very interesting and very useful as evidence for this 3 court -- for -- for this Inquiry. 4 She indicated that the -- she hadn't 5 realized that the injunction, as it was talked about, 6 could have included such a broad order as this, which 7 affected her and many other civil servants. 8 Ms. Twohig says it talks about things, it 9 talks about people ordering people to do things to those 10 things, and the fact that this is an injunction much 11 broader than Ms. Jai contemplated during the discussions 12 is of great interest to this Inquiry and Mr. Klippenstein 13 must be allowed to continue to ask questions that would 14 elicit such information. 15 COMMISSIONER SIDNEY LINDEN: Some 16 questions are quite proper. We haven't stopped him from 17 asking any questions. 18 MR. DERRY MILLAR: Commissioner, if I 19 might suggest that the person who has an objection is -- 20 must -- should be a person who has a direct interest. 21 We -- 22 COMMISSIONER SIDNEY LINDEN: Yes, I -- 23 MR. DERRY MILLAR: -- can't have everyone 24 in the room, including Mr. Roy, coming up to join in on 25 objections.
2021 COMMISSIONER SIDNEY LINDEN: I'm not 2 going to continue to do that so -- 3 MR. DERRY MILLAR: So -- 4 COMMISSIONER SIDNEY LINDEN: -- I'm glad 5 you're saying that -- 6 MR. DERRY MILLAR: And -- 7 COMMISSIONER SIDNEY LINDEN: -- because 8 we'll never make any progress if that's the way we 9 continue. 10 MR. DERRY MILLAR: And with great 11 respect, perhaps we should look at the Order -- the 12 paragraph in the Order which, frankly, was suspended on - 13 - from -- it was made on September the 7th and then its 14 operation was suspended. 15 COMMISSIONER SIDNEY LINDEN: Yes, yes. 16 MR. DERRY MILLAR: But the Order speaks 17 for itself and -- and this Witness is in no better 18 position than you are to look at the Order. 19 COMMISSIONER SIDNEY LINDEN: Well, Mr. 20 Klippenstein can certainly make argument at the end and-- 21 MR. DERRY MILLAR: Of course. 22 COMMISSIONER SIDNEY LINDEN: -- put his 23 interpretation on this Order -- 24 MR. DERRY MILLAR: Of course. 25 COMMISSIONER SIDNEY LINDEN: And I assume
2031 he will do that. 2 MR. DERRY MILLAR: Of course. 3 COMMISSIONER SIDNEY LINDEN: And I don't 4 think he needs Ms. Jai's evidence in order to make that 5 argument of what this Order means. 6 MR. DERRY MILLAR: If you give some 7 relevant evidence, I -- I have no trouble -- 8 COMMISSIONER SIDNEY LINDEN: Yes, she 9 has -- 10 MR. DERRY MILLAR: -- with it. But 11 that -- 12 COMMISSIONER SIDNEY LINDEN: She has no 13 relevant evidence, she said so. I don't need to hear it 14 from you, Mr. Roy. You -- 15 MR. JULIAN ROY: Well -- 16 COMMISSIONER SIDNEY LINDEN: I appreciate 17 your attempts to be helpful but -- 18 MR. JULIAN ROY: I don't want -- I don't 19 want to bog us down but Mr. Millar said something just a 20 second ago that I think I do have to address. I don't 21 want to address the merits of -- of the objection, but 22 what I do want to address is -- is the fact that Counsel 23 sometimes have to join in and to argue it, because we may 24 be bound by rules that you made about admissibility. 25 I'm -- I'm in the back end and I can't
2041 necessarily afford to wait for a bunch of rulings to be 2 made -- 3 COMMISSIONER SIDNEY LINDEN: Yes -- 4 MR. JULIAN ROY: -- that I may have 5 something to say about. 6 COMMISSIONER SIDNEY LINDEN: Well, 7 we'll -- 8 MR. JULIAN ROY: I'm trying to -- 9 COMMISSIONER SIDNEY LINDEN: -- deal 10 with -- 11 MR. JULIAN ROY: -- be restrained and 12 only get up when it's important. 13 COMMISSIONER SIDNEY LINDEN: We'll deal 14 with these matters as they arise, Mr. Roy. I understand, 15 but oftentimes that's not what's happening. 16 MR. JULIAN ROY: I -- I intend to stayed 17 glued to my seat on the theory that I'm not going to be 18 necessarily bound -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. JULIAN ROY: -- in terms of issues of 21 relevance on -- 22 COMMISSIONER SIDNEY LINDEN: Affecting 23 your interest. 24 MR. JULIAN ROY: Thank you. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
2051 Yes...? 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: Ms. Jai, you said you were surprised 5 by this paragraph 3. 6 Can you -- can you elaborate on that? 7 COMMISSIONER SIDNEY LINDEN: That's a -- 8 I'm not sure. I -- you -- I don't think that's an unfair 9 question. If she reads this and it surprises her, I 10 think you've asked her what she means by that, it's not 11 an unfair question. 12 THE WITNESS: Okay. Well, just I've -- 13 but it's just what I already said that -- 14 COMMISSIONER SIDNEY LINDEN: You've 15 already said it. 16 THE WITNESS: -- my understanding from 17 the Interministerial Committee meetings was that the 18 adjoining Order would be specifically with respect to the 19 occupiers of the Park, not with respect to other people. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: And so an Order that directs agents 23 and servants of the Government at the behest of the 24 Minister would not have come forward or did not come 25 forward with the approval of the IMC committee.
2061 A: It wasn't discussed at the IMC. I 2 assume Tim or Elizabeth could shed more light on this 3 paragraph when they are called to testify. 4 COMMISSIONER SIDNEY LINDEN: Yes, again, 5 it's not so much that the questions you are asking are 6 improper, but this Witness may not be the best person to 7 be asking. 8 I mean she didn't have anything to do with 9 drafting it and so on. 10 MR. MURRAY KLIPPENSTEIN: Mr. Millar 11 kindly reminded me of the necessity of taking occasional 12 breaks and I don't know if this would be a good time -- 13 COMMISSIONER SIDNEY LINDEN: Yes, I'm 14 sorry. I'm trying to keep my eye on Ms. Jai. This is a 15 good time to take a break. 16 THE REGISTRAR: This Inquiry will recess. 17 18 --- Upon recessing at 2:22 p.m. 19 --- Upon resuming at 2:36 p.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed. Please be seated. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: Ms. Jai, I'd like you, please, to
2071 keep the paragraph 3 of the motion record order request 2 before you, or handy. 3 But, also turn to Commission Counsel 4 binder Tab 25 which is the Minister's briefing note and 5 the memo -- legal memo, on civil and criminal 6 proceedings; that's Tab 25. Sorry, I believe it's Tab 26 7 which is the -- which is part of Exhibit P-549. 8 A: Yes, I have that. 9 Q: You have that. And turn a few pages 10 in to the memo entitled, Criminal and Civil Proceedings 11 to Terminate the Occupation of Ipperwash Provincial Park 12 by the Stoney Pointers. 13 Do you have that? 14 A: Yes. 15 Q: Mr. Scott Hutchison testified that he 16 prepared most of -- or most or all of the first page in 17 all likelihood and probably did so in coordination, or at 18 the direction of yourself, but I'm more interested in the 19 second page for the moment under the title, Civil 20 Proceedings. 21 And this talks about an injunction; is 22 that right? 23 A: Yes. 24 Q: Now, this memo as I understand it was 25 the fruits of the legal subgroup --
2081 A: Yeah. 2 Q: -- that had met on the 5th of 3 September afternoon; is that right? 4 A: Yes. 5 Q: And you were part of that subgroup in 6 some kind of way; is that right? 7 A: Yes. 8 Q: And were you perhaps in a 9 coordination or management role for that subgroup? 10 A: There were just, I think, three (3) 11 of us there, so we were all kind of working together. 12 Q: Okay. And the three (3) were Ms. 13 Christie and Mr. McCabe and yourself? 14 A: Yes, I believe so and I think we 15 communicated with Scott by phone or told him that we 16 needed some material from him. 17 Q: Okay. And can you give me some idea 18 of how you went about -- how the Committee, the group 19 went about preparing this page? 20 Was it something you sat around for five 21 (5) minutes and discussed or did it take most of the 22 afternoon? Did you draft it together? 23 Can you give me a bit of a sense of that 24 if you can recall? 25 A: Well, I can't recall exactly how we
2091 did it. I'm -- I'm sure we spent more than five (5) 2 minutes, it was probably more like an hour or so, 3 approximately, that we met. 4 Q: Okay. 5 A: And I think that we would have 6 discussed the various issues around the injunction and -- 7 and also just tried to make sure that we covered 8 everything that had to be covered in this memo. 9 So, that -- just to make sure that there 10 would have been a section about the criminal procedures, 11 a section about other legislation that we could take 12 action under and then a section on the civil proceedings 13 and then the pros and cons of -- like to make sure that 14 we were putting in some of the advantages and 15 disadvantages of the different legal mechanisms. 16 And then the actual drafting would 17 probably have been done by one (1) person 18 Q: Okay. Now, this -- and this was done 19 on the afternoon of September 5th? 20 A: Right. When I say the actual 21 drafting by one (1) person there are several authors of 22 this document, but for each section -- 23 Q: Right. 24 A: -- one (1) person would have had the 25 pen.
2101 Q: Right. And this was intended to go 2 the Minister as well as other people, is that -- 3 A: Well -- 4 Q: Was it intended for the IMC members 5 as well? 6 A: I believe it was sent to the 7 Interministerial Committee Meeting members, but it was 8 also used to brief our minister -- or to brief Minister 9 Harnick; that was one (1) of the -- one (1) of the things 10 that... 11 Q: And the Civil Proceedings section 12 essentially deals with a court injunction towards the 13 occupiers to remove themselves from the Park; is that 14 right? 15 A: Yes. 16 Q: Now, I don't see anything in this 17 fairly comprehensive and careful description of an 18 injunction, anything about an order directed towards 19 Crown employees about going into the Park to clear out 20 occupiers' possessions. 21 Am I right about that? There's nothing 22 about -- 23 A: Right. 24 Q: There's nothing about -- 25 A: There's nothing in the note about
2111 that. 2 Q: All Right. And do you know if the 3 Minister was ever advised, the Attorney General was ever 4 advised that an order was being sought directed to 5 various Crown civil servants at the behest of ministers 6 for clearing out Park possessions? 7 A: He was not advised of that by me 8 because I know that my briefing of him was quite brief. 9 Q: Right. 10 A: And so we just talked about whether 11 to get an injunction and, you know, I was briefing him 12 both on the facts as well as seeking instructions to 13 proceed with an injunction. So we wouldn't have gone 14 into the details of like the nature of the order that was 15 being sought, the wording or anything like that. 16 Q: Do you know if anybody, to your 17 knowledge, any Crown servants or agents was given notice 18 that a Court Order was being sought that might affect 19 them? 20 A: That might affect them? 21 Q: That -- in which they might be 22 directed by a Minister with Court authority to go into 23 the Park? 24 Do you know if any Crown agents or 25 servants were advised or given notice that that was being
2121 applied for at the Court. 2 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 3 Twohig? 4 MS. KIM TWOHIG: Mr. Commissioner, I'm 5 not sure she can answer this question. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MS. KIM TWOHIG: And she has already 8 testified that she wasn't involved in the drafting of 9 this Order. Ms. Christie -- or Dr. Christie and Mr. 10 McCabe will be hear to answer questions about it. 11 COMMISSIONER SIDNEY LINDEN: I'm not sure 12 about the law of injunctions, either, to be frank. But, 13 I'm not sure if an Order like this isn't reasonably 14 common and -- 15 MR. DERRY MILLAR: We can't hear you, 16 sir. 17 COMMISSIONER SIDNEY LINDEN: I don't know 18 if an Order -- if a paragraph like that wouldn't be 19 almost common in injunction applications. I don't know 20 that, and I'm not sure if she does. 21 MR. MURRAY KLIPPENSTEIN I'll ask her 22 that. 23 COMMISSIONER SIDNEY LINDEN: If there's 24 equipment and if there's any cars blocking and so forth 25 and so on. I mean, I'm not sure if this wouldn't be
2131 almost a corollary to the main injunction. 2 MR. MURRAY KLIPPENSTEIN Well, the -- the 3 -- my question is directed to the fact is that two (2) or 4 three (3) things that it's -- it's a Court Order directed 5 to employees saying whenever a Minister says you do 6 something and the Court Order compels you to do it and 7 it's going into the Park -- 8 COMMISSIONER SIDNEY LINDEN: Yes, but 9 it -- 10 MR. MURRAY KLIPPENSTEIN So -- 11 COMMISSIONER SIDNEY LINDEN: Again, I'm 12 not sure how uncommon this is and I'm not sure that she 13 does. But there must be somebody who could tell us. 14 MR. MURRAY KLIPPENSTEIN Well, I will -- 15 I guess I will have to -- 16 COMMISSIONER SIDNEY LINDEN: How this 17 clause came to be and what it's intention is and so on. 18 MR. MURRAY KLIPPENSTEIN Precisely, and I 19 am trying to see whether this Witness knows anything 20 about it and if not, so be it. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: Have you ever seen a clause like this 24 in any other issue that you've dealt with in government 25 before then or since, in which Crown employees are
2141 ordered to follow Minister's instructions on an 2 injunction? 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 OBJ MS. KIM TWOHIG: I object to this 5 question, Mr. Commissioner, on the basis that we haven't 6 heard whether Ms. Jai has actually seen any other 7 Orders -- 8 COMMISSIONER SIDNEY LINDEN: Well, that 9 would be the first question. That would be the first 10 question: Have you ever seen or been involved in any 11 other situations? 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: Have you seen any other injunctions 15 Orders that were either being applied for or were 16 attained? 17 A: It's possible that I would have seen 18 one (1) or two (2), but certainly it wasn't a regular 19 part of my practice. 20 Q: Okay. And in your involvement with 21 the IMC on various emergencies or blockades, to the 22 extent you were involved with other situations, did you 23 ever see a Court Order directed towards Crown employees 24 to do something at the behest of the Minister? 25 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
2151 Millar? 2 MR. DERRY MILLAR: Well, I guess she can 3 answer that question. 4 COMMISSIONER SIDNEY LINDEN: Yes. Yes, 5 but -- 6 THE WITNESS: Okay, well just with the 7 emergencies that I was involved in where I was not the 8 Chair, I was just a member, I would not have even seen 9 the injunction materials, because that's a level of 10 detail -- it wouldn't have gone to Committee members 11 generally. 12 So, when I was involved previously, I 13 wouldn't have seen these materials. So, I really cannot 14 comment on whether this is a normal paragraph or not. 15 It's really beyond my area of experience. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Well, let me ask you another question 19 about your experience then. You were involved -- you 20 were a member or as -- or manager of ONAS for 21 approximately how many years? 22 A: well, less than two (2) years. 23 Q: Less than two (2) years. And 24 approximately how many employees were within ONAS, 25 roughly speaking? Was it --
2161 A: Maybe -- approximately seventy-five 2 (75). 3 Q: Seventy-five (75). And during that 4 period did you ever see or hear about a court order in 5 which any of those ONAS employees were court ordered to 6 do something that a Minister wanted in respect of an 7 emergency in the Aboriginal field? 8 A: Well, no other emergencies arose -- 9 Q: Okay. 10 A: -- in my -- during my time. 11 Q: Okay. 12 A: So, it -- the issue never arose. 13 Q: Okay. 14 15 (BRIEF PAUSE) 16 17 Q: Still on this memo, but asking about 18 a different aspect of the ex parte application, the memo 19 says on page 2 in the last paragraph, the second 20 sentence, quote: 21 "Apart from the difficulty of 22 persuading the Judge that there is 23 urgency, there is [I think that should 24 say 'in'] an ex parte motion an 25 obligation on counsel to see that full
2171 and frank disclosure is made of all 2 material facts and failure to do so 3 will almost always result in the 4 injunction being set aside as a 5 punitive measure on the motion to 6 continue once the defendants have been 7 served." 8 Do you know whether or not that obligation 9 of full and frank disclosure of all material facts as 10 discussed here, is an obligation that kicks in on an ex 11 parte motion automatically? 12 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 13 Twohig? 14 MS. KIM TWOHIG: Mr. Commissioner, this 15 Witness as I understand it is being asked for her legal 16 opinion about the matter and in my submissions that's not 17 a proper question. 18 COMMISSIONER SIDNEY LINDEN: But, she's 19 already indicated she doesn't have any experience with 20 injunctions. 21 MR. MURRAY KLIPPENSTEIN: All right. I 22 just was asking. 23 24 (BRIEF PAUSE) 25
2181 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: I believe in the questioning by My 3 Friend, Mr. Downard, he put some questions to you about 4 what happens if an ex parte injunction or any injunction 5 is obtained to the affect that there's -- that there's 6 time to -- for people -- for the subjects of the order to 7 go to court or to -- during the subsequent contempt 8 enforcement application to appear before the court, those 9 sorts of things. 10 Do you require -- do you recall that -- 11 that questioning? 12 A: Yes. 13 Q: And some of that was discussed at one 14 of the IMC meetings, is that right; the procedure 15 following the obtaining of a court injunction order? 16 A: There was a brief discussion, yes. 17 Q: Okay. Was there any similar 18 discussion that would pertain to paragraph 3 of the order 19 sought. Namely, where the order says that officers or 20 servants of the Government when they're directed to do -- 21 do something by a minister must forthwith remove 22 materials from within the Park, as to whether there was 23 any opportunity to go before a court on that issues, 24 anything like that? 25 A: This paragraph was never discussed at
2191 the IMC meetings. 2 Q: And that includes the procedure by 3 which paragraph 3 would be implemented, was not 4 discussed? 5 A: Right. 6 Q: And any potential safeguards or 7 issues pertaining to the implementation of paragraph 3 8 were not discussed? 9 A: Right. 10 Q: I now would like to ask you a number 11 of questions, Ms. Jai, on the issue of the surrender or 12 claim surrender of the lands which later became Ipperwash 13 Provincial Park. 14 And to begin with, I'd like to ask you to 15 retrieve the binder involving various meeting notes of 16 the IMC meeting which I provided to you. 17 A: Okay, I have that. I have that 18 binder now. 19 Q: Okay. And I take it it's -- well, 20 let me take a step backwards. I believe the formal 21 meeting notes of September 5th, the IMC meeting and you 22 don't need to pull it up. 23 I don't think it will be a problem for 24 your memory, refer to the case of Mr. Justice Killeen in 25 the Superior Court of Ontario that was released on or
2201 about August 18th, 1995 about two (2) or so weeks before 2 the -- 3 A: Yes. 4 Q: -- occupation, correct? 5 A: Yes. 6 Q: And so that came up at the first IMC 7 meeting on September 5th; is that right? 8 A: Yes, yes it did. That's referenced 9 in the meeting notes from September 5th. 10 Q: All right. 11 A: Do you want me to just read you the 12 sentence -- 13 Q: No, that's okay, I -- I think that's 14 -- that's clear. If you could turn to Tab 8 of the 15 minutes or notes binder, which is, I believe, the 16 evidence will show the handwritten notes of Elizabeth 17 Christie. 18 A: Yes. 19 Q: Of the Aboriginal emergency 20 committee. Do you see that? 21 A: Yes, I do. 22 COMMISSIONER SIDNEY LINDEN: Did you say 23 Tab 8? 24 MR. MURRAY KLIPPENSTEIN I think I said 25 Tab 8.
2211 THE WITNESS: Yes, it's -- 2 COMMISSIONER SIDNEY LINDEN: Mine says 3 Eileen Hipfner so. 4 THE WITNESS: Oh. 5 MR. MURRAY KLIPPENSTEIN: I -- 6 COMMISSIONER SIDNEY LINDEN: 9 is 7 Elizabeth Christie. 8 MR. MURRAY KLIPPENSTEIN One moment, 9 I'll -- 10 COMMISSIONER SIDNEY LINDEN: On my brief. 11 MR. MURRAY KLIPPENSTEIN: Tab 9 and if 12 that's -- 13 THE WITNESS: Oh, this is of the 14 September 5th, like if you -- that binder -- 15 MR. MURRAY KLIPPENSTEIN: I'm sorry, I 16 meant September 5th, if I may -- 17 THE WITNESS: Right. 18 MR. MURRAY KLIPPENSTEIN: -- if I failed 19 to say that. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: So September 5th tab. 23 A: There's two (2) sets of numbers in 24 that binder. 25 COMMISSIONER SIDNEY LINDEN: I'm sorry.
2221 I did -- 2 MR. MURRAY KLIPPENSTEIN I apologize, 3 Commissioner. It was -- 4 COMMISSIONER SIDNEY LINDEN: Now I have 5 it right. 6 MR. MURRAY KLIPPENSTEIN Okay. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: So, those appear to be the -- and I 10 anticipate the evidence will show that those were those - 11 - were the handwritten notes of Elizabeth Christie and 12 the beginning of page 1 mentions an action against the 13 feds and land owners; do you see that? 14 A: Right. 15 Q: And the next line says: 16 "Fed motion for summary judgment --" 17 A: Yes. 18 Q: "Surrender good, private patent 19 valid". 20 Do you see that? 21 A: Yes. 22 Q: That appears to be discussing the 23 August 18th general -- Superior Court Decision; is that 24 right? 25 A: Yes.
2231 Q: And the next sentence says: 2 "That Decision should mean Provincial 3 Park title is good." 4 Is that right? 5 A: Yes. 6 Q: Now, first of all when I look at your 7 notes of September 5th, I don't believe there's any notes 8 by yourself on that discussion of the case. Is that 9 because you were generally aware of it, or you were 10 working on organizing the meeting or something else or 11 does it -- 12 A: I think -- 13 Q: -- is that significant? 14 A: It came up early in the meeting and I 15 guess I was working on organizing the meeting. 16 Q: All right, but do you -- 17 A: And I was -- I was -- it was a matter 18 I was already -- I had already been briefed on. 19 Q: Okay. And tangentially, I see a 20 little lower that Ms. Christie, apparently, has referred 21 to new archeological evidence may have been obtained. 22 And I believe Ms. Perschy questioned you 23 about that. Had you seen this line about new 24 archeological evidence and these handwritten notes 25 before?
2241 A: No, this is the first time I've seen 2 Elizabeth Christie's notes. 3 Q: Okay. 4 MS. KIM TWOHIG: Excuse me, Mr. 5 Commissioner. My concern about this is that we don't 6 know from Ms. Christie whether she prepared her notes 7 before the meeting, with the intention of possibly 8 referring to some of these items at the meeting, or if 9 these are, in fact, notes of the meeting. 10 So to suggest that this might have been 11 said by Ms. Christie at the meeting may not be entirely 12 fair. 13 MR. MURRAY KLIPPENSTEIN I -- My Friend's 14 point is valid. I hope to quickly refer to several other 15 meeting notes that solve that and I -- 16 THE WITNESS: Hmm hmm. 17 MR. MURRAY KLIPPENSTEIN: -- want to use 18 as little time as possible in doing so, but perhaps you 19 could turn, Commissioner and Ms. Jai, to Tab 7. 20 THE WITNESS: Yes. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: Which appears to be Ms. Hipfner's 24 notes. 25 A: Yes.
2251 Q: And which are entitled, "September 2 5th, 1995 Aboriginal Emergencies Committee;" do you see 3 that? 4 A: Yes, I do. 5 Q: And there's some introductory line or 6 two and then point 2 appears to refer to the Court 7 Decision; do you see that? 8 A: Yes. 9 Q: And it appears to say: 10 "Elizabeth: Decision affects Ipperwash 11 Provincial Park - Park 1927 surrender." 12 Is that an approximately reasonable 13 reading of those handwritten notes? 14 A: Yes. And then it says: 15 "Has effect of confirming Ontario's 16 title to the parks lands." 17 Q: Right. 18 A: To "park lands." That's in Eileen's 19 note. 20 Q: Right. 21 MR. DERRY MILLAR: That's Exhibit P-510. 22 MR. MURRAY KLIPPENSTEIN: Thank you, Mr. 23 Millar. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
2261 Q: And if you turn, Ms. Jai, to Tab 10 2 under September 5th in that binder, we have what appear 3 to be, I believe the evidence will show, the notes of 4 Lief Hunter. This is Tab 10 under September 5th. 5 A: Yes. 6 Q: Do you have that? 7 A: Yes, I do. 8 Q: And about two-thirds (2/3's) of the 9 way down, there's a reference to civil suit; do you see 10 that? 11 A: Right. 12 Q: And a line down, there's a number 1 13 that says: 14 "Surrender of land in 1927 was 15 invalid." 16 A: Yes. 17 Q: On the left it says: 18 "Similar claim Park." 19 A: Yes. 20 Q: And then continuing it says: 21 "Patent -- 22 A: Immediately? 23 Q: -- issued -- 24 A: Oh, issued -- 25 Q: -- Patent issued 1929."
2271 A: Oh, issued 1929. 2 Q: "Breached fiduciary duty Federal 3 Government." 4 And when I read this, Ms. Jai, you 5 understand -- 6 A: Yes. 7 Q: -- I'm approximating or what -- 8 A: Yes I understand. 9 Q: -- appears to be a reasonable reading 10 of these handwritten notes. 11 "Federal Government --" 12 A: "-- sought summary judgment." 13 Q: The next line: 14 "Ontario Court general division 1927 15 surrender valid. Patent valid. 16 Cottages title valid." 17 Do you see that? 18 A: Yes. 19 Q: And then further down: 20 "Provincial Park is land that was part 21 of patent." 22 A: Yes. 23 Q: "Provincial -- province purchased 24 from [I don't understand the next word] 25 surrender patent Provincial purchase
2281 therefore decision says our title 2 valid." 3 Is that a fair reading of those words? 4 A: Right. 5 Q: And in the -- and the next line says: 6 "We believe our title to Park is 7 valid." 8 Is that right? 9 A: Yes. 10 Q: Now, I could go into other notes 11 which also discuss this, but in the interest of time I 12 won't do that. But is it fair to say that based on these 13 notes, do you recall or can you confirm that there was 14 discussion of the -- of the Kettle Point surrender 15 decision of August 18th at the meeting? 16 A: Yes. 17 Q: Yes? Yes. And it appears from these 18 notes of various people, that part of the lesson or 19 information or inference that was drawn from this was 20 that it was relevant to the then Ipperwash Park protest; 21 is that fair? 22 A: Yes. 23 Q: And that it was apparently asserted 24 to be relevant because it involved a surrender of Indian 25 lands which were then sold and the title was in dispute
2291 and the court confirmed the title; is that fair? 2 A: Yes. Yes. 3 Q: Okay. So in -- in general and I use 4 those words to suggest, Ms. Jai, that I am making a 5 statement which occurs in a complex situation and I don't 6 mean to try and trick you up on details. But when I say 7 in general I'm just trying to ascertain whether you can 8 confirm with -- you agree with the general point. 9 In general, this discussion of the August 10 18th decision was that there was a surrender of Indian 11 land and the subsequent title was valid -- legally valid. 12 A: Yes. 13 Q: And is it fair to say that that idea 14 that the surrender of Indian land was valid -- valid to 15 the subsequent owner was, or became, as it drew on this 16 particular case, part of the rationale for the next 17 discussion and decisions or recommendations of the IMC; 18 is that fair? 19 A: I think that it increased the 20 confidence that we had valid title to the Park. I -- I 21 do note in the actual meeting notes from September the 22 5th where the -- the decision is referenced and that's -- 23 I believe that's at Tab 22 of the Commissioner's binder. 24 It just says: 25 "There was a recent decision August
2301 18th, 1995 confirming the validity of a 2 surrender by the Stoney and Kettle 3 Point First Nation of land in the West 4 Ipperwash area. This does not deal 5 with the Park." 6 Q: Right. 7 A: So the wording in the minutes which I 8 reviewed and I -- I believe I actually added those words 9 because it wasn't in the previous draft of the minutes, I 10 guess it reflected my concern that I didn't feel that we 11 understood this decision and all of the different 12 surrenders well enough to conclude that just because this 13 one (1) case the Federal Government had been successful 14 in their motion to strike or whatever the motion was, 15 that I felt that we needed to investigate it a bit more. 16 And I just wanted to clarify in the 17 minutes that there was this favourable court decision, 18 but that the court decision did not deal with the Park. 19 Q: And by saying it did not deal with 20 the Park you were clearly indicating that it was not a 21 specific applicable legal precedent which you could 22 absolutely rely on. 23 A: Right. 24 Q: At the same time it appears from 25 these notes, and I understand your comments to be that
2311 there was some reliance on this case as a rationale for 2 the IMC proceeding in a surrendered Indian land 3 situation. 4 You -- this fed into your decision making; 5 is that right? 6 A: It was -- I think that we already 7 felt that the title was valid from the work that had been 8 done to sort of trace the chain of title, but this, I 9 think, was something that made -- gave people greater 10 confidence that there was less likelihood that there 11 would be, for example, a legal challenge to the validity 12 of the surrenders since the legal challenge to a similar 13 surrender had not been successful. 14 Q: Now, as I understand it, the -- 15 another significant or potentially significant difference 16 between the August 18th case -- before I do that let me 17 take a step. 18 Clearly the August 18 case had been read 19 and considered and was discussed at the meeting? 20 A: Well, some people had read it. 21 Q: Right. 22 A: In fact I'm quite sure that I myself 23 had not had time to read it by the time of this meeting; 24 that was another reason why I was not 100 percent 25 confident that the facts -- that the -- one could draw an
2321 analogy from this case directly to whatever the title 2 history for the Park was. 3 Q: But some people had read it, it would 4 appear? 5 A: Yes, some people had read it. 6 Q: And the comments we find in the notes 7 were input into the Committee's discussion? 8 A: Yes. 9 Q: However -- and you've mentioned one 10 (1) distinction between that decision and the -- the 11 consideration or the situation you were considering, 12 which was, it was a different surrender. 13 Another distinction, you can tell me if 14 you're aware of this or if you agree, was that in the 15 August 18th decision none of the land was owned by the 16 Crown, whereas at Ipperwash Park some of the land was 17 owned by the Crown? 18 A: Yes. 19 Q: Would you agree with me that is 20 potentially a significant distinction since the Crown may 21 have different obligations than other private landowners; 22 is that fair? 23 A: Yes. 24 Q: And so you've mentioned the two (2) 25 items that were relied on, I believe, by the Committee
2331 members or some of them in this discussion with respect 2 to the Ipperwash Provincial Park, and one (1) was the 3 surrender that was found in the chain of title of the 4 Park itself; is that fair? 5 A: Yes. 6 Q: And the other one is this court 7 decision made two (2) weeks before the protest in which 8 the Court said the challenge surrender is valid? 9 A: Yes. 10 Q: Correct. So the surrender of the 11 Park by the native people was central to the Government's 12 position in this issue? 13 A: Well the fact that the Government 14 felt that it had valid title to the Park was a key 15 component of the context in which we made the decisions. 16 Q: Right. And -- 17 A: And we believed that we had valid 18 title. 19 Q: Right. And since you weren't dealing 20 with non-native campers claiming the Park, you were 21 dealing with First Nations people, for the purposes of 22 this particular issue, the essential ingredient there was 23 the surrender; is that right? 24 A: Yes. 25 Q: And so when we later -- well, let me
2341 turn to another document. One moment's indulgence here. 2 If you turn in the Commission Counsel's 3 document brief to Tab 25. 4 5 (BRIEF PAUSE) 6 7 A: Is that my e-mail from Tuesday, 8 September the 5th -- 9 Q: Yes. 10 A: -- to Yan Lazor? 11 Q: Yes. 12 A: Okay. That's P-649. 13 Q: Yes, thank you. Inquiry document 14 1011769. And this is an e-mail that you made at about 15 2:27 p.m. in the afternoon of the 5th, after the 16 Interministerial Committee meeting; is that right? 17 A: Yes. 18 Q: And the second paragraph says: 19 "After lengthy discussion, it was 20 agreed: 21 That MNR would be the spokesperson for 22 today -- 23 A: Yes. 24 Q: -- but OPP on the ground can also 25 respond to media; that the messages
2351 would be: 2 The Province has valid title to the 3 Park." 4 Right? 5 A: Yes. 6 Q: So you're summarizing that, at least 7 for public presentation purposes, it was agreed that the 8 message would be the province has valid title to the 9 Park; is that right? 10 A: Yes. 11 Q: So, after the September 5th meeting 12 and by the afternoon of September 5th, the Government is 13 now positioned to publicly take the position that the 14 Government has valid title to the Park; that is the 15 surrender is not -- the surrender is valid; is that 16 right? 17 A: Yes. 18 Q: Yes. And not -- not only is the 19 Government taking that position publicly, I'm going to 20 suggest the Government was at least planning to rely on 21 that decision in Court. And if you could turn to Tab 33 22 of Commission Counsel's document book, which is Inquiry 23 Document 1011797. 24 My Friend, Ms. Twohig has raised a 25 question about the wording of my question and I'll seek
2361 to clarify what I mean. If there's any further problems 2 I'm sure Ms. Twohig will poke me in the back. 3 This appears to be, by its title, "notes 4 re. Affidavit for injunction motion, September 6, '95;" 5 is that fair? 6 A: Yes. 7 Q: Do you happen to know who's notes 8 these are? I assume the evidence will come out but I 9 don't know at this point. 10 A: I do not know, other than I would 11 assume it would be Leith Hunter, but I -- 12 Q: Okay. 13 A: And I could check just the -- the 14 index of the document binder, but I have no independent 15 knowledge of Leith's handwriting. 16 Q: Okay. My point is simply in the 17 first two (2) lines, which say: 18 "Prove Crown land - decision approves 19 patent." 20 Do you see that? 21 A: Yes. 22 Q: Would you agree with me, and this is 23 going to be subject to evidence if it's not correct, I 24 believe the evidence will say -- will show that at this 25 point at least, the intention of the apparent plan was to
2371 include the Court Decision in the Court materials to show 2 the Crown's title to the land, fair? 3 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 4 Twohig? 5 MS. KIM TWOHIG: I'd like to object to 6 this question in that Ms. Jai has testified that she was 7 not involved in the drafting of materials for the 8 injunction application. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. MURRAY KLIPPENSTEIN: All right. 11 I'll withdraw that question. 12 13 (BRIEF PAUSE) 14 15 MR. MURRAY KLIPPENSTEIN: A moment's 16 indulgence, Commissioner, if I may? 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 21 Q: And if you could turn in the small 22 binder of meeting notes which I've provided to... 23 A: What tab? 24 Q: I'm just -- to Tab 4 which appears to 25 be the handwritten notes of Anna Prodanou from September
2381 5th, 1996? 2 A: Yes, I have those. 3 Q: Do you have that? And Ms. Prodanou, 4 in the second line, refers to what appears to be land 5 claims and to 1825 and 1827 treaties; is that right? 6 A: Yes. 7 Q: So there appears to have been a 8 reference in those meetings -- in that particular meeting 9 at the beginning to treaties; is that fair? 10 A: Yes. 11 Q: And the relevance of that would be 12 that if there were treaties confirming native rights to 13 land, then the surrender is key because that is the 14 general way of having land passed from native ownership 15 or control to Crown or non-native ownership or control? 16 A: Yes. 17 Q: Okay. And in this particular 18 situation and I -- I can certainly bring you to the 19 document, in fact I'll do it very briefly. In the large 20 binder I've provided I've included, at Tab 14, Inquiry 21 Document 4000023, and I won't belabour this, a copy of 22 the typed -- typed version of Treaty 29; do you see that? 23 A: Yes. 24 Q: And not to belabour this, but at the 25 bottom of page 72 of that document there's a -- there's
2391 three (3) lines that are underlined; do you see that? 2 A: Yes. 3 Q: And the gist of those three (3) lines 4 is that certain lands are reserved to the relevant 5 Chippewa nation and their posterity at all times 6 hereafter for their own exclusive use and enjoyment and 7 subject to your check. 8 Can you accept that that's the general 9 treaty right to the lands that include the Stoney Point 10 Reserve? 11 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 12 Twohig...? 13 MS. KIM TWOHIG: Thank you, Mr. 14 Commissioner. I'm concerned here that Ms. Jai is not 15 being asked what was discussed at the meeting or on what 16 basis certain recommendations were made to the ministers, 17 but is being asked now to comment on the contents of the 18 treaty and it doesn't appear to me that this would be a 19 useful or appropriate exercise with this Witness. 20 MR. MURRAY KLIPPENSTEIN: Commissioner, 21 I'm trying to be very careful to save time by not being 22 detailed and on the other hand I respectfully submit this 23 might be a legitimate line of questioning because the 24 notes of the meeting show that this particular treaty was 25 apparently referred to and apparently was relevant to the
2401 surrender, which is in turn relevant to the title 2 argument. 3 COMMISSIONER SIDNEY LINDEN: Yes. Well, 4 you could make that point without specific reference to 5 the language of the treaty I think. You'll know doubt 6 ask for her to comment on that. 7 MR. MURRAY KLIPPENSTEIN: Yes. Yes. And 8 I -- I am trying to strike the right balance between 9 conciseness and thoroughness and -- 10 COMMISSIONER SIDNEY LINDEN: All right. 11 MR. MURRAY KLIPPENSTEIN: -- I usually 12 don't get it right but. 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: Can you confirm, Ms. Jai, that this 16 would be the, subject to your check, because I don't want 17 to feel you trying -- I'm trying to trick you, that this 18 would be the 1827 Treaty which essentially provides 19 Native rights to the Stoney Point Reserve? 20 A: I can't confirm that. It's -- 21 Q: Okay. 22 A: -- I don't know if this was the 23 Treaty. 24 Q: Okay. We've heard evidence that this 25 was in fact the Treaty which -- which provided rights to
2411 the Stoney Point Reserve that included the Ipperwash 2 Provincial Park and the sandy parking lot next to it. 3 But you don't feel comfortable discussing this particular 4 document with me. 5 A: Well, I don't have my -- I don't have 6 enough -- I haven't spent time studying this document to 7 really know if this is the Treaty or to really speak to 8 the contents of it. 9 Q: All right. Fair enough. But we -- 10 we talked about the -- the Surrender which was a part of 11 the title that the Province was claiming and the 12 Surrender is important -- is often important because 13 there are underlying or previous treaty rights and that 14 appear to be the case here; is that fair? 15 A: Yes. 16 Q: And by the way, Ms. Jai, I -- I hope 17 you understand I'm not trying to trick you with 18 technicalities. It is clear from your CV that you have 19 enormous knowledge and experience on these issues and I 20 don't presume to think I could trick you on details on 21 this. 22 23 (BRIEF PAUSE) 24 25 We've heard evidence from a number of
2421 Native witnesses before this, including an occupier of 2 the Park as part of the protests, Mr. Warren George and 3 Ms. Bonnie Bressette, she's a former Chief of Kettle 4 Point and my own client Sam George. 5 And it would appear the views on this 6 point were also shared by Dudley George who obviously 7 can't speak for himself, but they've testified at this 8 Inquiry that they did not believe that the Surrender of 9 the lands that included the Park lands was in their view 10 valid. 11 A: Hmm hmm. 12 Q: Now I would like to ask you some 13 questions about certain aspects of that Surrender with 14 respect to those positions taken by witnesses. 15 And I wonder if you could turn to the 16 large binder I've provided to you and Tab 29. 17 COMMISSIONER SIDNEY LINDEN: I'm not sure 18 why you think Ms. Jai can answer any questions about the 19 Surrender. Is that what you were going to say, Ms. 20 Twohig? I'm not sure. 21 MS. KIM TWOHIG: Yes, I was. It appears 22 that she's being asked to comment on comments made by 23 other people on the Treaty and that that's not an 24 appropriate question for her. 25 MR. MURRAY KLIPPENSTEIN: I didn't mean
2431 to suggest that she -- she would be asked to comment on 2 those comments. I'm just trying to get some idea of 3 where I'm -- where I'm headed and why I'm asking this. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: If you could -- and I'll explain that 7 hopefully slightly more clearly in a few moments. If you 8 could turn to Tab 29 which is some selected excerpts of 9 the Indian Act from 1927. 10 A: Yes. 11 Q: First of all, you've had, from what 12 is apparent from your CV, a great deal of experience in a 13 large number of First Nations legal issues; is that fair? 14 A: Well, most of my experience with 15 First Nations legal issues was after I left the Ontario 16 Native Affairs Secretariat. So, it was not knowledge 17 that I had at that time. 18 And I would also say that my expertise is 19 primarily with respect to modern day treaties as opposed 20 to historic treaties like the one that was involved in 21 this case. 22 Q: But you have some familiarity with 23 the Indian Act? 24 A: Some. 25 Q: You probably have quite a bit of
2441 familiarity with the Indian Act? 2 A: No. Only a limited amount I would 3 say. 4 Q: I see. Okay. Do you have enough 5 awareness to comment on whether many of the Indian Act 6 provisions have remained constant over the decades more 7 or less; is that fair? Can you -- 8 A: I wouldn't know. 9 Q: Okay. Do you know anything about -- 10 let me rephrase that. In your experience over the last 11 decade or more, have you dealt with modern treaties? 12 A: Yes, I've dealt with modern treaties. 13 Q: And have some of those modern 14 treaties that you've dealt with involved surrenders? 15 A: No. 16 Q: Okay. Have you dealt with surrenders 17 at all in your studies or your work or your 18 professional -- 19 A: Well, only while I was ONAS -- 20 Q: I see. 21 A: And that came up in the context of 22 land claims where often the -- you know, we would receive 23 claims and sometimes the basis for a land claim would be 24 that the surrender was invalid. So, that would be a 25 legal issue that we would investigate.
2451 So, in that context, I mean, certainly we 2 were aware at the time and I was aware at the time that 3 there were certain surrenders that were likely legally 4 challengeable. 5 Q: Hmm hmm. 6 A: Because this had come up in other 7 land claim cases that the Secretariat had dealt with. 8 Q: Right. 9 A: So -- but at the time of the 10 Interministerial Committee meetings, we believed that we 11 had valid title to the Park and we had no indication that 12 there was any legal problem with the surrender. 13 Q: And the surrender was -- was the 14 central part of that position? 15 A: Yes. 16 COMMISSIONER SIDNEY LINDEN: Mr. 17 George...? 18 OBJ MR. JONATHON GEORGE: Commissioner, I 19 really do object to that at some early point here, 20 because I think it's not within the mandate of the 21 Commission to examine the validity of the surrender I 22 fail to see the usefulness -- 23 COMMISSIONER SIDNEY LINDEN: No. 24 MR. JONATHON GEORGE: -- of this kind of 25 evidence.
2461 COMMISSIONER SIDNEY LINDEN: Well, I'm 2 having some difficulty myself, but Mr. Klippenstein 3 usually knows where he's going. 4 Where are you going? 5 MR. MURRAY KLIPPENSTEIN I'm puzzled by 6 the comments of My Friend, because -- 7 COMMISSIONER SIDNEY LINDEN: Well -- 8 MR. MURRAY KLIPPENSTEIN -- I'm asking 9 about this surrender with relation to the Park because as 10 My Friend -- as Ms. Jai has mentioned a number of times 11 and as the documents show, it was a central part of the 12 position taken by the Government at the time. 13 COMMISSIONER SIDNEY LINDEN: But she 14 can't help us with respect to whether it was a valid or 15 an invalid surrender, I don't think. 16 MR. MURRAY KLIPPENSTEIN I don't propose 17 to ask about legal validity in a legal sense. I do wish 18 to ask questions of applicable witnesses which may or may 19 not be Ms. Jai, about some of the other factors related 20 to a surrender, this particular surrender -- 21 COMMISSIONER SIDNEY LINDEN: Well -- 22 MR. MURRAY KLIPPENSTEIN And if I can 23 clarify what I mean by that. 24 COMMISSIONER SIDNEY LINDEN: Well, you're 25 saying not Ms. Jai. I don't want to deal with other
2471 witnesses yet. When they're called, you may have 2 questions for them that are quite legitimate and within 3 the realm of their ability to answer. I'm just not sure 4 where you're going with this Witness. 5 Ms. Jai has indicated she hasn't had any 6 real experience with the kind of issues that you're 7 asking her about. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: Okay, Ms. Jai, if I could ask you 11 about another Court Decision, around that time, as to 12 whether or not you had any familiarity with it. And that 13 would be found at -- in the second binder at Tab 28. 14 MS. KIM TWOHIG: Excuse me, Mr. 15 Commissioner. I'm loathe to continue interrupting My 16 Friend -- 17 COMMISSIONER SIDNEY LINDEN: No, I think 18 you -- 19 MS. KIM TWOHIG: -- but I feel I must -- 20 COMMISSIONER SIDNEY LINDEN: -- have to, 21 and I'm grateful for you to do it, because it's important 22 that we have this on the record. 23 MS. KIM TWOHIG: It appears that My 24 Friend is about to ask Ms. Jai to comment on Court cases 25 and she's be -- she would be asked to do that as a
2481 lawyer providing a legal opinion to this Commission. And 2 I submit that it's the job of the Commissioner to 3 determine what law, if any, may be applicable in the 4 circumstances or to interpret cases as appropriate, but 5 not the role of a witness who's not called as an expert 6 before the Commission. 7 COMMISSIONER SIDNEY LINDEN: Well, I 8 don't know where Mr. Klippenstein is going, so I'm not 9 sure if he's going to be asking her to interpret legal 10 cases. I hope that's not what he's doing, but I'm not 11 sure. 12 MR. MURRAY KLIPPENSTEIN Maybe I can ask 13 my questions step by step and we can see where I -- 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. MURRAY KLIPPENSTEIN -- whether I end 16 up on the road or in the ditch. 17 18 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 19 Q: At Tab 28, Ms. Jai, we have another 20 Ontario Court of Justice Decision by Mr. Justice Killeen 21 dated July 7th, 1995; do you see that? 22 A: Yes. 23 Q: And this appears to also involve the 24 Chippewas of Kettle and Stony Point and relate to the 25 Ipperwash Military Base lands; is that fair?
2491 A: Yes. 2 Q: Yes. So this was released by the 3 Court about three (3) weeks before the occupation of the 4 Provincial Park began; is that right? 5 A: Yes. 6 Q: Do you recall that this decision came 7 out around about then? 8 A: No. 9 Q: Do you know if you were made aware of 10 this decision in any way around about then? 11 A: It's possible someone mentioned it to 12 me, but I don't recall. We weren't a party and it didn't 13 involve any Ontario Government issues. So, it -- it 14 wouldn't have been something that I would have as a 15 matter of course focussed on. 16 Q: If you could turn to page 113 of the 17 decision and I'm just going to ask this not as a strictly 18 legal question, but on page 113 in the first full 19 paragraph beginning, "In summary" you see the sentence -- 20 A: Yes. 21 Q: -- "The language", at page 1. 22 Do you see that? 23 A: Yes. 24 Q: "The language at page 1 referring to 25 a possible negotiated settlement and
2501 future resale back to the Band may 2 create moral or even fiduciary duty 3 problems for the Crown, but do not have 4 any affect on the title of the Crown." 5 End of quote. 6 COMMISSIONER SIDNEY LINDEN: Well, I'm 7 not sure where you're reading from, but I'm not sure what 8 you're reading. 9 MR. MURRAY KLIPPENSTEIN: Okay. 10 COMMISSIONER SIDNEY LINDEN: Where are 11 you reading from -- 12 MR. MURRAY KLIPPENSTEIN: I apologize, 13 this is at Tab 28 and -- 14 COMMISSIONER SIDNEY LINDEN: I'm at Tab 15 28. You said page 113? 16 MR. MURRAY KLIPPENSTEIN: At page 113 of 17 the court decision. 18 COMMISSIONER SIDNEY LINDEN: I'm at page 19 113. 20 MR. MURRAY KLIPPENSTEIN: And in the 21 paragraph beginning, "In summary..." near the top of the 22 page? 23 COMMISSIONER SIDNEY LINDEN: Yes, "In 24 summary it's my firm view..." is that where you're 25 reading?
2511 MR. MURRAY KLIPPENSTEIN: Yes, and it is 2 the third sentence I've been reading. 3 COMMISSIONER SIDNEY LINDEN: All right. 4 "The language at page 1". 5 MR. MURRAY KLIPPENSTEIN: I apologize for 6 not being clear, I'll re-read it. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. MURRAY KLIPPENSTEIN: "The language 9 at page 1 referring to a possible 10 negotiated settlement and future resale 11 back to the Band may create moral or 12 even fiduciary duty problems for the 13 Crown, but do not have any affect on 14 the title of the Crown." 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: In the -- in the statements and 18 records of the Committee members and in the positions 19 taken by the Committee I see repeatedly statements 20 similar to this such as whatever the burial ground 21 situation is, it doesn't affect the title of the Crown; 22 is that right? 23 A: Yes. 24 Q: Now, my question to you is: Would 25 you agree that just as the Court here says that such
2521 situations may create moral or fiduciary duty problems 2 for the Crown even if they don't have an affect on the 3 title of the Crown, that's a possibility, right? 4 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 5 Twohig? 6 MS. KIM TWOHIG: I can't understand that 7 question in any other way than Mr. Klippenstein asking 8 her to comment on the potential correctness of that 9 decision -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MS. KIM TWOHIG: -- and its possible 12 application to these circumstances. 13 COMMISSIONER SIDNEY LINDEN: Yes. It's 14 beyond her ability and it's not something that I need to 15 hear from this Witness to help me. I'll hear it from you 16 I presume in your argument when you make reference to it. 17 MR. MURRAY KLIPPENSTEIN: All right. 18 I'll -- I'll withdraw the question. 19 20 (BRIEF PAUSE) 21 22 MR. MURRAY KLIPPENSTEIN: I wonder if 23 this is a good time to have a break? 24 COMMISSIONER SIDNEY LINDEN: We try to 25 take a break approximately every hour --
2531 THE WITNESS: Hmm hmm. 2 COMMISSIONER SIDNEY LINDEN: -- and I see 3 Ms. Jai needs a break now. It's 3:30, we'll take a short 4 break now and then we'll continue and conclude at 4:30. 5 Thank you. 6 THE REGISTRAR: This Inquiry will recess. 7 8 --- Upon recessing at 3:30 p.m. 9 --- Upon resuming at 3:48 p.m. 10 11 THE REGISTRAR: This Inquiry is now 12 resumed. Please be seated. 13 COMMISSIONER SIDNEY LINDEN: Mr. 14 Klippenstein? 15 Do you want to say -- I understand that 16 there's a chance that you might complete your examination 17 today -- 18 MR. MURRAY KLIPPENSTEIN: Yes. 19 COMMISSIONER SIDNEY LINDEN: -- if we go 20 approximately another hour? 21 MR. MURRAY KLIPPENSTEIN: Yes. I -- I 22 will probably be able to do that and I will possibly be 23 able to do it by 4:30. I'll make that my target. 24 COMMISSIONER SIDNEY LINDEN: I just don't 25 want to keep Ms. Jai --
2541 MR. MURRAY KLIPPENSTEIN: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- much more 3 than another hour, but whatever. 4 MR. MURRAY KLIPPENSTEIN: Yes, thank you. 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: Ms. Jai, if you could take the second 8 larger binder that I've provided to you and turn to Tab 9 3. 10 A: This is the binder of notes or the 11 large binder? 12 Q: The larger binder of other documents. 13 At Tab 3 we have a page and I'll be asking you questions 14 about the top one-third (1/3) of the page. I believe the 15 evidence is or will be that those are the handwritten 16 notes of Larry Taman and they say: 17 "ONAS meeting re. Ipperwash AG 18 instructed by P that he desires removal 19 within twenty-four (24) hours. 20 Instructions to seek injunction." 21 Do you see that? 22 A: Yes, I do. 23 Q: Now there's two (2) tings about this 24 note that I want to ask about because they appear to have 25 some connection to some of your notes. And I just wanted
2551 to know what if anything there is connecting with you -- 2 the -- 3 A: I don't know if this is Larry's 4 writing or Yan Lazor's writing. 5 Q: Okay. I believe the evidence will be 6 that this is Mr. Taman's writing. 7 A: Okay. 8 Q: Okay. 9 COMMISSIONER SIDNEY LINDEN: Is this 10 document already an exhibit or are you going to be -- 11 MR. MURRAY KLIPPENSTEIN: To be honest, I 12 think it must be. I think it is but I don't know 13 actually. 14 COMMISSIONER SIDNEY LINDEN: I'm not sure 15 that I've seen it before so. 16 MR. MURRAY KLIPPENSTEIN: Okay. Perhaps 17 if there's uncertainty it should be made an exhibit. 18 MR. DERRY MILLAR: Actually I'm just 19 trying to check on it to see if it is. 20 COMMISSIONER SIDNEY LINDEN: Okay. Well, 21 before we make it an exhibit we'll make sure it isn't all 22 ready. 23 MR. MURRAY KLIPPENSTEIN: I believe it's 24 P-550. 25 COMMISSIONER SIDNEY LINDEN: Okay I have
2561 a note of it. Okay. P-550. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: And let me just reference two (2) 5 things in those note and then ask you some questions 6 about it. 7 First of all, the note refers to removal; 8 do you see that? 9 A: Yes. 10 Q: And to me there's a similarity to the 11 comment in your September 6th meeting notes about the 12 Premier wants them out. 13 A: Yes. 14 Q: The removal and the out -- 15 A: Yes. 16 Q: -- seem to be similar to me. And the 17 second point that I just want to raise before I ask you 18 questions about is the reference to within twenty-four 19 (24) hours which again seems to be similar to the 20 reference in your notes about out within a day or two. 21 A: Yes. 22 Q: And I guess thirdly, this appears to 23 be realistically speaking, a reference to what the 24 Premier wishes or is instructing. 25 A: Yes.
2571 Q: Now my question to you is given those 2 apparent similarities, do you know anything about the 3 information in this note? 4 In other words, does it have any relation 5 to what you put in your notes? 6 Did you talk to Larry about this 7 information? I shouldn't say Larry, Mr. Taman. 8 Do they have similar sources? 9 Do you know anything about that apparent 10 similarity that would explain it, to your knowledge? 11 A: I don't know when -- I mean as I 12 said, I probably spoke to Larry at some point but I don't 13 know that he would have got -- I don't think he would 14 have gotten this information from me, but I don't know. 15 Q: Okay. 16 A: I mean he -- he was at that meeting 17 on September the 6th as well with the Premier and the 18 Attorney General. So that could also have been another 19 source. But basically I'm saying, I don't know -- 20 Q: Okay. 21 A: -- the source of his information when 22 he made this note. 23 Q: Okay. Let me ask about the 24 possibility that you spoke with him and that this was -- 25 was his notes of what you said. This says, "AG
2581 instructed by P." Would -- did you ever say anything 2 like that to Mr. Taman? 3 A: No. 4 Q: And this says that he desires 5 removal. 6 A: Hmm hmm. 7 Q: Do you know if he used the word 8 'removal'? 9 A: I don't recall. But, I -- you -- I 10 think the first point is that I would not have said to 11 the Deputy Attorney General that the Attorney General was 12 instructed by the Premier. That he desires removal 13 within twenty-four (24) hours. 14 So, as a result that suggests that Larry 15 got this information from some source other than me. 16 Q: Okay. 17 MR. DERRY MILLAR: Just for the record, 18 Commissioner, the -- this is -- this note is Exhibit P- 19 550 under Inquiry Document 3000776. 20 COMMISSIONER SIDNEY LINDEN: On this page 21 it has its own document number, right? 22 MR. DERRY MILLAR: Well no. 23 COMMISSIONER SIDNEY LINDEN: Yes. No? 24 MR. DERRY MILLAR: It's a part of a 25 series.
2591 COMMISSIONER SIDNEY LINDEN: Okay. 2 MR. DERRY MILLAR: So, in the actual 3 Exhibit P-550 just one (1) page is marked. 4 COMMISSIONER SIDNEY LINDEN: The exhibit 5 -- one (1) page Exhibit, P-550? 6 MR. DERRY MILLAR: Yes. Well, it's got a 7 cover sheet but it's a one (1) page note. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: Can I ask you, in relation to this or 13 also more generally, Ms. Jai, we've talked a little bit 14 about the concept of AG lawyers and legal Counsel getting 15 instructions in the context of this injunction and at 16 some point I believe you meant -- you mentioned or talked 17 about you passing on instructions to the legal Counsel; 18 is that right? 19 A: Yes. 20 Q: Now, is it fair to say that you and 21 others such as Mr. McCabe and Ms. Christie are both civil 22 servants and lawyers? 23 A: Yes. 24 Q: Yes. So, you take instructions, both 25 as employed civil servants and as lawyers; is that --
2601 A: Yes. 2 Q: -- fair? Yes. And you have 3 employment obligations and standards as employees and you 4 have professional obligations as lawyers; is that right? 5 A: Yes. 6 Q: But you report to other people who 7 give you directions and generally speaking, you must 8 follow those directions; is that fair? 9 A: Well, lawyers in the Ontario 10 Government are all employees of the Attorney General, so 11 formally we all report to the Attorney General. However, 12 we're -- many lawyers are co-located with their clients. 13 So, for example, ONAS was my client and 14 the legal services branch was -- worked very closely with 15 their client ONAS and would give them advice and would 16 also assist the client department in meeting their 17 objectives based on whatever legal assistance we could 18 provide to them. 19 However, ultimately -- our ultimate 20 reporting relationship would be to the deputy Attorney 21 General and the Attorney General. 22 Q: And would that apply -- and I don't 23 know the fine points of the delineations in the -- in the 24 department. 25 Would what you said apply to Mr. McCabe
2611 and Ms. Christie as well, to your knowledge? 2 A: In their case it's -- they were 3 working directly within the Ministry of the Attorney 4 General, so they didn't have the -- the close 5 relationship with a client that someone working in the 6 legal services branch would have. 7 So, they reported directly to, you know, 8 the -- well, not directly to the deputy but to the 9 director of the Crown Law Office, Civil, who would report 10 to the assistant deputy Attorney General, Civil Law, who 11 would report to the deputy Attorney General, who reported 12 to the Minister. 13 So, that was the chain of command. 14 Q: And who were the personalities at 15 that point in the chain you've just mentioned? 16 The director of Crown Law Civil would be - 17 - would have been at that time; do you know? 18 A: I can't recall. 19 Q: Do you know who the ADM or assistant 20 deputy Attorney General at that time was? 21 A: For civil law? 22 Q: Yes. 23 A: I can't -- 24 Q: Or -- 25 A: I can't recall. The personalities
2621 changed a lot and I was with the Province for fourteen 2 (14) years during which all of these people changed jobs 3 many, many times, so... 4 Q: Would the names Murray Segal or Mark 5 Rosenberg have come up? 6 A: Well Murray Segal, I believe, was the 7 ADAG criminal law, although whether that was at this 8 time, I can't say. 9 At one point, both Murray and Mark were 10 the ADAG's Criminal Law. 11 Q: Okay. And the deputy AG at that 12 point was -- 13 A: Was Larry -- Larry Taman. 14 Q: Larry Taman, okay. Do you have 15 knowledge of whether or not either Murray Segal or Mark 16 Rosenberg were involved in giving instructions or 17 directions to Elizabeth Christie and Mr. McCabe on this 18 particular issue of the injunction? 19 A: Well, I have no idea, but I doubt 20 that they would because they are on the criminal side and 21 Mr. McCabe and Ms. Christie were on the civil side. 22 Q: And was Mark Rosenberg on the 23 criminal side as opposed to the civil side? 24 A: He was on the criminal side also. 25 MS. KIM TWOHIG: Mr. Commissioner,
2631 perhaps I could assist here. I believe Mark Rosenberg at 2 that time was the Assistant Deputy Attorney General for 3 the civil division -- 4 THE WITNESS: Oh. 5 MS. KIM TWOHIG: -- and Larry Taman was, 6 of course, the Deputy. But Murray Segal would have been 7 the Assistant Deputy for Criminal Law. 8 I hope that assists My Friend. Don 9 Chaisson (phonetic) I believe, was the Director of the 10 Crown Office Civil. 11 THE WITNESS: Okay, thank you very much. 12 That is helpful. Sorry, for some reason I thought Mark 13 was also on the criminal side, but just at a different 14 time -- Murray. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: That's helpful and I now have a few 18 questions in in cross-examination of Ms. Twohig. Thank 19 you, Ms. Jai. 20 Do you happen to know whether any of the 21 personalities we've just mentioned, other than Larry 22 Taman who we've discussed separately, were involved at 23 that time in giving instructions or directions to Mr. 24 McCabe or Ms. Christie? 25 A: I don't know.
2641 Q: Okay. Now would all of those be 2 subject to the direction of the Attorney General at the 3 time? 4 A: Yes. 5 Q: And do you have any knowledge about 6 whether the Premier had any role in giving instructions 7 or directions to legal counsel in the Attorney General's 8 department? 9 A: That would not normally ever happen. 10 Q: Do you know whether the Premier has 11 any -- had any role at that point in terms of the 12 organizational structure or lines of authority in giving 13 directions or instructions to the Attorney General 14 himself with respect to, specifically, legal matters such 15 as an injunction application? 16 A: Normally not. Normally the Attorney 17 General is considered the chief law officer of the Crown 18 and is supposed to give -- to be the person who gives 19 legal advice to Cabinet. Of course that's based in part 20 on the advice that he receives from the public service. 21 So, there might be some situations in 22 which the Attorney General would brief Cabinet on a 23 particular legal matter that was coming up or in which 24 some major policy decision would be made like let's say a 25 position to take in a case going to the Supreme Court of
2651 Canada or something like that. 2 So, there would be some situations where 3 the Attorney General might involve his Cabinet colleagues 4 on something where it's sort of a major policy issue and 5 for that reason, Cabinet input is sought. But in terms 6 of legal advice, the Attorney General would normally be 7 the final word. 8 Q: Okay. And I -- I believe the 9 evidence will show that, at the time of these events, the 10 Attorney General Mr. Charles Harnick had, in fact, been 11 certified as a specialist in civil litigation by the Law 12 Society of Upper Canada, going back to about 1991. Do 13 you know any information about that? 14 A: I didn't know that at the time. 15 Q: But -- 16 COMMISSIONER SIDNEY LINDEN: Now someone 17 is going to have to cross-examine you, you just gave some 18 evidence. 19 MR. MURRAY KLIPPENSTEIN: I think I said 20 I believe the evidence will show and I think that's my 21 escape hatch. 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: The -- the possibility of an 25 injunction with respect to an Ipperwash Park application
2661 had been discussed for days or weeks before the actual 2 occupation happened, I believe; is that fair? The 3 evidence -- 4 A: Certainly it was -- even at the 5 August 2nd meeting there was an awareness that if an 6 occupation occurred one (1) of the potential things that 7 could -- remedies or ways of potentially removing 8 occupiers would be the seeking of a civil injunction. 9 Q: And is it fair to say that 10 preparation of the materials for a court injunction had 11 already been underway for some weeks before the Labour 12 Day weekend, in terms of research of title and similar 13 issues; is that fair, do you know? 14 A: I think that we had done some 15 research on title and I don't know what MNR was doing. 16 It's quite possible that they were doing some preparatory 17 work. 18 Q: And do you know when the actual 19 affidavits and well, the actual affidavits used in the 20 injunction were made, approximately? 21 A: I know that they were finalized just 22 before the -- the actual hearing, but I don't know the 23 whole -- 24 Q: Okay. 25 A: -- genesis of them and how long they
2671 had been worked on. 2 Q: And there had been discussion of an 3 injunction certainly by the morning of September 5th, 4 obviously. 5 A: Yes. 6 Q: So the lawyers concerned probably 7 knew they were going to be preparing court materials -- 8 A: Yes. 9 Q: -- and probably started by that time 10 roughly; is that correct? 11 A: Well it's possible. You'd have to 12 ask those lawyers. 13 Q: Now we've looked at the issue of the 14 formal requirement for full and frank disclosure that's 15 required when a motion is made without notice to the 16 other side. 17 And would you agree with me, having been 18 involved in this, that that puts an additional onus of 19 work on the party applying for the injunction? 20 A: Yes. 21 Q: And an additional set of tasks of 22 factual completeness in the affidavit; is that fair? 23 A: Yes. 24 Q: And in this case, in a practical 25 sense, when the application for an injunction switched
2681 from a motion on notice to an ex parte injunction around 2 the middle of September 6th, that formally put in place a 3 new higher onus of disclosure for full and frank 4 disclosure; is that fair? 5 A: Yes. 6 Q: Which put an additional burden on the 7 lawyers; is that fair? 8 A: Yes. 9 Q: And they were now formally required 10 to include more information than they had expected; is 11 that correct? 12 MS. KIM TWOHIG: I object to this 13 question, Mr. Commissioner. We don't know what material 14 they had originally intended to file with the court. So 15 to suggest that they now had to put in more is not a fair 16 question when Ms. Jai was not involved in that process. 17 COMMISSIONER SIDNEY LINDEN: Yes. The 18 question of a higher onus is fine, but beyond that. 19 MR. MURRAY KLIPPENSTEIN: I won't pursue 20 that particular line of questions -- of questioning 21 further. 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: I take it that you yourself were not 25 involved in the preparation of the materials after
2691 September 6th around noon. So the facts of changing to 2 ex parte didn't increase your workload because of more 3 disclosure? 4 A: Right. I was not involved in 5 preparing the injunction materials. 6 Q: I'm -- I'm going to come back to that 7 in a moment in the context of the burial grounds but -- 8 alleged burial grounds. A few other questions. 9 There's some evidence, I anticipate, and 10 I've included for reference, some of the documentation at 11 Tab 4 of the large binder which I don't need to get into 12 unless required, that there was probably a discussion 13 related to the Ipperwash situation between Ms. Hutton and 14 the Premier on the evening of September 4th. 15 And discussion that touched on Ipperwash 16 between the Premier's senior staff and the Premier on the 17 morning of September 5th. Did you have any knowledge on 18 September 5th as to whether or not Ms. Hutton had 19 discussed the Ipperwash issue with the Premier before she 20 came into the meeting? 21 A: Just the way that she described 22 things, like, the Premier wants this or whatever. I 23 mean it suggested that she had spoken to the Premier. I 24 didn't -- I had no way of knowing definitively one way or 25 another.
2701 Q: This is another unrelated question. 2 Just a couple of matters to -- to ask about, odds and 3 ends as it were. A number of the meeting notes and if -- 4 as an example, I'd ask you to turn to the small binder of 5 meeting notes at Tab 4 for September 5th. 6 A: Yes. 7 Q: Do you have that? 8 A: Yes, I do. 9 Q: Those appear to be the meeting notes 10 of Anna Prodanou. 11 A: Yes. 12 Q: And near the bottom there's a hyphen 13 point that starts with, "Stoney Point Number 43." 14 Do you see that? 15 A: Yes. 16 Q: And that appears to say: 17 "Stoney Point Number 43 is the number 18 assigned land that is being reclaimed, 19 but there is no number 43 [or something 20 like that]." 21 A: Yes. 22 Q: And as I understand it there was 23 evidence provided or information provided to the meeting 24 that the number 43 had been written or painted or 25 something on a chalkboard or --
2711 A: Hmm hmm. 2 Q: -- wall in Ipperwash Park after the 3 occupation commenced. Does that sound familiar to you? 4 A: Yes. 5 Q: And can you tell me that -- tell me 6 if it's your understanding that Indian reserves generally 7 in Canada receive numbers, right? 8 A: Yes. 9 Q: And those numbers are assigned to 10 reserves as they are created by treaty or otherwise; is 11 that right? 12 A: Yes. 13 Q: And they're essentially an 14 administrative convenience for the Federal Government; is 15 that fair? 16 A: I guess. I mean that makes sense. I 17 don't know. 18 Q: But is it fair to say that it would 19 appear, based on this report, that somebody in -- at the 20 Park was using a reserve number for the Park lands? 21 A: Yes. 22 Q: And is it a fair inference from that 23 that they understood that those lands had formerly been 24 reserve lands under the treaty? 25 COMMISSIONER SIDNEY LINDEN: Again,
2721 you're asking her to put herself into somebody else's 2 head -- 3 MR. MURRAY KLIPPENSTEIN: I -- 4 COMMISSIONER SIDNEY LINDEN: I think. 5 MR. MURRAY KLIPPENSTEIN: I -- I -- 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 how you asked the question. 8 MR. MURRAY KLIPPENSTEIN: Let me rephrase 9 that. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: Was there any discussion of why 13 number 43 had been written in the Park and what 14 significance that was? 15 A: Well, at one (1) point in one (1) of 16 the meetings and I can't remember which day it was -- 17 yeah, no, actually it was. I'm now looking at my notes 18 of September 5th. There was a reference to Indian 19 Reserve 43 and what I have written in my note is that 20 that's the former number of the reserve. 21 Q: I see. So your understanding at that 22 point was, if I can take it from that, that the occupiers 23 believed that those lands were former reserve lands? 24 A: Yes. 25 COMMISSIONER SIDNEY LINDEN: Yes, Ms.
2731 Twohig...? 2 MS. KIM TWOHIG: Unfortunately the -- the 3 Witness ventured an answer, but I'm not sure if she can 4 really testify about what the occupiers understood or 5 what had motivated them to write a number on -- on a 6 blackboard. 7 COMMISSIONER SIDNEY LINDEN: Somebody's 8 indicated that -- 9 MR. MURRAY KLIPPENSTEIN: I'll move on. 10 COMMISSIONER SIDNEY LINDEN: -- it was 11 reserve number 43. 12 13 (BRIEF PAUSE) 14 15 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 16 Q: Now, I've included some materials in 17 the large binder on the topic of the burial grounds that 18 were alleged to be -- 19 A: Sorry, I just knocked over one (1) of 20 these speakers. Sorry. 21 22 (BRIEF PAUSE) 23 24 Q: And if you could turn to Tab 5 -- 25 A: Yes.
2741 Q: -- of the binder I've provided. It's 2 Tab 5 and it's already Exhibit P-553 from the examination 3 or cross-examination of Mr. Fox. 4 You see this is a court decision called 5 Roxanne Griffin and Jack Klassen? 6 A: Yes. 7 Q: Do -- do you see that? Now, I can 8 take you to some of this, but I'll try and keep this 9 short unless we need to get into it. 10 This appears to be a Ontario Superior 11 Court decision from 1991 which summarizes some common-law 12 principles related to human burial grounds. Is that fair 13 or should I go through some of this? 14 A: I have not read this decision. 15 OBJ MS. KIM TWOHIG: I object to any 16 questions relating to cases, treaties, legislation or 17 texts. 18 COMMISSIONER SIDNEY LINDEN: I think you 19 can ask the question without referring to the decision on 20 a judgment. 21 MR. MURRAY KLIPPENSTEIN: Well possibly, 22 and I should say I -- I don't want -- I don't want My 23 Friend's objection to be -- to be left un -- un-responded 24 to. I certainly do not accept the validity of her 25 objection but I don't need to -- to deal with that now.
2751 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: But for purposes of -- of this topic 5 of questioning I may continue with this. But let me ask 6 you generally, you, I believe your evidence was, asked 7 one of the IMC members to do some research on the 8 protection of burial grounds, correct? 9 A: Yes. 10 Q: And your direction was to research 11 the statute law on burial grounds; is that right? 12 A: Just to look, generally, at what our 13 obligations would be with respect to a potential burial 14 ground. 15 Q: Okay. And the information I saw on 16 the notes referred to the Ontario Cemeteries Act, right? 17 A: Right. 18 Q: Do you know whether there was any 19 information that was obtained or sought with respect to 20 potential common law obligations about burial grounds? 21 A: I don't -- I'm not aware that there 22 was. 23 Q: Yes, you're not aware of any research 24 information that came back with respect to common law? 25 A: It wasn't mentioned in Dave Carson's
2761 materials to me. 2 Q: Would you agree with me that as -- as 3 a very simple matter of basic legal structure that the 4 treatment of a topic in a statute doesn't fully exhaust 5 that topic necessarily and there may well be other 6 applicable common law principles as well? 7 OBJ MS. KIM TWOHIG: I object. That's a 8 question regarding legal opinion. 9 MR. MURRAY KLIPPENSTEIN: Well, it's 10 about as basic a legal question as one could have I think 11 and it doesn't involve a legal opinion. And in my 12 respectful submission it's a basic legal point that is a 13 part of the framework of the structure. And my -- 14 COMMISSIONER SIDNEY LINDEN: What was the 15 question again? 16 MR. MURRAY KLIPPENSTEIN: Would you agree 17 that the statutory provisions on a topic do not 18 necessarily exhaust the sources of law on that topic and 19 it's quite possible for there to be other common law 20 legal principles and precedents that would apply to the 21 same topic in addition to the statute; is that fair? 22 COMMISSIONER SIDNEY LINDEN: It's a 23 pretty elementary statement at this stage. Would you 24 object to that, Ms. Twohig, that statute law -- 25 MS. KIM TWOHIG: Well I object to the
2771 line of questioning. If that's the only question it's -- 2 it's self evident to most lawyers in the room and I'm not 3 sure that this Witness is better positioned to answer it 4 than you are to -- 5 COMMISSIONER SIDNEY LINDEN: Anybody 6 else. 7 MS. KIM TWOHIG: -- determine it. But if 8 it's leading to other questions along those lines, I do 9 object. 10 COMMISSIONER SIDNEY LINDEN: The 11 statement that you made so far is essentially self 12 evident to every lawyer in this room, I assume. 13 MR. MURRAY KLIPPENSTEIN: Thank you. 14 15 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 16 Q: And to the best of your knowledge, 17 although the claim that there were Native burial grounds 18 in Ipperwash Park was clearly put before the IMC meeting, 19 there was no attempt to research possible common law 20 principles related to burial grounds; is that fair? 21 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 22 Twohig...? 23 MS. KIM TWOHIG: Yes I'm wondering if My 24 Friend might rephrase that appropriately. He said that 25 the issue of burial grounds was clearly -- or the claim
2781 with respect to burial grounds was clearly put before the 2 IMC. 3 And as I understand the evidence, it was 4 that someone said that an occupier had mentioned this but 5 there was no clear evidence or a clear claim. 6 COMMISSIONER SIDNEY LINDEN: There's a 7 reference to burial grounds. I think that was the 8 evidence. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: Well that's -- it's a very important 12 point and so I -- I would like to just review some of the 13 evidence. If you could retrieve the binder related to 14 meeting minutes and... 15 16 17 (BRIEF PAUSE) 18 19 Q: Turn to Tab 4 please. 20 COMMISSIONER SIDNEY LINDEN: September 21 5th? September 5th, Tab 4? 22 MR. MURRAY KLIPPENSTEIN: Yes, I'm sorry. 23 It's September 5th. 24 25 COMMISSIONER SIDNEY LINDEN: Yes.
2791 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: On page 1 for September 5th, about 3 two-thirds of the way down, you see in quotes: 4 "The Parks ours now." 5 Do you see that? This is Tab 4, being 6 the -- 7 A: Oh, I'm sorry. 8 Q: -- notes of Anna Prodanou. 9 A: Okay, yes. 10 Q: "The Park's ours now, they'll be 11 paying us now, the rationale being the 12 burial site." 13 Do you see that? 14 A: Yes. What's -- yeah, this is some 15 reference to something that -- some information we 16 received from MNR of what they had overheard and I think 17 that what they had overheard were the things that are in 18 quotations now, something to the effect of, you know, the 19 Park's ours now. The -- that you'll be paying us now. 20 Q: And the ration -- 21 A: And then the -- that -- the rationale 22 being the burial site was not part of what was the 23 comment, the alleged comment that was reported by an MNR 24 employee that they had heard. 25 Q: All right.
2801 (BRIEF PAUSE) 2 3 A: But I agree that we had heard that 4 there was an allegation that there was a burial ground. 5 Q: And that allegation that there was a 6 burial ground was mentioned at the beginning of the 7 September 5th meeting; is that fair? 8 A: It was mentioned sometime in the 9 September 5th meeting, yes. 10 Q: Right. And then when we go to 11 September 6th, for example, the notes of Eileen Hipfner 12 at Tab 8. 13 A: Yeah. Well, just in my own notes on 14 the September 6th meeting, Ron Fox reporting at the 15 beginning does have report and I have this in quotes: 16 "Park is their land and there is a 17 burial site there." 18 That's on September 6th. 19 Q: So those are your notes? 20 A: Yeah. 21 Q: That's from the report of Ron Fox? 22 A: Right. 23 Q: And it makes the two (2) distinct but 24 related points? 25 A: Right.
2811 Q: It's burial ground and it's our land. 2 A: Yes. 3 Q: And if I just look at Eileen Hipfner 4 notes at Tab 8. 5 A: Hmm hmm. 6 Q: On the first page, this is Tab 8, the 7 September 6th notes, there's a heading, "Update," do you 8 see that? 9 A: Yes. 10 Q: And then a sub heading, "OPP Ron 11 Fox;" do you see that? 12 A: Yes. 13 Q: And then details of what appears to 14 be an update by Ron Fox; is that right? 15 A: Hmm hmm. 16 Q: And then there's the -- the fourth 17 bullet point says: 18 "Have made no demands," 19 Right? 20 A: Right. 21 Q: The next bullet point says: 22 "Asserted it's their land," correct? 23 A: Yes. 24 Q: And then the next bullet point says: 25 "Have raised issue of burial grounds."
2821 Is that -- 2 A: Yes. 3 Q: -- fair? And if you turn to the next 4 tab, Tab 9, Elizabeth Christie. The -- at the top of the 5 first page we see something very similar. There's a 6 bullet point that says: 7 "They have made no demands, have said 8 that the Park is their land and that 9 the land is a burial site." 10 A: Right. 11 Q: And I could go on, frankly, but would 12 you agree with me it's -- it's very clear that on the 13 morning of September -- on the meeting of September 6th, 14 near the beginning, a report was made, probably from Ron 15 Fox, that specifically that said that they're -- the 16 occupiers are saying the Park is their land and that the 17 land is a burial site; is that fair? 18 A: Yes, well, that we've heard that 19 indirectly, yes. 20 Q: Yes. So when -- when we've -- when 21 we hear, as we've heard many times that there was no 22 formal land claim, the Committee clearly had information 23 from Mr. Fox, it would appear, that the occupiers were 24 saying two (2) things; it's our land and there's a burial 25 ground in there.
2831 Is that fair? 2 A: We've heard that they were saying 3 that. We don't -- we don't know the basis for them 4 saying that and -- 5 Q: Right. 6 A: -- this was all just things that were 7 heard sort of third or fourth hand. 8 Q: Okay. But I'd like to draw a 9 distinction between two (2) -- three (3) things. One is 10 the -- the claim being asserted -- 11 A: Hmm hmm. 12 Q: Secondly, the evidence for the claim 13 and third, the claim being made formally, okay? 14 A: Hmm hmm. 15 Q: Now we've heard that the claim -- no 16 claim was being made formally, and the word "formally" 17 comes up countless times; is that right? 18 A: Right. 19 Q: And secondly the -- the word or the 20 concept has been made that there would be evidence where 21 the claim wasn't being put forward, is that -- that -- 22 that's been said as well; is that right? 23 A: Yes. 24 Q: But the first point which is that a 25 claim was being asserted in the form of, It's our land
2841 and there's a burial site there, certainly, clearly, was 2 being put forward; is that fair? 3 A: Well, I'd have to say that it wasn't 4 clearly communicated to anyone in government. I mean 5 they may have been overheard saying this, but there was 6 no actual communication with them and they didn't go the 7 meeting that the OPP had set up at noon or, you know, 8 clearly articulate, you know, what their demands were. 9 And, in fact, all of these notes, you 10 know, the very first thing it says, they have made no 11 demands but have said that the Park is their land and 12 that the land is a burial site. So it's not -- if -- if 13 they were -- if this, in fact, was their way of making a 14 claim or asserting an interest in the land it was a 15 rather unclear way of doing it or, you know. 16 Q: And would you accept that there is a 17 distinction between them stating and believing those two 18 (2) positions and they communicating them and asserting 19 them to the Government? 20 A: Those are, of course, two (2) 21 different things, yes. 22 Q: And would you agree that the 23 information that you had was that they were apparently 24 saying it's our land and it's a burial ground? 25 A: Yes. We had heard that they had been
2851 saying that. 2 Q: Okay. Now, I -- I can appreciate 3 that when the instructions were apparently changed for 4 legal staff on September 6th from an injunction on notice 5 to an ex parte injunction thereby -- thereupon apparently 6 kicking in an obligation for full and frank disclosure, 7 that that would have made things difficult for any 8 lawyer. 9 But, would you agree with me that the fact 10 that the occupiers apparently believed that the land was 11 theirs and that there were burial grounds there probably 12 should reasonably have been put -- been put into the 13 Attorney General's or government's written materials 14 before the court, as part of full and frank disclosure? 15 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 16 Twohig...? 17 OBJ MS. KIM TWOHIG: I object to that 18 question. Again, she has -- has had no involvement in 19 preparing the materials and the evidence that was put 20 before the Court is quite clear. It's a matter of record 21 and there was reference to the burial grounds in the 22 evidence. 23 MR. MURRAY KLIPPENSTEIN: I'll -- I'll 24 not pursue that question. It may be a matter for other 25 witnesses or argument.
2861 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: The other item that comes up from 4 time to time is the statement or paraphrase in the 5 meeting notes that burial grounds would not affect title? 6 A: Yes. 7 Q: Do you recall that concept being put 8 forward in the meetings? 9 A: Yes. 10 Q: Did you ever see any legal authority 11 for that proposition? 12 A: No, but I mean we didn't consider -- 13 I mean we didn't see either legal authority either for or 14 against that proposition. 15 Q: Right. And in the context of an ex 16 parte motion in which there's an obligation for full and 17 frank disclosure did anybody do any search for whether 18 there was any legal authority on the question of whether 19 legal -- whether burial grounds did not affect legal 20 title? 21 MS. KIM TWOHIG: I'm not sure this 22 Witness can answer the question of whether anybody did 23 any research or what considerations were taken into 24 account by the lawyers who acted on the injunction. 25
2871 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: Well, can you answer that question 3 from your own knowledge? 4 A: I'm not aware of any research being 5 done on that topic, however, the timeline for preparing 6 the injunction materials was extremely tight. 7 Q: Yes. I can appreciate that. 8 9 (BRIEF PAUSE) 10 11 Q: I think you've testified that you 12 became aware of some of the correspondence in the 1930's 13 pertaining to an alleged burial ground in the Park after 14 the shooting of Dudley George; is that right? 15 A: Yes. 16 Q: Do you have any -- do you know if 17 those documents were found in the Provincial Government 18 files or archives after the shooting of Dudley George? 19 A: I don't know if they were ever found. 20 I think that there was an attempt to find them and that 21 as far as I know, that they were not ever located; that 22 our only source for them was the fact that the Federal 23 Government had found them in their archives. 24 It's possible, since of course I left, 25 that Native Affairs Secretariat in February of 1996,
2881 approximately, that after that they found them but to my 2 knowledge those documents were not located while I was 3 there. 4 Q: And there's evidence and we'll hear 5 evidence that in or about 1950 a skeleton of human 6 remains was uncovered in the Park and that that was, 7 according to expert evidence, a -- in all likelihood, a 8 native person who had been buried there. 9 Did you have any familiarity with that 10 before you left ONAS? 11 A: I don't recall that. 12 13 (BRIEF PAUSE) 14 15 Q: Were -- with respect to the documents 16 from the 1930's that reported an apparent burial ground 17 that were received from the Federal Government, I believe 18 you spoke with some senior Federal officials just after 19 the shooting of Dudley George in relation to those 20 documents, that information; is that fair? 21 A: Well, I believe it was on September 22 12th that the Federal people called me. I mean, they 23 were -- I had been in contact with them on a fairly 24 regular basis in any event, around all of the issues 25 surrounding the -- both, well, the Army Base occupation
2891 and then the Park occupation. 2 Q: And do you -- do you know whether the 3 Federal folks were researching the history of the 4 parklands before the shooting of Dudley George? 5 A: I don't know. 6 Q: They didn't tell you we were 7 researching and we found -- we happened to find this at 8 this point or... 9 A: The impression I got, as far as I can 10 recall, is that they were just going through boxes of 11 documents relating to the history of that area which 12 would include the camp and the Park because they were 13 adjacent to each other, and that was when they found 14 these documents. 15 Q: And would you agree with me that if 16 they had found -- that if the injunction had been delayed 17 several days and that -- and those documents found before 18 the shooting of Dudley George and before the injunction, 19 that those documents would have been included in the 20 Court materials? 21 MS. KIM TWOHIG: I don't know how this 22 Witness can answer that question; it would be pure 23 speculation. 24 COMMISSIONER SIDNEY LINDEN: I think 25 you're right.
2901 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: If you could 4 try to tie these pieces together, Mr. Klippenstein, we'd 5 be -- 6 MR. MURRAY KLIPPENSTEIN: I think those 7 are all my -- my questions, Commissioner, and so -- so 8 thank you, and thank you very much, Ms. Jai. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much. Thank you very much and it is 4:30 and we've 11 had a long day. 12 THE WITNESS: Thank you. 13 MR. DERRY MILLAR: I wonder if we might 14 just try to see where we're at so that -- 15 COMMISSIONER SIDNEY LINDEN: You're 16 thinking about scheduling for -- 17 MR. DERRY MILLAR: About scheduling, yes. 18 COMMISSIONER SIDNEY LINDEN: The next 19 person up is Mr. Rosenthal, and I'm not sure if you can 20 make an estimate now of what you might -- 21 MR. PETER ROSENTHAL: I had made an 22 estimate of three (3) hours and I still think that's good 23 estimate. 24 COMMISSIONER SIDNEY LINDEN: Still 25 accurate?
2911 MR. PETER ROSENTHAL: I think so. 2 COMMISSIONER SIDNEY LINDEN: And then Mr. 3 Scullion...? 4 MR. KEVIN SCULLION: I estimated an hour 5 or less. 6 COMMISSIONER SIDNEY LINDEN: And Mr. 7 George...? 8 MR. JONATHON GEORGE: I estimated an hour 9 and I believe that's still accurate. 10 COMMISSIONER SIDNEY LINDEN: And, yes, 11 Mr. Horner? 12 MR. MATTHEW HORNER: Mr. Horton had 13 estimated two (2) to three (3) hours and I haven't had a 14 chance to speak to him. I'll inform Counsel as soon as 15 we get out. I'll talk to him and see if he has any -- 16 COMMISSIONER SIDNEY LINDEN: Okay. And - 17 - yes, Mr. Roy? 18 MR. JULIAN ROY: I had estimated a day to 19 a day and a half and I think -- I think that was an over 20 estimate, that's the good news. 21 I suspect I'll be between three (3) to 22 five (5) hours; that's my best estimate right now. 23 24 (BRIEF PAUSE) 25
2921 MR. DERRY MILLAR: That means, hopefully, 2 that Ms. Jai will be done by noon on Thursday, so 3 hopefully we'll meet that and we'll have Ms. Hipfner here 4 for Thursday afternoon. 5 COMMISSIONER SIDNEY LINDEN: Who could 6 start, if necessary, on Thursday around noon if -- 7 MR. DERRY MILLAR: Yes. We're going to 8 plan for -- we will plan for that. 9 COMMISSIONER SIDNEY LINDEN: That's fine. 10 Thank you very much, Ms. Jai. We'll now adjourn until 11 tomorrow morning. 12 13 (WITNESS RETIRES) 14 15 THE REGISTRAR: This Public Inquiry is 16 adjourned until tomorrow, Wednesday September 14th at 17 9:00 a.m. 18 19 --- Upon adjourning at 4:35 p.m. 20 21 Certified Correct 22 23 ________________________ 24 Dustin Warnock 25