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 15th, 2005 25
21 Appearances 2 Derry Millar ) (np) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) 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 Cross-Examination by Ms. Kim Twohig 8 7 Re-Direct Examination by Ms. Susan Vella 18 8 9 EILEEN LOUISE HIPFNER, Sworn 10 Examination-In-Chief by Ms. Katherine Hensel 27 11 Cross-Examination by Ms. Jennifer McAleer 203 12 Cross-Examination by Ms. Jacqueline Horvat 274 13 Cross-Examination by Mr. Douglas Sulman 281 14 15 16 17 Certificate of Transcript 285 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-711 Document Number 3000064. Ipperwash 4 crisis management interim evaluation 5 report Tuesday, Sept 26/'95. 21 6 P-712 Document Number 3001716. Interministerial 7 officials committee on Aboriginal 8 emergencies re: Dunnville Dam & Weir Site 9 re. Camp Ipperwash and Ipperwash provincial 10 park; ONAS information note May 20/'93; 11 Hand drawn map of lands to be returned 12 under terms of P.C. 1981-499. 36 13 P-713(RESERVED) 44 14 P-714(RESERVED) 44 15 P-715 Document Number 1006001. Fax message 16 from Sandy Hunter to members of Ipperwash 17 working group committee attaching letter 18 from A. Kim Campbell, Minister of National 19 Defence and Minister of Veterans Affairs, 20 Sent to ONAS June 07/'93, re. Starting 21 negotiations about the Kettle and Stony 22 point band members reversionary interest 23 in Camp Ipperwash. 716 24 25
71 EXHIBIT LIST (cont'd) 2 Exhibit No. Description Page No. 3 P-716: Document Number 1011849 Eileen 4 Hipfner's Handwritten notes re. 5 IMC meeting, Sept 07/'95. 150 6 P-717 Document Number 1011843. Eileen 7 Hipfner's Handwritten notes, 8 Sept 07/'95. 167 9 P-718 Document Number 1003524. Work groups 10 - With Handwritten notations(updated). 167 11 P-719 Document Number 1003369. E-mail from 12 E. Hipfner to J. Jai with handwritten 13 notes and voicemail update by J. Jai 14 to ministerial contacts 175 15 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 9:04 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MS. KIM TWOHIG: Good morning, Mr. 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning, Ms. Twohig. 12 MS. KIM TWOHIG: Good morning, Ms. Jai. 13 THE WITNESS: Good morning. 14 15 JULIE RAMONA JAI, Resumed; 16 17 CROSS-EXAMINATION BY MS. KIM TWOHIG: 18 Q: I just have a few questions by way of 19 clarification. You testified that your notes reflect 20 your full recollection of what transpired at the 21 Interministerial Committee meetings as I recall. 22 And you've told the Commission though 23 about certain things that were said at the meetings that 24 are not reflected in your notes. And in particular that 25 Deb Hutton had said that, at one or both of the meetings,
91 that the occupiers should be treated like everyone else. 2 Were you mistaken in saying that you had 3 no recollection independent of your notes? 4 A: I was mistaken in saying that I had 5 no recollection independent of my notes. Once I was in - 6 - in the situation again, reading my notes and almost 7 reliving it, it did revive some memories. 8 So, I -- the comments that I made with 9 respect to, you know, anything beyond my notes including 10 that comment from Deb Hutton, I do remember that even 11 though it was not in my notes. 12 Q: Okay. There's a document at Tab 29, 13 it's Exhibit P-653, that you were referred to yesterday 14 and that was the e-mail to Yan Lazor following your 15 meeting of September 6th. 16 A: Yes. 17 Q: I'll just give you a minute. In the 18 bracketed paragraph under Main Communications Messages -- 19 A: Yes. 20 Q: -- the last sentence says: 21 "The OPP will be advised as to their 22 legal options and effect a mischief 23 charge under the Criminal Code and then 24 it is up to them as to how to proceed." 25 I'm wondering if there was any agreement
101 at the meeting as to whether anyone was to provide that 2 advice to the OPP? 3 A: I can't recall. I -- the only person 4 I know for sure who would have communicated with the OPP 5 would be Ron Fox. So, there was no one else who I can 6 specifically think of who we had, for example, agreed 7 would talk to the OPP about that. 8 Q: Was any direction given at the 9 meeting by you or anyone else that he should provide that 10 advice or was it a thought that, you know, he may do it 11 if he wishes? 12 A: I think it was left unspoken. In 13 other words, there was no specific direction that he 14 should do that. 15 Q: Okay. Now, you testified in cross- 16 examination by Mr. Rosenthal that you assumed that the 17 request of the OPP to remove the occupiers would be 18 honoured. 19 Do you remember saying that? 20 A: That the request? Oh, I see. 21 Q: That, you know, that if the OPP were 22 requested to remove the occupiers, that that request 23 would be honoured. And I'm wondering what your 24 expectation was, if any, as to what the OPP would do to 25 honour that request.
111 A: Oh, I see. I think that -- that what 2 my understanding was that the OPP would make efforts to 3 peacefully remove the occupiers. So, that they would ask 4 them to leave or take whatever legal -- other legal 5 mechanisms are available. So, for example, if there were 6 Criminal Code charges that they felt were appropriate, 7 then they would apply those charges. 8 Q: Right. On September 5th, 1995 I 9 understand that you gave advice to the Attorney General 10 to seek an injunction as a means of removing the 11 occupiers from the Park. 12 A: That was actually the morning of 13 September the 6th. 14 Q: Okay. Later on September 12th, you 15 received correspondence from the Government of Canada 16 pertaining to an alleged burial ground in the area known 17 as the Park. And that is Exhibit P-674. 18 A: Right. 19 Q: You don't need to go there but you 20 recall the document? 21 A: Yes. 22 Q: I'm wondering whether your -- you 23 think your advice regarding the injunction would have 24 been different had you been aware of the 1937 25 correspondence on September 6th?
121 A: No. I don't think our advice would 2 have been different. We would still have recommended 3 that a normal injunction be sought. We would have 4 perhaps have included more information because we would 5 have had that information including, like, the 6 correspondence from 1937. 7 But I don't think it would have affected 8 out view that an injunction was an appropriate legal 9 mechanism to apply for. 10 Q: You were asked questions about the 11 affect of having a minister with dual portfolios for 12 Native Affairs and Natural Resources and the possible 13 competing interests. And you said at one point and I'm 14 quoting from page 335 of the transcript: 15 "It was well known that there were 16 potentially conflicting interests 17 between the Natural Resources portfolio 18 and the Native Affairs portfolio and 19 that one (1) of the objectives of the 20 previous government in having those -- 21 both portfolios in one (1) minister was 22 to try to reconcile those conflicting 23 or competing interests." 24 Now, do you agree that if there were 25 separate ministers, the competing interest would have to
131 be balanced at Cabinet -- 2 A: Yes. 3 Q: -- rather than the minister with the 4 dual portfolios? 5 A: Yes. 6 Q: And as a person who is interested in 7 efficiency as you said yesterday would you agree that it 8 may be more efficient to have one (1) minister cognizant 9 of his or her responsibilities under each portfolio -- 10 COMMISSIONER SIDNEY LINDEN: Just a 11 minute, Ms. Twohig. 12 MS. KIM TWOHIG: -- to balance the 13 conflicting interests? 14 COMMISSIONER SIDNEY LINDEN: Excuse me, 15 Ms. Twohig, there's an objection. 16 MR. JULIAN ROY: This is exactly the area 17 that -- that My Friend objected to yesterday -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. JULIAN ROY: -- when I attempted to 20 canvass it. 21 COMMISSIONER SIDNEY LINDEN: I think 22 you're -- 23 MR. JULIAN ROY: So, I'm surprised that 24 she's entering this line of inquiry, with respect. 25 COMMISSIONER SIDNEY LINDEN: I think
141 you're right, Mr. Roy. I don't think we wanted to get 2 into the more general or philosophical or legal analysis. 3 We were asking her what her impressions were on the 4 ground. 5 MS. KIM TWOHIG: Yes. 6 COMMISSIONER SIDNEY LINDEN: So, I think 7 you should be -- 8 MS. KIM TWOHIG: Well, I will -- I will 9 try to do that then. Okay. 10 11 CONTINUED BY MS. KIM TWOHIG: 12 Q: Based on your experience at ONAS and 13 elsewhere, since then, would you agree that Aboriginal 14 issues tend to span a variety of different areas? 15 A: Yes. 16 Q: And based on your experience would 17 you agree that an awareness of issues in a variety of 18 different areas can assist a deputy in providing advice 19 to the Minister? 20 A: Yes. 21 Q: And I don't know if you have 22 experience in this or if you've had any opportunity to 23 consider it as part of your practice, but would you think 24 that there's a possibility that a deputy responsible only 25 for Native Affairs could become isolated and perceived as
151 lacking the broader perspective that may be helpful to a 2 minister? 3 COMMISSIONER SIDNEY LINDEN: I think this 4 is just another way of -- 5 MS. KIM TWOHIG: Okay. 6 COMMISSIONER SIDNEY LINDEN: -- asking 7 the same question, Ms. Twohig, with all due respect. 8 MS. KIM TWOHIG: Okay. 9 10 CONTINUED BY MS. KIM TWOHIG: 11 Q: Now, you said that when the Minister 12 of Natural Resources had the dual portfolio of Minister 13 responsible for Native Affairs and there was a separate 14 deputy minister for Native Affairs, your experience was 15 that you had good access to the Deputy and he had good 16 access to the Minister. 17 Have you been in other situations where 18 you have had good access to a single deputy minister? 19 A: Who had responsibility -- 20 Q: Responsibility. 21 A: -- for two (2) portfolios? 22 Q: Yes, yes. 23 A: Well, the -- in -- I had both 24 situations while I was the Legal Director at ONAS because 25 initially we did have a separate deputy minister; that
161 was Grant Wedge. And then after the -- after ONAS was 2 made part of the Ministry of the Attorney General we all 3 reported to Larry Taman who was Deputy Attorney General 4 but also Deputy Minister responsible for ONAS. 5 So, I have had that experience. 6 Q: Yes. And -- and did you have good 7 access to Mr. Taman when he was the Deputy Minister? 8 A: I would say that I had less access to 9 him because he had a far greater range of 10 responsibilities since he was also Deputy Attorney 11 General. So, just -- he would not have had the same 12 amount of time to focus on native issues that a dedicated 13 deputy had. 14 Q: Okay. Now, in terms of the Deputy 15 having access to the Minister, did you have any 16 experience as to whether one (1) or two (2) deputies 17 would have better access to the minister? 18 A: I -- I don't really feel I can 19 comment on that. 20 COMMISSIONER SIDNEY LINDEN: I was going 21 to say I'm not sure how she could comment on that. 22 MS. KIM TWOHIG: Well, she had worked 23 under both regimes, but -- 24 COMMISSIONER SIDNEY LINDEN: Well, 25 possibly she could.
171 MS. KIM TWOHIG: Yeah. 2 3 CONTINUED BY MS. KIM TWOHIG: 4 Q: And you mentioned that a deputy 5 responsible for Native Affairs could clearly present the 6 perspective of ONAS to the Minister. 7 And I take it when you had a single 8 deputy, that deputy could also or did also clearly convey 9 the perspective of ONAS to the Minister; is that right? 10 COMMISSIONER SIDNEY LINDEN: I'm sorry, 11 the Witness is hesitating. The question again is -- 12 MS. KIM TWOHIG: Okay -- 13 COMMISSIONER SIDNEY LINDEN: You're 14 asking about the access that the Deputy has to the 15 Minister. 16 MS. KIM TWOHIG: Well, yes, but she had 17 said also that a single -- that when there were two (2) 18 deputies, the deputy responsible for Native Affairs could 19 clearly present to the Minister the perspective of the 20 Native Affairs portfolio. 21 COMMISSIONER SIDNEY LINDEN: Because he 22 would have no other matters to deal with. 23 MS. KIM TWOHIG: Yes, but -- 24 COMMISSIONER SIDNEY LINDEN: Except 25 native matters.
181 MS. KIM TWOHIG: Except, my question is 2 directed to the -- to giving a clear perspective to the 3 Minister. And the question is when there was only one 4 (1) deputy, was that deputy able also to give a clear 5 perspective of ONAS to the deputy. 6 COMMISSIONER SIDNEY LINDEN: I think 7 that's the question -- 8 MS. KIM TWOHIG: To the Minister. 9 COMMISSIONER SIDNEY LINDEN: -- that's 10 objectionable. I'm not sure -- 11 MS. KIM TWOHIG: Okay. 12 COMMISSIONER SIDNEY LINDEN: -- that she 13 can answer that question. 14 MS. KIM TWOHIG: Okay, thank you. I have 15 no other questions then. Thank you. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much. 18 Do you have any re-examination on behalf 19 of the Commission Counsel? 20 21 RE-DIRECT EXAMINATION BY MS. SUSAN VELLA: 22 Q: Good morning, Ms. Jai. My name is 23 Susan Vella; I'm one of the Commission Counsel. And just 24 very, very briefly, I wonder if you would kindly go to 25 Volume II of the Commission brief to Tab 117.
191 For the record, it's Exhibit P-702, 2 Inquiry Document Number 1012092. And this is the ONAS 3 briefing note for Larry Taman dated October 24, 1995. 4 A: Yes, I have that in front of me. 5 Thanks. 6 Q: Thank you very much then. If -- in 7 cross-examination yesterday you were referred to this 8 document and in particular under discussion, it reads: 9 "Based on these criteria as well as the 10 Solicitor General's Ipperwash crisis 11 management interim evaluation report, 12 it is clear that there is room for 13 improvement." 14 Now, Ms. Jai, did you indicate that you 15 had reviewed that interim evaluation report? 16 A: Yes. 17 Q: And I wonder -- we'll just present to 18 you a document... 19 20 (BRIEF PAUSE) 21 22 Q: And we did, Commissioner, give notice 23 of this document last night. It's Inquiry Document 24 300064 and it's entitled, Ipperwash Crisis Management 25 Interim Evaluation Report, dated September 26th, 1995.
201 Ms. Jai, would you kindly review that 2 document briefly and advise whether or not you're 3 familiar with it? 4 A: Well, I haven't seen it in ten (10) 5 years, but it does look vaguely familiar. 6 Q: Are you able to advise whether or not 7 this is the document which is referred in the briefing 8 note for Larry Taman? 9 10 (BRIEF PAUSE) 11 12 Q: And I do apologize for the late 13 notice to you, Ms. Jai. This is something that we 14 searched for last night. 15 16 (BRIEF PAUSE) 17 18 A: I believe it is. It's possible, 19 because things go through different drafts, if you know 20 what I mean. I can't say that this was for sure the 21 final draft, but this looks -- this looks like the 22 document, yes. 23 Q: It's either a draft or the final 24 document -- 25 A: Yes.
211 Q: -- referred to in this briefing note? 2 A: Yes. 3 Q: On that basis, I wonder if we might 4 make this the next exhibit, please? 5 THE REGISTRAR: P-711, Your Honour. 6 COMMISSIONER SIDNEY LINDEN: P-711. 7 8 --- EXHIBIT NO. P-711: Document Number 3000064. 9 Ipperwash crisis management 10 interim evaluation report 11 Tuesday, Sept 26/'95. 12 13 CONTINUED BY MS. SUSAN VELLA: 14 Q: Thank you. Now staying with Exhibit 15 702, the briefing note for Larry Taman... 16 A: Yes. 17 Q: And on page 2 of that briefing note 18 the 4th point made under: 19 "Issue is need to obtain timely 20 political direction for some actions 21 but need to keep police operational 22 decisions free from political 23 interference." 24 And the suggestion is: 25 "Meetings including by teleconference
221 of lead ministers and staff at critical 2 decision points. Delegation of 3 decision making to one lead minister if 4 appropriate, delegation of decision 5 making to Deputy Ministers if 6 appropriate. Do not involve the police 7 in these meetings." 8 And I want to focus on the last point: 9 "Do not involve police in these 10 meetings." 11 For clarification, Ms. Jai if you can 12 assist us with whether or not this was intended, this 13 suggestion was intended to exclude the special advisor, 14 First Nations, who happen to be a police officer albeit 15 on secondment to the Ministry of the Solicitor General. 16 A: I don't think it was intended to 17 exclude the liaison officer with the OPP who was seconded 18 to the Solicitor General. I do say -- I do have to say 19 that this whole paragraph doesn't make a lot of sense to 20 me now, looking back at it because I mean this is talking 21 about meetings of ministers and meetings of deputy 22 ministers. 23 It's not talking about the staff level, 24 like the Interministerial Committee that I was involved 25 in.
231 Q: Yes. 2 A: So, I mean, it would only be at the 3 staff level meetings I would think that somebody like Ron 4 Fox or the OPP liaison person would come. If -- if this 5 paragraph is, and I'm just reconstructing and looking at 6 it, like I don't recall writing it, so I don't know what 7 was intended but -- 8 Q: But, if you don't know what was 9 intended then perhaps I should leave it at that. Thank 10 you. 11 I wonder then if you would kindly go to 12 Tab 125 in our Commission Brief. This is Exhibit P-703, 13 Inquiry Document 1012134. 14 A: Yes, that's -- 15 Q: And there's a memorandum -- I'm 16 sorry? 17 A: Oh sorry. That's just the proposed 18 procedures for Aboriginal Emergencies. 19 Q: That's correct, dated November 27, 20 1995. And again, I just have a question with respect to 21 clarification. Page 7 of that proposed procedures and 22 it's entitled, the section, Clarify The Role Of The OPP. 23 A: Yes. 24 Q: And the 5th point reads: 25 "The OPP do not participate in
241 committee meetings." 2 And I take it this is with respect to the 3 IMC meetings? 4 A: Yes. 5 Q: Now, my question, again, is, if you 6 know: Did that intend to exclude the special advisor, 7 First Nations, where that position was filled by an OPP 8 officer on secondment? 9 A: I don't believe it was intended to 10 exclude the special advisor for First Nations policing. 11 Q: And similarly page 12 of that 12 document, for clarification purposes is entitled, Timely 13 Political Direction. And the last point reads: 14 "Police not to be involved in these 15 meetings." 16 And I have the same question: Would that 17 -- was that intended to exclude the special advisor First 18 Nations position? 19 A: Well this is -- this actually -- 20 Q: Same point as the other? 21 A: -- it's the same point as the other 22 one. This seems to be referring to meetings of 23 ministers -- 24 Q: Right. 25 A: -- and deputy ministers. So, at that
251 level of meeting, I wouldn't expect somebody at the level 2 of a Ron Fox, you know, special advisor, First Nation 3 policing, to be in attendance at those meetings. 4 So, this would tend to refer to somebody 5 more like at the commissioner level. 6 Q: All right. Thank you very much. I 7 appreciate that. 8 And that completes my re-examination, Ms. 9 Jai. I want to thank you on behalf of the Commission for 10 spending a great deal of time here providing your 11 testimony. Thank you. 12 COMMISSIONER SIDNEY LINDEN: I want to 13 thank you as well, Ms. Jai, for coming and providing us 14 with your testimony. Thank you very, very much. 15 THE WITNESS: Thank you. 16 17 (WITNESS STANDS DOWN) 18 19 COMMISSIONER SIDNEY LINDEN: And I think 20 you want to take a break now. 21 MS. SUSAN VELLA: I -- before we call the 22 next witness we'd like to have a brief break. Thank you. 23 24 (BRIEF PAUSE) 25
261 THE REGISTRAR: This Inquiry will recess. 2 3 --- Upon recessing at 9:25 a.m. 4 --- Upon resuming at 9:32 a.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed. Please be seated. 8 MS. KATHERINE HENSEL: Good morning, 9 Commissioner. The Commission calls as its next witness 10 Eileen Hipfner. 11 THE REGISTRAR: Good morning, Ms. 12 Hipfner. 13 MS. EILEEN HIPFNER: Good morning. 14 THE REGISTRAR: Do you prefer to swear on 15 the Bible, affirm, or use an alternate oath? 16 MS. EILEEN HIPFNER: I'll swear on the 17 Bible, please. 18 THE REGISTRAR: Very good. The bible's 19 on your right, there. Take it in your right hand, 20 please. And would you state your name in full for the 21 record, please. 22 MS. EILEEN HIPFNER: Eileen Louise 23 Hipfner. 24 THE REGISTRAR: Thank you. 25
271 EILEEN LOUISE HIPFNER, Sworn; 2 3 EXAMINATION-IN-CHIEF BY MS. KATHERINE HENSEL: 4 Q: Good morning, Ms. Hipfner. 5 A: Good morning. 6 Q: We're going to start our discussion 7 this morning with a few -- I'll have a few questions 8 about your -- your professional and your educational 9 background. 10 You -- you received your Bachelor of Laws 11 from the University of Western Ontario in 1983; is that 12 correct? 13 A: Yes, I did. 14 Q: And you completed your articles with 15 the Ministry of the Attorney General in its policy 16 development division in 1983 and 1984? 17 A: That's right. 18 Q: Okay. And you were called to the 19 Ontario Bar in 1985? 20 A: Yes. 21 Q: And since 19 -- 1985 you have worked 22 for the Province of Ontario? 23 A: Yes, continuously. 24 Q: Okay. From 1985 to 1987 you were a 25 labour relations specialist with the Ministry of
281 Government Services? 2 A: I was. 3 Q: And from 1987 to 1990 you were a 4 labour relations specialist with the Management Board of 5 Cabinet? 6 A: Yes. 7 Q: From 1990 to 1994 you were Counsel 8 for the Ministry of the -- Ministry of the Solicitor 9 General? 10 A: Yes, and then the Ministry of the 11 Solicitor General and Correctional Services when the two 12 (2) ministries combined. 13 Q: Okay. And when was that? 14 A: I don't remember. I'm sorry. 15 Q: All right. It was sometime during 16 that time period? 17 A: Yes. 18 Q: And can you describe, in general 19 terms, what your duties were as Counsel to the Ministry 20 of the Solicitor General? 21 A: I provided civil legal advice to the 22 Minister, the Deputy Minister, and various branches 23 within the Ministry about -- about legal matters arising 24 in the program areas of the Ministry. My primary client 25 at that time was the Ontario Provincial Police.
291 Q: Okay. And what kind of advice did 2 you provide to the Ontario Provincial Police? 3 A: A lot of human resources advice 4 because my background was in labour relations, but also a 5 broad range of civil legal matters, never -- never advice 6 about criminal law matters. 7 And -- and I assisted the Special Advisor 8 on First Nations Policing and the First Nations and 9 Contract Policing Branch of the Ontario Provincial Police 10 in their Aboriginal policing negotiations with the First 11 Nations. 12 Q: Okay. And during that time period 13 who -- who fulfilled that role as Special Advisor? 14 A: There were various individuals who 15 occupied that position. The first one that I worked with 16 was Doug Scott, Bill Crate, Bill Currie (phonetic) and 17 then, I can't remember actually whether Bill Fox assumed 18 that position before I left the Ministry or just shortly 19 afterwards. 20 Q: Are you -- are you referring to Ron 21 Fox? 22 A: Ron Fox, I'm sorry. Yes. 23 Q: That's all right. There were several 24 'Bills' before that. 25 All right. And did you provide any advice
301 on operational matters to police? 2 A: Policing operational matters? Never. 3 Q: Were you aware of or were you advised 4 of operational matters? 5 A: No. 6 Q: Okay. Okay. From 1994 to the 7 present you have been Counsel to the Ontario Native 8 Affairs Secretariat? 9 A: Yes, recently renamed the Ontario 10 Secretariat for Aboriginal Affairs. But, I'd be more 11 comfortable for now just referring to it consistently as 12 the Native Affairs Secretariat or ONAS. 13 Q: Okay. Returning to one of your 14 earlier comments about not being advised about police 15 operational matters. 16 Did you have any belief or understanding 17 about why you weren't so advised? 18 A: I understood that I wasn't advised 19 because there is a separation between the administrative 20 arm government and the Ontario Provincial Police, that 21 police operations are a matter within the discretion of 22 police. And so I was not advised about those matters. 23 Q: All right. And how did you come by 24 that belief or knowledge? 25 A: I don't recall actually.
311 Q: Okay. Returning to your role as 2 counsel with ONAS, in general terms, what are your duties 3 there and what have they been since 1994? 4 A: I provide advice concerning a range 5 of Aboriginal legal issues. My primary responsibility is 6 assisting with the negotiation of Aboriginal land claims. 7 But, we also work in the area of Aboriginal policy, 8 economic development, that sort of thing. 9 Q: Okay. 10 A: I guess I would add that because of 11 the broad range of interests -- the broad range of 12 ministries that deal with Aboriginal issues when -- in 13 the course of carrying out their mandate, one of my 14 functions certainly is to -- is to participate in 15 interministry deliberations about Aboriginal issues that 16 affect ministries. 17 Q: Thank you. Turning now to the 18 matters at issue at this Inquiry and the situation at 19 Ipperwash. In 1993 you became aware of events happening 20 in the area of Ipperwash. 21 How did you become aware in 1993? 22 A: In the -- one of my responsibilities 23 was to advise the special advisor on First Nations 24 policing and routinely dealt with him and with First 25 Nations and contract policing branch and other areas of
321 the OPP in addressing issues that arose in Aboriginal 2 communities. 3 I don't remember specifically how I came 4 to learn about the occupation of the Army Camp in 1993. 5 Q: All right. And if I could turn you 6 to Tab of the Book of Documents in front of you, you'll 7 find there an Interministerial Officials Committee on 8 Aboriginal Emergencies; some meeting notes. 9 And the meeting is, Re. Dunnville Dam and 10 weir site at Camp Ipperwash and Ipperwash Provincial 11 Park, dated May 21st, 1993. 12 A: Hmm hmm. 13 Q: For the record that's Inquiry 14 Document Number 3001716. If you could turn to page 8 of 15 that document. 16 First of all I should -- I should ask you, 17 do you recognize that document? 18 A: Yes. Perhaps I should -- I should 19 clarify that -- that I'm dealing of course with an issue 20 here that is twelve (12) years old. I've reviewed this 21 document recently. I guess what I would say about it is 22 that -- is that I don't have an independent recollection, 23 actually, of reading these minutes at the time. 24 Q: Okay. Thank you. That is helpful if 25 you can specify. Okay. If you turn to page 8 of that
331 document. 2 A: And where do I see the page number? 3 Oh, actually I've got it. Thank you. 4 Q: You've got it? 5 A: Hmm hmm. 6 Q: Okay. You are listed there as a 7 participant at that meeting? 8 A: That's right. 9 Q: Do you recall attending that meeting? 10 A: I -- I recall attending one (1) 11 meeting some time in the spring or summer of 1993. 12 Q: And what can you recall about that 13 meeting? 14 A: I recall that the situation at 15 Ipperwash at the -- at the Military Camp was discussed. 16 I recall that Hilarie McMurray was in attendance, that 17 Hilarie McMurray was an aide to the Premier, and I 18 remember taking note of that, actually, when I attended 19 the meeting. 20 Q: All right. And if you can turn to -- 21 and that's the extent of your independent recollection 22 regarding that meeting? 23 A: That's it, yes. 24 Q: Thank you. If you can turn to page 4 25 of the documents?
341 (BRIEF PAUSE) 2 3 Q: We'll see a paragraph towards the 4 bottom of that page, the OPP -- that begins with: 5 "The OPP met with the Military 6 yesterday. It appears that the 7 Military intend to rely upon the OPP to 8 make any decision as to whether or not 9 an attempt should be made to remove the 10 First Nations presence from the site. 11 As a result, work clarification on this 12 matter is required. For example, if 13 the land is under Federal jurisdiction, 14 who has the responsibility/rights 15 regarding evictions? 16 Need clarification regarding the legal 17 basis for any actions that might be 18 taken." 19 Can you recall anyone making those 20 comments at the meeting? 21 A: I don't recall them -- don't recall 22 them making those comments at the meeting, but I don't 23 doubt that they were made. 24 Q: All right. And you'll see that they 25 are under a heading with the -- with the words "Scott" or
351 "Doug Scott". 2 A: OPP, Doug Scott. 3 Q: Right. Which would appear to 4 indicate that he made the -- made the comment? 5 A: Yes. 6 Q: Okay. The next paragraph notes: 7 "Eileen Hipfner noted that from a 8 constitutional/policy view, this matter 9 is not clear. For example, there is a 10 line of cases suggesting that Federal 11 lands are not enclaves immune from 12 provincial application. 13 Therefore the Trespass Property Act or 14 common law may apply. There are no 15 current National Defence Act 16 regulations in place regarding trespass 17 on these types of lands." 18 Can you recall making comments to that 19 effect at the meeting? 20 A: I don't doubt that I made them, but I 21 don't have an independent recollection of them at this 22 time. 23 Q: Okay. And then if you turn to page 6 24 of the same document, it indicates there that you have 25 been assigned, among others, to a working group?
361 A: Yes. 2 Q: Concerning the Ipperwash situation. 3 A: Yes. 4 Q: Okay. Can you recall being assigned 5 to that working -- working group? 6 A: No, I don't. 7 Q: Okay. And to the best of your 8 recollection, did you do anything after this meeting as a 9 result of the meeting? 10 A: I produced a legal opinion concerning 11 the authority of the OPP to enforce trespass laws on 12 Federal lands and specifically on lands administered by 13 the Military. 14 Q: All right. And turning to Tab 5 of 15 the brief in front of you -- actually, I should go back, 16 and if I could enter that last document at Tab as the 17 next exhibit? 18 THE REGISTRAR: P-712, Your Honour. 19 COMMISSIONER SIDNEY LINDEN: Thank you, 20 P-712. 21 22 --- EXHIBIT NO. P-712: Document Number 3001716. 23 Interministerial officials 24 committee on Aboriginal 25 emergencies re: Dunnville Dam
371 & Weir Site re. Camp 2 Ipperwash and Ipperwash 3 provincial park; ONAS 4 information note May 20/'93; 5 Hand drawn map of lands to be 6 returned under terms of P.C. 7 1981-499. 8 9 THE WITNESS: Katherine, Sir, do I need 10 to note that anywhere? 11 MS. KATHERINE HENSEL: No, we'll keep 12 track of the exhibits. 13 THE WITNESS: Thank you. 14 15 CONTINUED BY MS. KATHERINE HENSEL: 16 Q: All right. So, at Tab 5 of the 17 documents in front of you... 18 A: I have it. 19 Q: You have it? 20 A: Yes, I do. 21 Q: All right. For the record, that's 22 Inquiry Document 2001225, and it's a memo dated June 23 11th, 1993. 24 COMMISSIONER SIDNEY LINDEN: It looks 25 like June 2nd to me.
381 MS. KATHERINE HENSEL: Oh, I'm sorry, 2 that's June 2nd. 3 COMMISSIONER SIDNEY LINDEN: It looks 4 like June 2nd. 5 MS. KATHERINE HENSEL: Yeah. 6 7 CONTINUED BY MS. KATHERINE HENSEL: 8 Q: Now, were you asked to prepare this 9 memo as -- at the meeting -- from the meeting notes that 10 we just reviewed, the May 21st? 11 A: I don't remember. 12 Q: Okay. And do you recall what factual 13 information you based your opinion on for that 14 memorandum? 15 A: I knew that a group of members of 16 Kettle and Stony Point First Nation had occupied a 17 portion of the Army Camp situated on lands that had once 18 been part of the reserve; that's all I recall 19 independently at this time. 20 Q: And I should go back a little bit and 21 ask you, first of all, is that -- the document at Tab 5, 22 is that your -- a legal opinion prepared by you? 23 A: That is a legal opinion prepared by 24 me. 25 Q: All right. And just one (1) more
391 question about that -- that particular document. On page 2 1 there's a note to the recipient of the memo, Inspector 3 Doug Scott: 4 "You explained to David and he to me 5 that the Military may want this 6 situation to be ended." 7 A: I'm sorry, I don't see -- is that on 8 the first page -- 9 Q: Hmm hmm. 10 A: -- of the June 2nd memorandum? 11 Q: Yes. 12 A: Yes, I -- I see it now, Katherine, 13 thank you. 14 Q: All right. Can you recall who David 15 -- which David you were referring to? 16 A: "David" would have been David Spring 17 who -- 18 Q: Hmm hmm. 19 A: -- at that time was the Legal 20 Director at the Legal Services Branch, the Ministry of 21 Correctional Services. 22 Q: All right. 23 A: I'm sorry, the Ministry of the 24 Solicitor General. 25 Q: And just in general terms, I'm not
401 asking you to go into any detail, can you describe the 2 nature of the -- 3 A: I'm sorry, I need to make a 4 correction. 5 Q: Sure. 6 A: I see that -- that the two (2) 7 ministries had already combined at that time and if 8 that's the case Denise Bellamy had become the Legal 9 Director of the Legal Branch and David Spring was senior 10 counsel. 11 Q: Okay. Thank you. So, just in 12 general terms, I'm not asking you to go into any detail 13 about the -- the nature of the opinion you provided or 14 the advice you provided, but in general what was the 15 nature of your -- of your advice to Inspector Scott? 16 A: Can I just take a quick look at the 17 memorandum? 18 Q: Sure. Sure. 19 20 (BRIEF PAUSE) 21 22 A: Generally, the nature of my advice is 23 summarized at the bottom of the first page and the top of 24 the second page where I outline three (3) options that -- 25 three (3) approaches that could most likely be employed
411 to remove trespassers from the property of the Canadian 2 Forces Base. And I've set out three (3) options. 3 Q: Okay. And those options would be the 4 Military could seek an injunction enjoining the 5 trespassers from continuing their activity? 6 A: Yes. 7 Q: That was number 1 paragraph number 1. 8 Paragraph number 2 are the provisions of 9 the Criminal Code dealing with preventing and arresting 10 for breach of peace, Sections 30 and 31 or forcible entry 11 and detainer. Section 72 and 73 might be relied upon to 12 eject the trespassers and to lay charges against them. 13 And paragraph 3 is the -- the Trespass to 14 Property Act which is provincial legislation: 15 "Could be employed to arrest the 16 trespassers without a warrant, to 17 remove them from the property and 18 perhaps to lay charges against them." 19 A: Yes, that was my advice as of June 20 2nd, 1993. 21 Q: All right. And did that advice 22 change? 23 A: Yes, it did. 24 Q: All right. And how did it change? 25 A: I located a fairly obscure regulation
421 under the National Defence Act that had never been 2 published in the Canada Gazette and that changed the 3 third option. 4 Q: All right. And if I could take you 5 to Tab 8 of the documents in front of you you'll see 6 there a -- a memorandum dated June -- June 11th, 1993. 7 For the record that's Inquiry Document Number 3001716. 8 COMMISSIONER SIDNEY LINDEN: The document 9 number looks like 2001239. Am I reading it wrong? 10 MS. KATHERINE HENSEL: No, you're 11 correct. I am in error. Thank you, Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: 2001239. 13 THE WITNESS: Katherine? 14 MS. KATHERINE HENSEL: Yes. 15 THE WITNESS: Excuse me, can I make one 16 (1) point before we carry on? 17 MS. KATHERINE HENSEL: Sure. 18 THE WITNESS: That is, of course, that 19 both of these documents are legal opinions that would 20 ordinarily be subject to solicitor/client privilege. And 21 I understand that that privilege has been waived for the 22 purpose of -- of this Inquiry and that that's why I'm 23 speaking to these issues. 24 MS. KATHERINE HENSEL: All right. 25 THE WITNESS: Thank you.
431 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 2 Twohig? 3 MS. KIM TWOHIG: This is a rather 4 difficult situation, in that looking at the documents now 5 for the first time, I was having difficulty finding them, 6 I don't believe the privilege was waived here because 7 these documents were provided by the OPP I understand, 8 but the advice was actually given to staff within the 9 Ministry. 10 MS. KATHERINE HENSEL: All right. 11 Perhaps we could just -- a moment's brief indulgence, Mr. 12 Commissioner? 13 COMMISSIONER SIDNEY LINDEN: Yes, let's 14 take a minute here. 15 16 (BRIEF PAUSE) 17 18 COMMISSIONER SIDNEY LINDEN: Should we 19 take a short break. 20 I don't want to rush your decision. You 21 know, you shouldn't be doing this standing on one leg. 22 We should take a short break. 23 24 (BRIEF PAUSE) 25
441 MS. KATHERINE HENSEL: Just for 2 efficiency's sake, I believe -- I'm going to move on to a 3 different area. I may have a few more questions based on 4 this -- on this legal opinion after the next break so 5 that we can take some time at that point. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 8 CONTINUED BY MS. KATHERINE HENSEL: 9 Q: All right. And beyond providing the 10 -- the opinion that we've referred to, did you provide 11 any other legal services or professional services in 12 relation to the situation at camp Ipperwash at the time 13 that you can recall? 14 A: I don't recall. 15 Q: Okay. And just one more question 16 about that period. If you could turn to Tab 7. And I 17 should note for the record that once we resolved our 18 issues concerning the last two (2) documents I've 19 referred to, they may be entered as exhibits, if we could 20 reserve two (2) exhibit numbers? 21 THE REGISTRAR: P-713 and P-714. 22 23 --- EXHIBIT NO. P-713(RESERVED): 24 --- EXHIBIT NO. P-714(RESERVED): 25
451 CONTINUED BY MS. KATHERINE HENSEL: 2 Q: Okay, okay. So, have you turned to 3 Tab 7, Ms. Hipfner? 4 A: I have. 5 A: You'll see there, there's a fax from 6 Sandy Hunter enclosing a letter from the Minister of 7 Defence, Kim Campbell, dated June 8th, 1993. For the 8 record, that's Inquiry Document Number 1006001. 9 The fax cover states: 10 "Two (2) members of the Ipperwash 11 working group committee." 12 And you are also listed as a recipient 13 there, is that correct? 14 A: I am. 15 Q: Do you recall seeing this letter? Do 16 you recognise this letter? 17 A: I recall learning, essentially, 18 what's contained in the letter. I probably did read the 19 letter, but I don't have an independent recollection of 20 that now. 21 Q: Okay. All right. And the letter 22 appears to outline the Federal Government's position with 23 respect to camp Ipperwash? 24 A: Yes. 25 Q: And it state -- states that the
461 Government has a continuing requirement for Camp 2 Ipperwash and is not in a position to return the land. 3 Do you recall any further conversation 4 about that letter in the working group or in any other 5 context? 6 A: No, I don't. 7 Q: Thank you. All right. If we could 8 enter that letter as the next exhibit? 9 THE REGISTRAR: The document number -- 10 what was the document number of that, Ms. Hensel? 11 MS. KATHERINE HENSEL: It is 1006001. 12 THE REGISTRAR: Thank you. 13 COMMISSIONER SIDNEY LINDEN: This is a 14 letter to Chief Tom Bressette -- 15 MS. KATHERINE HENSEL: That's right, 16 thank you. 17 COMMISSIONER SIDNEY LINDEN: -- from the 18 then Minister, Kim Campbell. 19 MS. KATHERINE HENSEL: Yes. 20 THE REGISTRAR: P-715, Your Honour. 21 22 --- EXHIBIT NO. P-715: Document Number 1006001. Fax 23 message from Sandy Hunter to 24 members of Ipperwash working 25 group committee attaching
471 letter from A. Kim Campbell, 2 Minister of National Defence 3 and Minister of Veterans 4 Affairs, Sent to ONAS June 5 07/'93, re. Starting 6 negotiations about the Kettle 7 and Stony point band members 8 reversionary interest in Camp 9 Ipperwash. 10 11 CONTINUED BY MS. KATHERINE HENSEL: 12 Q: And beyond what we have discussed 13 here, can you recall having any other -- any further 14 professional involvement or providing any other services 15 with respect to the situation at Ipperwash in either 1993 16 or 1994? 17 A: I remember that in addition to the 18 occupation of the Military Base or the Army Camp by 19 members of the Stony -- Kettle and Stony Point First 20 Nation, there were also at the time concerns about 21 potential conflicts, between members of that First Nation 22 and cottagers who had properties along the shoreline of 23 Lake Huron. 24 There seemed to be some conflict between 25 the two (2) groups that -- that there was some concern
481 about at the time. 2 Q: All right. And how did you learn 3 about this -- what you've just described? 4 A: In the course of my duties. I don't 5 remember specifically how I learned about that. 6 Q: And did you do anything as a result 7 of learning that information? 8 A: I remember that it was an issue that 9 was ongoing for some time and that I provided legal 10 advice in relation to it, but I don't have any specific 11 recollection of what I did at the time. 12 Q: Thank you, Ms. Hipfner. Now -- 13 turning now to 1995, were you aware during the Summer of 14 1995 that the people occupying Camp Ipperwash had moved 15 into the barracks or built-up area of the Army Camp? 16 A: It was general knowledge within the 17 Native Affairs Secretariat and so I expect that I -- I 18 also knew about it. 19 Q: All right. And do you recall how you 20 learned of that? 21 A: No, I don't. 22 Q: And did you attend Interministerial 23 Committee -- or Emergency Planning for Aboriginal issues 24 Interministerial Committee meeting on August 2nd, 1995? 25 A: No, I didn't.
491 Q: We understand from other witnesses 2 that that meeting was convened to discuss the situation 3 at Ipperwash; were you aware of the meeting? 4 A: I don't recall. 5 Q: What was your next involvement with 6 the situation at Ipperwash? 7 A: On the morning of September 5th, 8 1995, Julie Jai came to my office and said that there was 9 going to be a meeting of the Interministerial Committee 10 to address the occupation, the previous evening, of the 11 Provincial Park by members of Kettle and Stony Point 12 First Nation. 13 She said that ordinarily Dave Carson who 14 was the senior lawyer in our branch, would have gone but 15 that he wasn't available to go that morning and was I 16 busy and could I go with her. And I said I wasn't busy 17 and yes, I would go. 18 Q: Okay. And at the time, what did you 19 understand the role of the Interministerial Committee to 20 be? 21 A: The Interministerial Committee which 22 was -- had a standing membership, met to deal with 23 Aboriginal emergencies of one sort or another; so 24 blockades or -- or occupations. 25 And it had two (2) important functions,
501 from my perspective. One was information sharing to make 2 sure that deputies and ministers in the various effective 3 ministries were getting consistent information across the 4 piece. 5 And -- and it had an important advisory 6 function. Both to recommend courses of action for 7 addressing the occupation or the blockade and developing 8 public messaging, recommended public messaging as well. 9 Q: All right. And from your 10 understanding did the Committee have any -- any decision 11 making capacity or authority? 12 A: No, I didn't understand the Committee 13 to have any decision making powers. It would make 14 recommendations up the line through the deputy ministers 15 to the -- to the ministers. And ministers of course were 16 free to make decisions of their own that were not 17 consistent with the recommendations of the Committee. 18 Q: All right. And before I take you to 19 your -- your notes from that meeting, in general, what 20 can you recall about the September 5th, 1995 meeting? 21 A: Very generally what I recall about 22 the meeting was that it was fairly large. There were a 23 large number of attendees. They consisted of one (1) 24 MPP, several political staff from various ministries, 25 civil servants from various ministries, three (3) MNR
511 staff who were patched in by conference call were not 2 physically in attendance with us. 3 I recall that -- that information was 4 shared about -- about the situation at Ipperwash 5 Provincial Park, that there was discussion about possible 6 approaches to addressing it including possibly 7 recommending that an injunction be obtained. 8 I remember that the meeting was quite 9 unremarkable for the first part of the meeting, but that 10 at some point Deb Hutton who was the -- who was attending 11 from the Premier's office told the group that the Premier 12 was hawkish and wanted -- I'll refer to my notes for -- 13 for exactly what she said but certainly wanted a 14 proactive approach to addressing the occupation of the 15 Park. 16 And what I recall was sensing that a 17 change in the -- in the tone of the meeting and the -- 18 and the mood of the meeting that what I sensed was that 19 it was -- there was much more tension afterwards. 20 I recall that at the end of the meeting 21 the Committee took the decision that -- that they would 22 investigate the option of obtaining an injunction, get 23 more information about it, and that the group decided it 24 would meet again the next day. 25 Q: And is that the extent of your
521 independent recollection with respect to that meeting? 2 A: No, it's not, that's just sort of a 3 general overview. There are -- there are specific -- 4 specific things that I do recall that I'll be happy to 5 discuss with you. 6 Q: All right. And we will -- you'll 7 make those comments or you'll add that information as we 8 -- as we go through your notes. But, just to be clear 9 the information that you just imparted, that is all 10 information that you recall independently of -- 11 A: That is. 12 Q: -- of your notes? 13 A: That is. There are other details 14 that I recall as well independently. 15 Q: If I could take you now to your notes 16 from that meeting; they're at Tab 14 -- 17 A: Thank you. 18 Q: -- of the book of documents in front 19 of you. For the record, Ms, Hipfner's notes appear at 20 Inquiry Document Number 1011739 which is Exhibit P-510. 21 First of all do you recognize the document 22 in front of you? 23 A: Yes, I do. 24 Q: And -- 25 A: They're my handwritten notes of the
531 meeting. 2 Q: All right. Thank you. And before 3 we begin I should just tell you, Mr. Commissioner, what I 4 intend to do is because Ms. Hipfner's notes have been 5 relied -- or referred to fairly extensively in these 6 proceedings and because she uses certain stylistic points 7 in her handwriting that may be difficult for others to 8 interpret, Ms. Hipfner is actually going to read her 9 notes into the record as we proceed. 10 And I would ask you, Ms. Hipfner, as well, 11 to make it clear as you're going through what you're 12 reading from your notes and what you recall. If there's 13 anything else that you recall or any other information 14 that you give that you indicate whether it's a result of 15 something you recall independently, something that you 16 recall as a result of reading your notes, that your 17 memory has been refreshed, something that you recall only 18 as a result -- that you don't recall, but it's in your 19 notes, or if there's -- 20 A: A grey area? 21 Q: -- a grey area. 22 A: And perhaps I can say upfront that 23 there's probably a large grey area, that over the course 24 of ten (10) years, and in response to requests for 25 disclosure of documents under the Freedom of Information
541 and Protection of Privacy Act in response to disclosure 2 of documents in the civil action that was launched by the 3 George Family and then in response to the -- the Inquiry 4 that was established a couple of years ago, I have had 5 numerous occasions -- there have been numerous occasions 6 where I have had recourse to the notes and -- and have 7 had to review them, sometimes even transcribe them. 8 And of course what happens then, over time 9 is, it can be difficult to distinguish what you actually 10 recall independently from what you sort of remember 11 because from time to time over a period of ten (10) years 12 you've had recoursed your notes. 13 So, I -- I should say at the outset that 14 there's a very large grey area and I'm sometimes just 15 unable to determine whether I remember these things 16 independently or whether I've just read them, you know, a 17 great many times. 18 I can certainly indicate and perhaps 19 you'll remind me as we go through to do this, certainly I 20 can indicate when I've recorded something, but also have 21 an independent recollection of it. There are certainly 22 things that I have an independent recollection of and I 23 know that because they were never recorded in my notes. 24 I -- I should perhaps say at this time too 25 that my notes were -- were certainly not intended as a
551 verbatim transcript of the discussion that was held at 2 the time. I know that there are gaps in it and -- and I 3 just want you to be aware of that. 4 Q: All right. Thank you, Ms. Hipfner, 5 that's very helpful. 6 All right. To begin, then, if you could 7 start on the first page of that document? 8 A: I've indicated the date which was the 9 5th of September, 1995 and that this was a meeting of the 10 Aboriginal Emergencies Committee. As you know it had a 11 variety of names; that was referred to by a variety of 12 names. 13 The first thing I've recorded is that: 14 "The group last met on August 2nd to 15 discuss possible occupation of 16 Ipperwash PP [which is Ipperwash 17 Provincial Park]. 18 Second point that: 19 "Last night 7:30 p.m. Stoney Pointers 20 occupied the Park." 21 I have not attributed either of those 22 remarks to any particular individual and I don't recall 23 who said them. 24 Q: Thank you. 25 A: The second point and -- and I believe
561 that what I've done is -- is follow the numbering of the 2 items that was in an agenda that would have been 3 distributed to the group. 4 The first point under Point Number 2 is: 5 "EH court decision." 6 And this is simply indicating after the 7 fact that I have provided information to the group about 8 what was, at that time, a very recent decision of the 9 Ontario Court General Division, Judge Killeen who had 10 dismissed a -- you know I get -- this is litigation 11 stuff, I get confused, a motion for summary dismissal, is 12 that what it was? 13 Q: A summary judgement, I believe. 14 A: Thank you. The -- the -- it had 15 involved an assertion by Kettle and Stoney Point First 16 Nation that a surrender of lands at Kettle Point rather 17 than Stoney Point in 1927 had been dismissed by the 18 court. 19 The court had found that the surrender was 20 -- was valid despite some technical difficulties with it. 21 So I provided that information to the group and then I've 22 indicated -- the next line says, "Eliz" -- I actually, by 23 the way, do not recall providing that -- that overview to 24 the -- to the group and I wouldn't have known it but for 25 the fact that I've recorded it in my notes.
571 The second point is -- it says: 2 "Eliz..." 3 Which is a reference to Elizabeth Christie 4 who is a lawyer from the Crown Law Office Civil, somebody 5 who specialized in Aboriginal law. 6 "... said the decision affects 7 Ipperwash Provincial Park - part of the 8 1927 surrender." 9 And then I've indicated that she said: 10 "Has the affect of confirming Ontario's 11 title to the Park lands." 12 That is, of course, incorrect. 13 Q: Were you -- just to interject with a 14 quick question. Were you aware at the time that that was 15 incorrect? 16 A: I don't remember. I also don't 17 remember Elizabeth making that comment. 18 Q: Okay. 19 A: And finally the third point under -- 20 third bullet point under Number 2 says: 21 "Dave: Also an action relating to bed 22 and waters of Lake Huron." 23 And I've indicated -- I've put Lake Huron 24 with a question mark in square brackets indicating that I 25 didn't quite catch what he said but I thought he said,
581 "of Lake Huron." 2 Can we go back up to the second bullet for 3 just a moment? 4 Q: Yes. 5 A: You'll see it says Eliz -- "Decision 6 affects Ipperwash PP - Park," and then there's a symbol, 7 1927 surrender. 8 When I was in law school, one of my 9 classmates who had studied Pitman shorthand -- when I was 10 at law school one of my -- my classmates who had studies 11 Pitman shorthand in high school, taught me a number of 12 Pitman shorthand symbols for, you know, little words; at, 13 of, in, on, for and then the symbol as well for attaching 14 the word 'the' to those, of the, in the, and the, and 15 they've just persisted right through to the present time. 16 And I realize it makes my notes a little 17 bit difficult to read, a little bit cryptic. But those 18 are just my version of Pitman shorthand symbols picked up 19 in law school to speed note taking along. 20 Q: And so that symbol there, the little 21 divot on the second bullet -- 22 A: That's, "of the." 23 Q: -- "of the". Thank you. 24 A: Yes. 25 Q: All right. And the Dave that you
591 have referred to earlier, do you recall which Dave you're 2 referring to? 3 A: Yes. Well that's surprising. And of 4 course the only reason that I was at the meeting that day 5 was because Dave Carson, who is the senior counsel in our 6 office, wasn't available to attend. 7 The only Dave that I can imagine that this 8 was, reporting on a legal issue like this, would have 9 been Dave Carson. So, although there's some -- I'm 10 conjecturing here, I think maybe he made the first part 11 of the meeting and then had to leave. But if he had been 12 there -- 13 Q: Do you have any -- 14 A: -- I would have left. 15 Q: And do you have any independent 16 recollection of seeing him there? 17 A: No. Dave was not at the meeting. 18 Q: Okay. There was also at the meeting, 19 I can advise we anticipate we will hear from, Mr. David 20 Moran -- 21 A: Yes. Dave Moran was an aide to the 22 attorney general and wouldn't have known, I don't 23 believe, that there was an action relating to the bed and 24 waters of Lake Huron. 25 Q: All right. Thank you. If we could
601 proceed to the next point? 2 A: The next point says: 3 "MNR guy on the telephone." 4 There were three (3) MNR staff, none of 5 whom I knew, participating in the meeting by conference 6 call. And I simply knew that this was one of them. 7 And what he says is: 8 "New archaeological evidence that there 9 may be a burial site in the Park." 10 Q: All right. 11 A: I don't know what archeological 12 evidence he's -- he's referring to or whose archeological 13 evidence he's referring to, and in fact I don't recall 14 the statement being made. 15 Q: All right. And can you recall any 16 further discussion of -- on that particular issue? 17 A: No, I don't. 18 Q: Okay. And in your mind, at the time, 19 did you associate the evidence that he's discussing with 20 the occupation of the Park? 21 A: When the committee met on -- on 22 September 5th the occupiers of the Park had provided no 23 information to us concerning the reasons why they had 24 occupied the Park, so certainly one (1) possibility, 25 though I -- I -- was that -- was that it may relate to
611 the fact of the burial site in the Park. There were 2 other possibilities. 3 Q: Okay. And that was no information 4 that you were personally aware of? 5 A: No. 6 Q: Okay. Okay. At the time, were you 7 aware of the significance -- the particular significance 8 of burial sites to Aboriginal people? 9 A: I don't recall. 10 Q: All right. All right. If we could 11 continue? 12 A: The next point, number 3, says: 13 "SG update." 14 SG is of course Solicitor General. 15 Q: Hmm hmm. 16 A: And the -- although I've not named 17 him my recollection is that it was Ron Fox, Inspector Ron 18 Fox, who provided the following information. 19 First point is: 20 "OPP reported that at 7:30 p.m. 21 yesterday SP'ers [the Stoney Pointers] 22 entered Ipperwash Provincial Park." 23 Next point is: 24 "It had shut down at about 6:00 [6:00 25 p.m.]"
621 He said that there were thirty-five (35) 2 to forty (40) people occupying the Park. 3 And I -- I do have an independent 4 recollection that he indicated either at this time or 5 subsequently that it was a combination of men, women, and 6 children, all of whom were thought to be members of 7 Kettle and Stony Point First Nation and who were also 8 thought to be some of the same people who had occupied 9 the -- the Military Camp. 10 Q: Thank you. 11 A: He went on to say, and this is the 12 next point that: 13 "The OPP have a command post set up at 14 the Legion Hall in Forest, have 15 established a perimeter around the 16 Park. Awaiting next steps from MNR. 17 Late yesterday OPP accompanied MNR 18 staff to the Provincial Park and issued 19 a written notice of trespass. [And 20 finally he says] Stable situation." 21 Q: And just to take you back to one (1) 22 of the points that -- that you'd mentioned: 23 "Awaiting next steps from MNR." 24 A: Hmm hmm. 25 Q: Do you have any -- any independent
631 recollection of any further detail on that issue or -- 2 A: No, I don't. 3 Q: -- or what you might have understood 4 that comment to mean? 5 A: Well, MNR, of course, was the owner 6 of the -- the lands. You know, within government it -- 7 it held title to the -- to the Park lands. 8 And certainly I would have understood that 9 the OPP and Ministry of Natural Resources were 10 coordinating their efforts around, you know, an approach 11 to dealing with the occupiers at the Park. And that at 12 this point I guess the -- the Ontario Provincial Police 13 were awaiting some information or something from Ministry 14 of Natural Resources staff or from the -- from the -- 15 from the Ministry. 16 Q: Okay. And in terms of the 17 information imparted by Mr. Fox, and his tone in 18 imparting it, did you form the impression that he regard 19 this situation as an urgent situation at the time? 20 A: No, I didn't. It was not unimportant 21 but it wasn't urgent. 22 Q: All right. And then just moving on 23 the next point on the following page? 24 A: The top of page 2 next to item number 25 4 what I've probably -- what I believe I originally wrote
641 was -- was what appears sort of one (1) line down which 2 is: 3 "Another guy on the phone." 4 And I have subsequently learned that it 5 was Peter Sturdy and have -- have filled in his name. 6 Peter Sturdy's voice was very distinct, very 7 recognizable, because he has this lush British accent. 8 So he -- he became very identifiable to me when he was 9 speaking. 10 And what he indicated and I've -- I've 11 underlined this word, he said: 12 "There was an attempt to serve written 13 notice of trespass. Stoney Pointers 14 refused to accept and OPP/MNR were told 15 to leave. Wouldn't ID a spokesperson." 16 So, he was indicating that the Stoney 17 Pointers would not identify a spokesperson from among 18 them. 19 Q: All right. 20 A: He then goes on to say: 21 "Some native people entered [and 22 there's a blank. He named a building 23 and I didn't catch it]. Wrote 'Stoney 24 Point Number 43 on blackboard'." 25 And I do remember this, because the number
651 43 seemed to be a mystery to people, they wondered what 2 this could possibly signify. 3 And, of course, somebody offered the 4 information which I haven't recorded, that -- that the 5 Department of Indian Affairs, when it establishes 6 reserves, assigns a number to them for administrative 7 purposes and that all this was, was -- was the -- the 8 Department of Indian Affairs number for the previous 9 reserve. 10 I think there was some disappointment 11 about that response. 12 The next point is that: 13 "The main entrance to Park was blocked 14 by an older vehicle." 15 The next point: 16 "9:30 [I'm sorry] 9:30 p.m. OPP MNR 17 staff were told to leave the Park. [and 18 I indicate -- I've indicated they were] 19 standing near, but outside the main 20 entrance." 21 It goes on to say there was a: 22 "communications centre set up at 23 Forest. Media being directed there. 24 OPP check stations set up on Highway 21 25 and other roads in the area.
661 Park has been closed to everybody 2 including day trippers under..." 3 PLA would be the Public Lands Act, but I 4 think that's actually incorrect. I think it's probably 5 under the Provincial Parks Act. 6 "He indicated that that was exceptional 7 and it creates a trespass situation. 8 Prevents others from entering the 9 Park." 10 I think what was explained to us at the 11 time, and this is an independent recollection that I have 12 -- by the way, I don't -- I don't necessarily remember 13 independently each of these details that I'm describing 14 for you. 15 But, I do remember that the closing of the 16 Park at the end of Labour Day simply meant that there 17 would be no more camping permitting within the Park until 18 it re-opened. But that day tripping, you know, hikers 19 and canoeists and that sort of thing, would have 20 continued to use the Park at least into the Autumn and 21 they were not going to be able to do so now, because the 22 Provincial Park had been closed, and they would be 23 trespassing if they did that. Mr. Sturdy then indicates: 24 "There's no indication that the Stoney 25 Pointers are armed. [He says] There is
671 an assumption that these are some of 2 the same people who have occupied Camp 3 Ipperwash. [and he says] Occupiers 4 haven't issued any statement or 5 communications." 6 And then he indicates a -- there's a quote 7 in the London Free Press. 8 Q: I have a few questions about that -- 9 that passage, but just to take you back. Something I 10 should have asked with respect to Ron Fox's update that 11 you described -- 12 A: Yes. 13 Q: -- did he indicate to the meeting 14 where he'd got the information he was conveying? 15 A: I don't remember. 16 Q: And did Mr. Sturdy indicate where he 17 got the information he -- 18 A: I also don't remember that. 19 Q: Thank you. All right, just to 20 continue. 21 A: Number 5, the title is, Options. It 22 says: 23 "Bags should consider injunction 24 first." 25 Now, that's actually a reference to Jeff
681 Bangs, rather than Bags who was an aide to the Minister 2 of Natural Resources, but I hadn't figured out his name 3 yet. 4 Q: Okay. 5 A: Then apparently Peter Sturdy says: 6 "The Township of Bosanquet is getting 7 an injunction re. Matheson Road [that 8 is between the Camp and Park]." 9 I've indicated through -- this line that's 10 drawn down from Matheson Road, that that is a municipal 11 road and that it was being blocked. And it was being 12 blocked, I've indicated, with an arrow, by virtue of, it 13 says: 14 "Gate, felled trees, et cetera." 15 Elizabeth Christie then indicates that: 16 "It would be useful to have the name of 17 the lawyer representing [well, 18 representing -- M stands for 19 Ministry]..." 20 Q: All right. 21 A: "...and to work together if 22 possible." 23 So she's suggesting she'd like to know who 24 -- who from the Ministry of Natural Resources legal 25 branch she might be working with.
691 Q: And if I could interject -- 2 A: Yes. 3 Q: Is it possible that that's a 4 reference to municipality as well? 5 A: Oh, you know what? That is -- that 6 is actually possible. M also stands for municipality in 7 my shorthand. 8 Q: Thank you. 9 A: Yes, that's right. 10 Q: All right. 11 A: Sorry. The next point is that 12 somebody from MNR says that: 13 "Need to have a talk with them about 14 what they're trying to accomplish. 15 They're occupying an empty Provincial 16 Park. [he says] We shouldn't be too 17 precipitous about what we do, even with 18 respect to [WRT is with respect to] 19 obtaining injunctions. 20 MNR is denied access to a Provincial 21 Park, that's a concern. Plant and 22 physical infrastructure potential for 23 damage. 24 [he says] The First Nation probably 25 wants the Government to take action.
701 [and finally on that page] But the 2 Deputy Minister of Natural resources 3 would like to have an injunction ready 4 to go if necessary, but to keep it in 5 the back pocket for now." 6 Q: And just to turn to the following 7 page as well. It looks like there's a continuation. 8 A: And then he says: 9 "Is there really an argument we can 10 make regarding urgency?" 11 Q: All right. And can you recall, was 12 that someone on the phone? 13 A: I think it was Peter Allen who was in 14 attendance at the meeting that day. 15 Peter Allen was an executive assistant to 16 Deputy Minister Ron Vrancart, at the Ministry of Natural 17 Resources. 18 Q: Okay, thank you. Okay, just to 19 continue? 20 A: Then Mr. Bangs says: 21 "We can afford to wait. If -- if we 22 get an injunction, we'll be expected to 23 move in, don't want to escalate the 24 situation. Plus, [he says], there's 25 always the potential for Mohawk
711 warriors to move in. Let's avoid 2 that." 3 And finally I have recorded him as saying: 4 "Public safety doesn't seem to be an 5 issue at the moment. 6 That reduces urgency and therefore 7 chances of successfully getting an 8 injunction." 9 Q: Okay. 10 A: Then I've recorded Deb, meaning Deb 11 Hutton who was the aide to the Premier saying: 12 "The Premier is hawkish on this issue. 13 It will set the tone for how we deal 14 with these issues over the next four 15 (4) years." 16 Jeff Bangs says: 17 "SPR..." 18 Meaning the statement of political 19 relationship which was the -- sort of the centrepiece of 20 the previous government's Aboriginal policy, 21 "...is the bigger umbrella issue." 22 And I've then recorded Ms. Hutton as 23 saying: 24 "This is a clear cut issue of Ontario's 25 ownership of the property."
721 And then I seem not to have caught the 2 entire next sentence but she -- I've indicated that she 3 said something about how this may be the time and place 4 to move decisively. 5 Q: All right. If I could just take you 6 back to the comment -- to Ms. Hutton's first comment that 7 you have noted there. At the time, did you know what 8 "hawkish" meant, the word "hawkish?" 9 A: Well, I knew what it meant, but 10 because I had never heard it used in the context of doing 11 government business, I -- I -- it -- I couldn't digest it 12 immediately. 13 I remember sort of having to sort of stop 14 and deliberately think about what this word meant. 15 Q: What did you understand it to mean? 16 A: I understood it to mean aggressive. 17 I have heard it used, largely in relation to well -- as 18 meaning war-like as opposed to dove-like, which is often 19 the word it's contrasted with. 20 And so certainly I understood it to mean - 21 - I understood it to mean aggressive, wanting to be 22 proactive about -- about dealing with the matter. 23 You'll see that -- that under Ms. Hutton's 24 -- the second comment I've recorded on that page, there 25 are actually a couple of spaces before I go on to -- to
731 describe what Ron Baldwin says. 2 I'm not sure that I do this consciously, 3 but I know I do this a lot, and that is when I have not 4 recorded comments that somebody makes, remarks that 5 somebody makes, I've been listening and I don't -- I 6 don't record them and then move onto, you know, the next 7 speaker as -- as they start speaking. 8 I will often leave more than the usual one 9 (1) space between speakers and that does indicate to me 10 that -- that Ms. Hutton said something more than I've 11 recorded. 12 Q: All right. And I just have one other 13 -- one other question about Mr. Bangs' comments that you 14 have noted there. With respect to the statement of 15 political relationship -- 16 A: Hmm hmm. 17 Q: -- or SPR. 18 A: Yes. 19 Q: Were you aware of -- of that document 20 at the time? 21 A: Absolutely, yes. 22 Q: Okay. And what did you understand 23 its role to be? 24 A: It guided the policy making function 25 and the relationship between the previous New Democratic
741 Government and Aboriginal peoples and -- and communities 2 within the province. 3 Q: Okay. And how did you become aware 4 of that document? 5 A: As a lawyer working in the Government 6 and dealing with Aboriginal matters it would have been 7 impossible that this not -- didn't come to my attention. 8 It would have come to my attention in the ordinary course 9 of my work, but I don't remember specifically when I 10 first encountered it or how. 11 Q: Thank you. All right. And just to 12 continue? 13 A: My notes then record Ron Baldwin as 14 saying: 15 "There are permanent homes and cottages 16 in the area. [He said -- I think he 17 says] We have to think about [he says] 18 -- think about relationship with Kettle 19 and Stoney Point First Nation. They're 20 likely to get frustrated if we don't 21 take some sort of action." 22 At the top of page 5 there is the heading, 23 "Alternatives to Injunction." And I have recorded Ron -- 24 and I believe that's Ron Fox saying that: 25 "People from throughout the province
751 may be here. [That] There are more 2 occupiers than there are Stoney 3 Pointers. 4 Difficult for the police to secure." 5 And I think he's meaning the -- the 6 perimeter of the Park. He says -- because there's forest 7 and beach access. 8 "The longer they're there, the more 9 familiar they become with surroundings 10 and the more difficult it becomes to 11 remove them." 12 I do independently recall Ron talking 13 about those things. I thought they were sort of 14 fascinating things that police know and I -- I remember 15 them. 16 Jeff Bangs then comments: 17 "The Township of B..." 18 That would have been the Township of 19 Bosanquet, but I wasn't familiar with it yet, didn't know 20 what he'd said: 21 "...is thinking it may not award tender 22 for sewer work to Kettle and Stony 23 Point First Nation." 24 These seem a little bit disjointed, these 25 remarks. I don't know whether that's because I was
761 missing some things or whether the conversation at that 2 point was just a little bit -- a little bit disjointed. 3 "Elizabeth [meaning Elizabeth Christie] 4 says that there are five (5) options. 5 [She says] First Criminal Code." 6 And she indicates that mischief charges 7 among others. Number 2 the Trespass to Property Act, the 8 Provincial Lands Act and the Provincial Parks Act which 9 she describes as creating provincial offences might be 10 employed and the fifth thing she discusses is -- is an 11 injunction. 12 She says: 13 "It doesn't have to be -- doesn't have 14 to be emergency basis, that you can 15 commence an action for trespass in the 16 civil courts, get an interim injunction 17 and that irreparable harm is the test. 18 [She says] A problem arises when they 19 [meaning the -- the occupiers of the 20 Park in this case] don't comply with 21 the order]." 22 And then indicates that civil or criminal 23 contempt proceedings would be what you'd have to resort 24 to, but she says: 25 "If they won't leave it comes down to
771 using force." 2 Q: Okay. And just in terms of Ms. 3 Christie's briefing that you have noted there, do -- do 4 you have any other independent recollection of what she 5 discussed? 6 Well, first of all can you recall her 7 providing that briefing, independently? 8 A: I -- I remember there was discussion 9 about the various legal options that would be available 10 for addressing the occupation of the Park. I don't 11 remember that much detail about the injunctions, not 12 independently, but this is certainly -- certainly 13 consistent with my general recollection of the meeting. 14 Q: Okay. And at the time how familiar 15 would you describe or what was your level of knowledge 16 with respect to the injunctive process? 17 A: I was a student in all of this. I -- 18 I had never, as far as I can recall, been involved in -- 19 in a matter requiring an injunction. 20 Q: All right. Thank you. Just to 21 continue on page 6 of your handwritten notes? 22 A: At the top of page 6 I've indicated 23 Ron. 24 Q: Do you recall if that's Ron Fox or? 25 A: Or Ron Baldwin?
781 Q: Yeah. 2 A: I don't actually. Saying: 3 "First of all we have to find out what 4 the First Nation really wants. If the 5 burial site is an issue, let them raise 6 it. They haven't yet." 7 And then he says something about the 8 trespass to Property Act which I haven't recorded. And 9 you could see again that I've left a little extra space 10 indicating that there was some -- there were remarks that 11 I haven't recorded here. 12 Then Shelly, who would be Shelly Spiegel, 13 who was working at cabinet office at the time, says: 14 "Logistics risk of enforcement have to 15 be carefully considered." 16 Christian Buhagiar was an aide to Dan 17 Newman, who was a member of Provincial Parliament and the 18 Parliamentary Assistant to the Minister Responsible for 19 Native Affairs, said we need a communication plan. 20 And then suggested that there was an issue 21 of doing anything that confirms status or recognition or 22 legitimacy on the Stoney Pointers. And he says: 23 "If we send someone from ONAS, it 24 confirms their [meaning Stoney 25 Pointers] legitimacy. OPP and MNR are
791 on the ground and running. They'd be 2 more appropriate." 3 Now I've left a few spaces and I've not 4 indicated who made the next points. 5 Q: And can you recall who made the next 6 points? 7 A: Sorry? 8 Q: And can you recall who made the next 9 points? 10 A: Oh, yes. Actually I do. At some 11 point Ron Fox was asked to go and confirm some of the 12 information that the MNR people had been providing to us. 13 And so I think what -- what had happened at this point is 14 he's left the meeting, he's -- he's contacted his 15 contacts, obtained information and now he's reporting 16 back to us. 17 And what he says is: 18 "The Park is closed. The users have 19 left. MNR is being denied access. 20 Somebody has been informed they're 21 trespassing. Told them to leave." 22 No, you know what, this isn't Ron Fox. 23 I'm sorry. Jumped ahead of myself to the update at the 24 very end. Actually I -- I don't recall who made these 25 points.
801 Q: All right, thank you. 2 A: No, hold on a second, sorry. 3 Q: That's all right. It was a long -- 4 it was ten (10) years ago so it -- 5 A: It was ten (10) years ago, yes. 6 Q: -- is very difficult to recall. 7 A: I think this is a discussion. What I 8 recall is that this is a discussion among the 9 participants of the meeting, led very much by Julie who 10 was trying to sort of get consensus now towards the end 11 of the meeting about what -- what we understood what we 12 agreed about. 13 And so this is a summary of the situation. 14 I don't know who would have said it. It may have been 15 Julie, that: 16 "The Park is closed. The users have 17 left. MNR is being denied access. 18 They have been informed that they're 19 trespassing. Told them to leave. Have 20 firm title to the Park, [meaning the 21 Province has firm title to the Park]. 22 Will be taking action to remove them 23 from the Park." 24 And then a point about persuading the 25 Chief and that is the Chief of Kettle and Stoney Point
811 First Nation. To say publicly that the Band doesn't 2 support the Stoney Pointers. 3 Q: All right. And had that particular 4 point been raised previous, to your recollection? The 5 last point that you mentioned. 6 A: At some point in the meeting, yes, I 7 recall it being reported that the Chief of Kettle and 8 Stoney Point First Nation or the chief in council were 9 not supportive of the actions of the Stoney Pointers in 10 occupying the Park. 11 Q: Can you recall who conveyed that 12 information? 13 A: I think it was Julie. 14 Q: Okay. And was there any discussion 15 of why it would be desirable to persuade the Chief to say 16 publicly that the Band didn't support the Stoney 17 Pointers? 18 A: Sorry, I just -- I just need a moment 19 to think about this. 20 Q: That's all right. 21 A: I mean I don't know that there was -- 22 there was necessarily discussion about it. It would be 23 helpful to the Government in any public messaging to be 24 able to say that -- that -- that the legitimate, you know 25 the Government of the community of Kettle and Stoney
821 Point First Nation also disapproved of the action of the 2 -- of the occupiers of the Park. 3 That the Government wasn't isolated in -- 4 in it's view that the occupation was improper or illegal. 5 But that the -- that the Government of the -- of the 6 First Nation community agreed with that assessment. 7 Q: All right. And would that have been 8 an understanding that you gained from this meeting or 9 would you have come to the meeting with understanding 10 what you've just described? 11 A: Of course I was just pulled into this 12 meeting and I don't remember what I knew going in. I 13 think there was some discussion about the utility of 14 having the First Nations, you know, chief and council on 15 the side in any -- any sort of public discussion about 16 this -- this issue. 17 Q: All right. Thank you. Okay. Your 18 next point, on the next page? 19 A: The heading is, Agreement, and this 20 reflects the -- the decisions that were taken by the 21 committee that day. 22 The first is that there were three (3) 23 messages for the public. I haven't recorded what they 24 are. 25 The second is that -- is that there would
831 be an assessment: 2 "Assess quick legal mechanisms 3 including ex parte injunction." 4 Number 3: 5 "Brief ministers." 6 Number 4: 7 "Meet again tomorrow." 8 And then the very last thing that I've 9 recorded in my notes is the update from Ron Fox that I -- 10 I discussed earlier and he reported back to the group at 11 that point that: 12 "At 10:00 a.m. there were only seven 13 (7) to nine (9) natives occupying the 14 Park [and that that] included women and 15 children. [that] They have cut some 16 trees to form a barricade. [and he 17 said] There has to be a certain 18 latitude for the OPP to act. [and that] 19 That is why relatively few people are 20 in the Park and others have left to go 21 to work." 22 Q: And just on that final point, do you 23 recall any other discussion at this particular meeting on 24 September 5th about the role of the OPP and the OPP 25 discretion, in general?
841 A: My recollection is that there was 2 some discussion certainly not recorded in my notes about 3 -- about the OPP deciding their own operation -- police 4 in general, determining their own operation -- making 5 their own operational decisions and interference from 6 outside, whether it's politicians or bureaucrats or 7 members of the public, is not something that's -- that's 8 possible or permissible. 9 Q: Okay. And can you recall who 10 participated in that discussion? 11 A: No, I don't. 12 Q: All right. And in terms of the 13 various people at the meeting what was your impression as 14 to how -- based on what you saw and heard them say and 15 their tones about how urgent -- urgently they viewed the 16 situation? And if you can be as specific as possible 17 that would be very helpful. 18 A: Hmm hmm. I think the vast majority 19 of the participants in the meeting and I include both 20 civil servants and political staff in this is that it was 21 certainly a serious situation. It certainly demanded 22 attention and action, but that it was a stable situation, 23 that it was not apparently, at this point, a dangerous 24 situation and not an urgent situation. 25 You -- you saw that reflected in a
851 discussion about whether there was really any basis for 2 applying for an ex parte injunction, whether we -- we 3 really could make the case for urgency. 4 So, nobody diminished the seriousness of 5 the -- of the issue, but I think there was a sense among 6 most of the participants that, in fact, it -- it wasn't 7 an urgent issue. 8 I think there were two (2) exceptions. 9 The first was Ms. Hutton who seemed to regard the 10 situation as somewhat more urgent and -- 11 Q: And -- and what's the basis -- 12 A: -- who seemed to me -- 13 Q: Yeah. 14 A: -- to regard the situation as much 15 more urgent. And it was both her demeanor and -- and the 16 things that she said and -- and I reviewed them earlier. 17 And then there was this -- there were the 18 MNR staff who were participating in the meeting by 19 conference call. And I remember my impression being at 20 the time that they -- that they seemed to have aligned 21 themselves with Ms. Hutton in terms of regarding the 22 situation as more urgent perhaps than the rest of the 23 group did. 24 But, when I reflect on it I think that 25 they were in a very difficult position. They were
861 participating in a -- a very large meeting, not in 2 person, but -- but, you know, connected by telephone. We 3 had an antiquated telephone system there. 4 If there were introductions made at the 5 beginning of the meeting and I don't remember whether 6 there were. Certainly as each person spoke they were not 7 reintroducing themselves. You know when I -- well, I -- 8 I don't think I did speak, but you know Ron Fox wasn't 9 saying, This is Ron Fox speaking now. 10 And so I think it must have been very 11 difficult for the -- the MNR staff, who were 12 participating by conference call, to follow the meeting 13 and difficult for them to read the meeting. 14 Or -- so what I remember is that their 15 comments seemed kind of out of sync sometimes with -- 16 with the direction that the rest of the group seemed to 17 be going. Or most of the rest of the group seemed to be 18 going, with the possible exception of Ms. Hutton. 19 But I'm sensitive to the fact that -- that 20 -- that they weren't attending the meeting in person and 21 couldn't read the meeting; didn't know who was speaking. 22 And so I think that some of what I 23 perceived as their being excited may in fact have been 24 their shouting into a telephone because they weren't sure 25 whether they were being heard and their simply -- their
871 simply not being there to sort of be part of the dynamics 2 of the meeting. 3 So I would have described them as being 4 somewhat more excited, but when I reflect on it, I think 5 there may have been reasons for that. 6 I don't know, and I expect that Mr. Sturdy 7 will be testifying and -- yeah, but that's my sense. 8 Q: All right. Thank you. And just to 9 take you to -- 10 A: The last thing I've indicated, by the 11 way is that the -- 12 Q: Oh, sorry. 13 A: -- next meeting was to be at 9:30 in 14 the morning. 15 Q: All right. Thank you. I just have a 16 few further questions based on your notes and your 17 impressions of that day. 18 You'll note, or you may recall, that your 19 notes indicated Peter Sturdy from MNR have reported that 20 there was no indication that the Stoney Pointers were 21 armed? 22 A: Yes. 23 Q: At this meeting and throughout the 24 meetings that occurred on September 5th and September 25 6th, can you recall any discussion of any evidence that
881 the Stoney Pointers had arms, firearms? 2 A: At either meeting? 3 Q: Yes, at either meeting. 4 A: My recollection, and again, I don't 5 remember whether this is an independent recollection or 6 whether I remember this because I've seen my September 7 6th notes so often, is that I believe Peter Sturdy, on 8 September 6th, reports that gunfire was heard. 9 And maybe he says automatic gunfire was 10 heard from the Park. 11 Q: Okay. And we'll come to that in our 12 review of your September 6th notes. 13 A: Hmm hmm. 14 Q: At any point did you -- 15 A: But in the September 5th meeting, I'm 16 sorry to interrupt -- 17 Q: That's fine. 18 A: In the September 5th meeting, I don't 19 recall their being any suggestion and, in fact, there was 20 quite the contrary. 21 It was explicitly stated that there was no 22 evidence that the occupiers of the Park had firearms with 23 them. 24 I also, though, remember Ron Fox saying 25 that you can't conclude from the fact that there is no
891 evidence that a group of people doesn't have firearms, 2 that, in fact, they don't have firearms. 3 He said that, you know, in this case you 4 had to be aware that the people who were occupying the 5 Park had free access, you know, they could move into the 6 camp and out of it; they could -- they could -- they were 7 going to work and going to school, so that they weren't 8 physically sort of isolating themselves within the Park. 9 And that, as a result, you simply -- I 10 think his point was simply that they -- that even if 11 there weren't -- even if they didn't have firearms with 12 them, they might have access to firearms. 13 And of course, that's not surprising. It 14 certainly didn't surprise me at any rate. Most 15 Aboriginal people consider hunting for food, hunting for 16 sustenance to be an integral part of their distinctive 17 cultures and they continue, many of them, their 18 traditional hunting practices, and those practices are 19 often enshrined in -- the right to continue hunting is 20 often enshrined in treaty and it's often a Section 35 21 protected right. 22 So, it would not be surprising that that 23 group of people would -- would hunt for sustenance as 24 part of their traditional lifestyle and that they would 25 have the equipment necessary to do it.
901 So, there was certainly nothing -- I don't 2 want to leave the impression that -- that it would -- 3 that there was anything improper about -- about these 4 people potentially owning firearms or having access to 5 them; it would be quite understandable. 6 Q: And did that potential -- was it a 7 matter of concern for you at the time? 8 A: What do you mean? 9 Q: Just in terms of assessing the 10 situation and the level of risk attendant on it. 11 A: It certainly made the option, if 12 indeed there was an option, and I -- there wasn't, of 13 ordering the OPP to move quickly to end the occupation, a 14 concern because -- because certainly if there was access 15 to firearms -- there could always be a risk to the 16 safety, a compromise to the safety of police officers and 17 of occupiers of the Camp. 18 You know, if -- if -- if there was a 19 confrontation of any sort, if the police went into the 20 Park to arrest people, certainly the occupiers of the 21 Park had access to ordinary things that could injure, and 22 so did the police, you know. 23 But, ordinary things like sticks and 24 stones. But certainly you had to be aware that -- that - 25 - that people who might have access to firearms perfectly
911 legitimately if they felt threatened, might -- might 2 resort to them and that that could result in -- in, you 3 know, comprising the safety, both of police officers and 4 of the occupiers at the Park. 5 COMMISSIONER SIDNEY LINDEN: I want to 6 take a break. Ms. Hensel, is this a good time? 7 Are you finished with this? Is this -- 8 MS. KATHERINE HENSEL: Yes. Yeah unless 9 you have any -- just to windup on the September 5th 10 meeting, actually there are a few more questions on 11 September 5th. 12 COMMISSIONER SIDNEY LINDEN: Let's ask a 13 few more questions and once we're finished the September 14 5th meeting and then we'll take a break. 15 MS. KATHERINE HENSEL: Just one moment's 16 brief indulgence. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MS. KATHERINE HENSEL: 21 Q: Just a point of clarification. You 22 just used the phrase 'Order the OPP'. Was that something 23 that was discussed at the meeting? 24 Or 'Order the OPP into the Park'; anything 25 like that?
921 A: Yeah. I'm going to go to my notes, 2 at page 4, midway down the page, where Ms. Hutton says: 3 "The Premier is hawkish on this issue. 4 [that] It will set the tone for how we 5 deal with these issues over the next 6 four (4) years." 7 And then goes on to say that: 8 "There's a clear cut issue of Ontario's 9 ownership of the property." 10 And as I said something about: 11 "This maybe the time and place to move 12 decisively." 13 And those comments suggest a belief on the 14 part of Ms. Hutton that somebody other than the police 15 couldn't -- 16 Q: Okay. Could -- 17 A: I'm sorry, suggested to me that Ms. 18 Hutton -- that Ms. Hutton might believe that the decision 19 about -- about moving decisively was one that could be 20 made by somebody other than the OPP. 21 Q: All right. And can you recall any 22 discussion arising as a result of those comments about 23 the OPP and the OPP's discretion? 24 A: As I said -- as I said before, I 25 believe, although it's not recorded in my notes, that
931 there was at least some discussion about the issue of OPP 2 discretion concerning operational matters and the fact 3 that others can't interfere with those decisions. 4 Q: All right. Okay. And while Ms. 5 Hutton was at the meeting, did you understand her to be 6 communicating the Premier's views? 7 A: Yes, I did. 8 Q: And what did you base that 9 understanding on? 10 A: She said she was communicating the 11 Premier's views. When she said that, "the Premier is 12 hawkish on this issue", of course I -- I assumed that she 13 knew that because he had told her so. 14 She also, at one point during the meeting, 15 announced that she was going to telephone the Premier. 16 That she was going to leave the meeting to telephone the 17 Premier. And then she left the room. 18 My -- my recollection is that she made 19 that statement at a point in the meeting where the 20 discussion was -- she was failing to make progress in -- 21 in persuading the attendees at the meeting concerning her 22 view of whatever it was that we were discussing at that 23 time. And so she stood up and she said -- she told us 24 that she was going to phone the Premier. 25 And I remember it because -- well, for two
941 (2) reasons. I just about fell off my chair, 2 figuratively speaking. In the entire time that I have 3 been a civil servant, nobody has ever, when I've been in 4 a meeting or -- or in a discussion with them, announced 5 that they were telephoning the Premier. 6 So, this was quite a surprise to me and 7 it's why I think I remember it independently. Obviously, 8 it's not -- not reflected in my notes. 9 I also had the sense from the point in 10 time in the meeting when she said it, which is as I said, 11 she seemed to be having some difficulty persuading others 12 of her point of view and seemed to me to be a little bit 13 frustrated by that. You know, she stood up and announced 14 that she was -- she was telephoning the Premier. 15 And I remember reacting to that as though 16 -- it felt like a bit of a rebuke to us, or that she was 17 reminding us that, you know, the Premier was interested 18 in this. And I sort of felt that there was something of 19 -- my reaction to it is that there was perhaps something 20 of a rebuke in that. 21 I remember thinking she could simply have 22 excused herself from the meeting and discreetly made a 23 phone call. And so I -- I guess I placed some emphasis 24 on the fact that she -- that she told us what she was 25 doing before she left the room.
951 And of course, I don't know what she did 2 when she left the room. She did return to the room by 3 the way, and did not fill us in on what she had done or 4 with whom she had spoken. 5 Q: All right, and thank you. And I can 6 tell you, Ms. Hipfner, that -- that we do appreciate for 7 the -- the Commissioner's benefit and for the sake of the 8 record and the quality of the evidence in front of them, 9 your precision in identifying what you believed and what 10 you observed as opposed to of course you can't know 11 what's in hearts of mine -- 12 A: Absolutely. 13 Q: -- hearts or minds of anyone else in 14 the room. So, thank you for your precision in that 15 respect. 16 Just one (1) more question on the 17 September 5th meeting. You described earlier of your 18 sense of a shift in the tone of the meeting? 19 A: Yes. 20 Q: Can you describe that and -- and your 21 basis for that perception as well? 22 A: Hmm hmm. 23 Q: Or can you add anything further to 24 your earlier comments? 25 A: My recollection is that after Ms.
961 Hutton made the statement about the Premier being hawkish 2 on this issue, that that marked a change in the tone as I 3 said of what had been to that point a fairly remarkable - 4 - unremarkable meeting. And that after that the focus, 5 as I -- as I recall it of the meeting became Ms. Hutton, 6 and -- and sort of addressing Ms. Hutton's concerns. 7 She has a very forceful way of presenting 8 her ideas and -- and, you know, if I was anywhere but 9 here I might say that it could cut the tension with a 10 knife. It was to me palpable, but I don't know how to -- 11 I don't know how to quantify that or -- or prove it. 12 That was the sense I had was that -- was 13 that there was a lot of tension in the room after that 14 and a lot of focus on Ms. Hutton and -- and her comments 15 and her -- her needs. 16 Q: All right. 17 A: Her expressed needs. 18 Q: And you described the focus on Ms. 19 Hutton. How did you -- what did you perceive that -- 20 that suggested to you that the focus was on Ms. Hutton? 21 A: Simply that people seemed to be 22 directing their comments to her, seemed to be, as I said, 23 responding to the things that she had said or was saying. 24 I don't know that I can put it any more clearly than that 25 for you.
971 Q: All right. And finally you've 2 mentioned that your notes -- your notes are not 3 exhaustive? 4 A: They aren't. And one (1) of the ways 5 in -- in -- in which they -- I know they're not 6 exhaustive or complete is that if you look at my notes 7 you don't see Ms. Hutton actually saying very much in the 8 meeting. And certainly my very clear recollection is 9 that she said somewhat more than what I have recorded in 10 my notes. 11 Q: All right. But your notes were made 12 at the time in the meeting? 13 A: My -- my notes were taken as people 14 were speaking, but certainly sometimes I got caught up in 15 the conversation and failed to take notes and then would 16 -- would pickup some point later in the discussion. 17 Q: All right. Thank you. Those are 18 all my questions with respect to that meeting on 19 September 5th. 20 A: Thank you. 21 Q: So this might be a good time to take 22 a break, Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Ms. Hensel. 25 THE REGISTRAR: This Inquiry will recess
981 for fifteen (15) minutes. 2 3 --- Upon recessing at 10:54 a.m. 4 --- Upon resuming at 11:12 a.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed. Pease be seated. 8 COMMISSIONER SIDNEY LINDEN: Carry on. 9 MS. KATHERINE HENSEL: Good morning. 10 11 CONTINUED BY MS. KATHERINE HENSEL: 12 Q: Now, Ms. Hipfner, you recall that, 13 before the break, we'd finished our discussion of the 14 September 5th committee meeting. 15 Can you recall what you did after that 16 meeting or for the remainder of the day? 17 A: No, I -- I don't recall. 18 Q: All right. And did you undertake 19 any -- any work or activities as the result of the 20 Committee meeting on that particular day? 21 A: I don't recall. 22 Q: All right. Thank you. All right. 23 Turning now to September 6th, 1995 -- 24 A: At which Tab is that? 25 Q: Your -- what we believe to be your
991 handwritten notes is at Tab 17. They're at Tab 17 -- 2 A: Thank you. 3 Q: -- of the book, which is Inquiry 4 Document Number 1011784 Exhibit P-636. 5 Do you recognize the document there? 6 A: I do, they're my handwritten notes of 7 the meeting. 8 Q: Hmm hmm. And were they taken during 9 the meeting? 10 A: They were taken contemporaneously 11 with -- as people spoke, yes. 12 Q: Okay. Now, I'm going to ask you the 13 same question about the September 6th -- 14 A: Hmm hmm. 15 Q: -- meeting that I did about the 16 September 5th meeting. 17 But, perhaps first I should ask you, did 18 you attend -- have any other conversations that you can 19 recall or attend any other meetings prior to the 20 Committee meeting on the morning of September 6th? 21 A: Related to the occupation of the 22 Park? 23 Q: Yes. 24 A: No, I didn't. 25 Q: All right. Okay. And what can you
1001 recall independently, in a general way, about the 2 September 6th meeting, independently of your notes? 3 A: I remember that the meeting was, 4 again, a large meeting attended by most of the people who 5 had attended the previous day. Though, Dave Carson who 6 was the senior Counsel in my branch was also there, as 7 was Tim McCabe, who was a senior Counsel with the 8 Ministry of the Attorney General's Crown Law Office 9 Civil. 10 I also remember that Scott Patrick 11 (phonetic) attended on this occasion. He was an OPP 12 officer who often worked with Inspector Fox. And I 13 remember that the only MPP who had attended the meeting 14 the day before, Dan Newman, did not attend on -- on the 15 6th. 16 So, it was again a large meeting. There 17 were MNR staff hooked in by conference call. What I 18 recall about this meeting or what I -- was that I had a 19 sense of the meeting that there was tension at this 20 meeting from the outset of the meeting. 21 It wasn't something that sort of developed 22 in the way that it had in the meeting of September 5th. 23 I remember sensing tension in the room from the outset. 24 I remember being provided with updates, I 25 think, by Ron Fox and by the MNR staff about the
1011 situation at the Park. 2 Tim McCabe talked a great to us about 3 injunctions. And I remember him saying that, on the 4 whole, he didn't believe that there was a strong case to 5 be made for an ex parte injunction. 6 I remember Ms. Hutton indicating some 7 desire to see the process of obtaining an injunction, if 8 that was what was going to be done, done as quickly as 9 possible. 10 I remember Ms. Hutton once again leaving 11 the room to make a phone call. I believe that she said 12 that she was calling the Premier again, but I think it 13 had less of an effect on me this time, and so may in fact 14 have said that she was calling the office. 15 But, my recollection is that she, once 16 again, said that she was phoning the Premier; that she 17 left the room and that most of the political -- in fact, 18 I think all of the political staff left the room with her 19 and that they were -- they were gone for some period of 20 time. 21 That Ms. Hutton did return, once again, 22 did not report on what she had done or with whom she had 23 spoken. 24 I remember that the decision of the 25 Committee that day was that there was a recommendation
1021 that -- that -- to obtain an injunction. it was to be a 2 normal injunction and not an injunction on an ex parte 3 basis. 4 And I remember a comment that Ms. Hutton 5 made after the meeting had formally ended. 6 Q: And what was that comment? 7 A: What she said after the meeting had 8 formally ended and a lot of people had -- people were 9 picking up their materials and leaving. The room was 10 thinning out and she said to a member of political staff, 11 but within my earshot, and loudly enough that I actually 12 believe the comment had been intended for my benefit 13 rather -- really than for the political staffer's 14 benefit. 15 She said: 16 "This is the most useless meeting I 17 have ever attended. It was a complete 18 waste of my time." 19 And I remember that because it stung. 20 Q: Right. And do you recall who she was 21 speak -- or to whom she was speaking? 22 A: I think it was a woman, but I don't 23 recall who. 24 Q: Okay. And is that -- is that the 25 extent of your independent recollection?
1031 A: That's the extent of my very general 2 independent recollection of the meeting. But once again, 3 if you like -- 4 Q: Hmm hmm. 5 A: -- I could indicate as we go through 6 my notes what I remember independently. 7 Q: All right. Thank you, Ms. Hipfner, 8 if we could begin with our review of your notes. 9 A: Okay. I've indicated that the date 10 is September 6th, 1995. And again that it's an 11 Aboriginal Emergency Committee meeting that began at 9:30 12 a.m. I've crossed out some stuff that's really -- it's 13 irrelevant. 14 The first item on the agenda was entitled, 15 "Media," and Mr. Bangs whose name I finally had learned 16 is recorded as saying that: 17 "The OPP are following an MNR 18 contingency plan. That it includes 19 options -- option of an injunction and 20 it's out in the media." 21 Ms. Hutton says: 22 "It's unfortunate that the press quoted 23 Babbitt who I understand to be an OPP 24 officer as saying no effort was being 25 used. But it was not a direct quote."
1041 Peter Allen says: 2 "I think about the 'negotiate' was 3 used. [Something about police 4 context]. But we shouldn't use the 5 term [he says] we shouldn't use the 6 term "negotiate" at all because it 7 denotes certain things that are not 8 happening and will not happen." 9 Chris and I believe that's Chris Buhagiar 10 says -- it must be, actually he says that he has the TV 11 clips on tape in Dan's office. And Dan would be Dan 12 Newman, the MPP and Parliamentary Assistant to the 13 Minister Responsible for Native Affairs. 14 Q: I'm sorry. Could I just stop you. 15 Sorry, to interrupt. 16 A: Sure. 17 Q: With respect to Mr. Allen's comments, 18 was there any further discussion at that point in the 19 meeting about the concept of negotiation or it's 20 desirability? 21 A: I know that there was discussion 22 about -- about negotiating versus discussing and not 23 negotiating substantive matters. I don't recall whether 24 that -- that discussion -- I don't think it took place at 25 this point.
1051 Q: All right, thank you. 2 A: The second item is entitled "Update." 3 And it says: 4 "a) OPP Ron Fox [so these comments, the 5 following comments are attributable to 6 Ron Fox he says] The Stoney Pointers 7 have appointed an interim spokesperson, 8 Bert Manning, that Mr. Manning is 9 related to Rose Manning [who was the 10 spokesperson for the Stoney Pointers at 11 the Army Base] that there's a meeting 12 between the OPP and the Stoney Pointers 13 scheduled for noon today." 14 It says: 15 "Have made no demands. [And he's 16 referring to the occupiers of the Park 17 that they have made no demands] They 18 have asserted its bare land and they 19 have raised the issue of burial 20 grounds. That the number of people 21 occupying the Park --" 22 Do you mind if I actually fill in the 23 blanks that sort of aren't in my notes? 24 Q: Sure. 25 A: Is that okay?
1061 Q: That would be helpful. 2 A: Thank you. 3 "The number of occupiers were estimated 4 by the police as thirty-five (35) to 5 forty (40). That seven (7) had been 6 cited in one part of the Park but total 7 numbers were never reduced to that 8 level. 9 The OPP has aerial surveillance in 10 place. That Chief and council [and 11 that would be Chief in Council of 12 Kettle and Stony Point First Nation] do 13 not sanction the occupation and that 14 that was reported in the London Free 15 Press." 16 The next point is a little bit disjointed, 17 it says: 18 "Three (3) persons have been identified 19 by the OPP as [and then I -- I've sort 20 of not carried on but I do go on to 21 indicate] mischief arms offense but not 22 firearms. [That they had used a flare 23 apparently] and that warrants for their 24 arrest have been issued." 25 So I certainly understood from that the
1071 charges had been laid against those occupiers in relation 2 to things like mischief and that there were warrants that 3 have been issued. 4 The final point on that page is that: 5 "Army Camp Road [it says] controlled 6 fire set in the middle of the road. 7 Rocks and beer bottles thrown at OPP 8 vehicles. 9 Inspector Fox [at the top of page 2 10 reports that] there's no evidence of 11 firearms and that Inspector Carson says 12 'Use of alcohol quite high.'" 13 Q: Okay. And beyond that comment 14 concerning Inspector Carson, did Mr. -- or Inspector Fox, 15 at the time, indicate where he was receiving the 16 information he imparted? 17 A: I don't recall and I mean I assumed 18 that he had -- he had police contacts at -- at the -- the 19 location of the -- of the occupation, but I don't 20 remember whether he specifically said that. 21 Q: Okay. And with respect to your note 22 that he indicated that -- that the occupiers had raised 23 the issue of burial grounds, in your mind, at the time, 24 did that -- did you believe that to be an explanation for 25 the occupation?
1081 A: I'm not sure whether you mean whether 2 I believed that that was a justification for the 3 occupation or whether that was simply an explanation 4 being offered. 5 Q: All right. 6 A: Which do you mean? 7 Q: I believe the latter. 8 A: That it was an explanation that was 9 being -- yes. 10 Q: For the -- 11 A: I believed -- 12 Q: -- for the occupation -- 13 A: I believed that -- that both of those 14 statements, that there was a burial site in the Park and 15 that the -- that they had asserted it's their land, were 16 -- although bald assertions, completely unsupported by 17 any other information, were at least an initial 18 indication to us by the occupiers at the Park concerning 19 why they had occupied it. 20 So it was -- it was the first -- the first 21 glimpse we had had I guess of any information concerning 22 why they had occupied the Park. 23 Q: Okay. And was there any further 24 discussion during his update about those two (2) issues, 25 the occupiers' assertion that the Park land was their
1091 land and -- 2 A: Hmm hmm. 3 Q: -- their having raised the issue of 4 burial grounds? 5 A: I don't recall. 6 Q: All right. 7 A: The next point that I've recorded at 8 page 2 is Hutton, Deb Hutton, saying: 9 "The Premier is firm that at no time 10 should anybody but OPP/MNR be involved 11 in the discussions despite any offers 12 that might be made by TP's as third 13 parties such as the Chief, et 14 cetera..." 15 And that would have been an example that 16 she provided and I recorded: 17 "...because then you get into 18 negotiations and we don't want that." 19 So you asked if there had been any 20 discussion about -- about negotiations and discussions 21 and what could and couldn't be addressed with the 22 occupiers and this was certainly another -- another 23 example of that. 24 Peter Allen says: 25 "MNR views this as a police issue. MNR
1101 would prefer to take a back seat at 2 this point." 3 And this is certainly consistent although 4 I don't necessarily recall -- independently recall that 5 statement being made, this is consistent with my 6 recollection that -- that there was something of a change 7 in -- in tone on the part of the MNR participants in the 8 meeting that there was sort of more explicitly, at this 9 point, an indication that -- that they -- they felt they 10 were in over their heads a little bit and that this 11 really ought to be clearly seen and addressed as a 12 policing matter and that represented something of a -- of 13 a change from the meeting the day before. 14 Ron Fox then says: 15 "The occupiers were notified. They're 16 well informed that they're not welcome. 17 Will be formally reiterated at today's 18 meeting and will be served, will be 19 asked to leave." 20 He says: 21 "From the response [and that -- I -- I 22 gather he means the response of the 23 occupiers when they meet later today 24 and are asked to leave] we hope to 25 determine what their demands are. The
1111 media have not been told about the 2 meeting." 3 Then Tim, and this refers to Tim McCabe 4 who is counsel from Crown Law Office Civil, inquires 5 whether we have any of the names of the occupiers and Ron 6 Fox -- this is a checkmark, just says, "yes," that we 7 have a list of persons known to be there. 8 Tim asks: 9 "Is Chief Bressette willing to provide 10 an affidavit and do we want him to?" 11 Ms. Hutton says: 12 "We would like him to be supporting our 13 efforts, but independently." 14 And then Peter Sturdy and again -- 15 Q: Just -- just -- 16 A: I'm sorry. 17 Q: Just to stop you there -- 18 A: Yes. 19 Q: I'm sorry to interrupt, was there any 20 further discussion about the issue of Chief Bressette's 21 support or -- 22 A: I don't -- 23 Q: -- an explanation? 24 A: I don't recall. 25 Q: Okay. Thank you. Please continue.
1121 A: Peter Sturdy says: 2 "There's heavy equipment work being 3 done in the Park, that we'll get more 4 information with aerial surveillance; 5 that Park buildings have been broken 6 into and are being used; that MNR staff 7 are being peppered with calls from 8 locals." 9 And that would be local residents and that 10 they -- he -- I've indicated that: 11 "They were expressing concern, fear, 12 anger. [He says] There's a groundswell 13 of anxiety and concern [and then he 14 reports that] somebody heard automatic 15 gunfire, [and Ms. Hutton says] can we 16 confirm that?" 17 And I've noted at the top of page 3 that 18 Inspector Fox was going to make that enquiry. 19 We then go on to discuss the direction 20 from the ministers and Jeff Bangs, assistant to the 21 Minister of Natural Resources says -- here I think "M" 22 means Minister. 23 "Went to the Minister with the plan 24 developed at the table. He spoke to 25 eight (8) to ten (10) media outlets.
1131 The way things are escalating the 2 Minister doesn't want to carry this, 3 especially with the threat to nearby 4 lands. 5 The Municipality is upset because the 6 situation has not been contained to the 7 Military Base. 8 Next point is: 9 "Gunfire damage to Park property." 10 I don't know what he's referring to there. 11 He then asks: 12 "Are they digging -- are they digging 13 trenches? This is quickly spiralling 14 out of MNR's hands." 15 Then somebody, I'm not sure who - it may 16 be Jeff Bangs continuing or it may be somebody who I just 17 -- I didn't catch. 18 "There's also a question of what the 19 Minister can say if the OPP are 20 handling this, and especially now that 21 changes have been laid -- charges have 22 been laid." 23 Dave Moran says: 24 "Well we can't have the OPP speak on 25 behalf of the Government. [that]
1141 Harnick, the Attorney General is clear, 2 if the AG is being asked to seek an 3 injunction, he will do so as soon as 4 possible." 5 And then he adds: 6 "With respect to public carriage of the 7 issue, we are open to direction from 8 the centre." 9 And the centre was, I think, not a term 10 that was generally employed before the Conservative 11 Government came to power, but came to be used to mean the 12 Premier's office. 13 Q: And did you understand that at the 14 time? 15 A: Yeah, I think we'd already started 16 using that term. 17 Q: All right. 18 A: Yes. 19 Q: Okay. And just a quick question with 20 respect to -- did Mr. Sturdy indicate -- you'd listed a 21 number of things that he'd conveyed. Did he indicate 22 where he was getting his information? 23 A: I don't recall. 24 Q: All right. All right. And you'd 25 already indicated that Mr. Bangs did not indicate where
1151 he got his information; is that correct? 2 A: No, he didn't. 3 Q: He didn't indicate? 4 A: No. 5 Q: Thank you. 6 A: Although he did say that he went to 7 the Minister with the plan developed at the table, so I 8 would have understood that he had had some discussion 9 with his minister. 10 Q: All right. 11 A: The next line down says, "Hunt" and 12 that would be Katherine Hunt who was a -- I think she was 13 the executive assistant to the Solicitor General -- 14 Q: Hmm hmm. 15 A: -- who may also have the correctional 16 services portfolio at the time. And she says, 17 "Runciman," who's the Minister: 18 "Runciman's reservation comes from the 19 fact that Sol Gen's protocol is not to 20 be involved in the day to day operation 21 of the police; that the political arm 22 should be divorced." 23 I understood her to mean from the 24 operations of the police. 25 "Dave Moran says there's a huge concern
1161 about safety of the officers." 2 And then says: 3 "Enquires of Tim McCabe about the 4 injunction process." 5 Q: Okay. And was there any other 6 discussion that day that you can recall about the -- the 7 safety of the officers and the role that that would play 8 in the deliberations of the Committee? 9 A: At one point during the meeting, and 10 this is not recorded in my notes, and I am told that it's 11 not recorded in anybody's notes and my recollection is 12 that it occurred at a point in the meeting when the 13 discussion was very heated. 14 I talked about the situation at Oka, which 15 at that point was only about five (5) years old. And 16 although I'm not particularly knowledgeable about the 17 situation at Oka, I had sometime earlier read a critique 18 of the operations at Oka which had suggested that the 19 police operations at Oka had been directed, at least in 20 part, by civil servants and bureaucrats in Quebec City 21 and that -- and that that may have contributed to the 22 tragic death of Corporal Lemay. 23 And so I -- I made the point that surely 24 we had learned the lessons of Oka and that -- and that 25 quite apart from the impropriety of purporting to direct
1171 police operations, that is non police officers purporting 2 to direct police operations if it could be done. 3 And I was saying it couldn't, that it's a 4 very bad idea. Simply because non police officers don't 5 understand police operations and don't know the situation 6 on the ground. So I do remember that concern being 7 expressed about the safety of police officers. So my 8 concerns would also have extended to the occupiers at the 9 Park. 10 Q: All right. Thank you. And can you 11 recall when in the meeting in terms of the sequence that 12 that might have occurred? 13 A: I've made no record of it. It was 14 well into the meeting is about all I can say. 15 Q: All right. Thank you. Just to 16 continue, I believe you've noted Mr. Moran. 17 A: Yes. Then Julie, and that's Julie 18 Jai who was the Chair of the Committee, reports that she: 19 "Met with the Deputy Attorney General 20 and the Attorney General this a.m. 21 [this morning]. [that] The direction 22 from the Attorney General was to apply 23 for civil injunction as soon as 24 possible. [that] Public safety is 25 paramount including the safety of OPP
1181 officers." 2 So, there again is a -- another instance 3 where the safety of police officers was -- was explicitly 4 mentioned as an issue. And Julie says: 5 "Criminal Code charges are up to police 6 discretion. Ron Fox says, here to 7 provide general direction." 8 And I -- he is referring, I believe, to 9 the Committee. 10 "Here to provide general direction, but 11 not to direct how instructions to 12 police are operationalized." 13 And I would say this had, although it's 14 not -- you can't read this into the notes. This had 15 become a fairly -- this was getting heated -- this part 16 of the discussion was getting heated, is my recollection. 17 Q: Okay. And did you base that on -- on 18 Mr. Fox's tone or demeanor or everyone that was 19 participating in the conversation at that point? 20 A: Mr. Fox's demeanor or Inspector Fox's 21 demeanor, certainly my own state of mind, played a part 22 in this. But what I recall was that this -- this was the 23 -- the issue that caused the meeting to be a very 24 difficult meeting that day. 25 Q: All right. Thank you.
1191 A: I also recall -- and one of the 2 reasons that I believe this issue was, at least, touched 3 upon and -- and discussed briefly the day before, is that 4 I felt a certain frustration about returning to the same 5 issue again today. 6 I thought we'd made our point clear on 7 that the day before. And I remember experiencing a 8 certain frustration and a sense that we were revisiting 9 an issue that I had believed was -- was closed and 10 understood. 11 Peter Allen says -- this is at the top of 12 page 4, Peter Allen says: 13 "One of the things that this Committee 14 has done successfully in the past is to 15 keep issues local. It's important that 16 a spokesperson is local. And before 17 news releases go out, this Committee 18 has vetted them in the past [he's 19 saying] to ensure consistency across 20 the peace." 21 I've then got J. J. is Julie Jai, says 22 something about a subcommittee. I haven't recorded that. 23 And Ms. Hutton says: 24 "The Premier's office wants to be seen 25 as having control and moving
1201 expeditiously. As a matter of 2 principle generally agree. But in this 3 situation not [that should be averse] 4 to having this be seen as a political 5 issue." 6 Now, I believe that that remark is in 7 response to Peter Allen talking about keeping the 8 situation local, letting people handle it on the ground 9 locally. 10 And that -- what I understood her to be 11 suggesting was that no, the Premier would have been 12 pleased to be seen as having control of this situation 13 rather than it being -- it being something that is left 14 to be handled by local police or MNR. 15 Q: Okay. And in your experience at the 16 time, was that -- had you had any experiences up to that 17 point where the Premier's office would take that role? 18 A: No, that would be highly unusual. 19 Generally, when -- when -- in fact I can say I've never 20 encountered that; it surprised me. That comes up again 21 later. 22 We advise -- generally ministers are 23 advised to stay clear of -- of any situation involving 24 the police. It is a police operation, the police will 25 exercise discretion about how they handle it.
1211 And generally, politicians maintain their 2 distance for the reason that I had talked about earlier, 3 that there cannot be and should not be seen to be any 4 interference, political or otherwise, with the 5 operational decisions that are taken by police. 6 So this is a surprising comment, though I 7 was surprised -- more surprised later by -- by a return 8 to this issue. 9 Julie, who I think was trying manfully to 10 control the meeting at this point, says: 11 "The goals are to get an injunction as 12 soon as possible and secondly the 13 removal of the occupiers as soon as 14 possible, but that has to be left to 15 the police." 16 Tim McCabe then says that: 17 "The Attorney General is seeking an 18 injunction as soon as possible: 19 And he says: 20 "This is not a case for an ex parte 21 injunction unless strong -- unless 22 there are strong facts re: public 23 safety." 24 And I have noted his explanation because 25 as I said I didn't know an awful lot about injunctions at
1221 the time, that an ex parte injunction is one by which the 2 applicant proceeds without notice to the other party. 3 So, Tim says -- I don't know whether he's 4 saying this is a case -- I -- I think he is. This is a - 5 - that: 6 "A case where notice to be served. 7 Seek leave for the Court to abridge the 8 three (3) day notice period." 9 So he was suggesting that you can -- you 10 can speed up a normal injunction by seeking to have the 11 notice period abridged. He then says that -- that he'll 12 check about the availability of a judge in Sarnia and he 13 -- he indicates that Elizabeth is checking this issue. 14 Dave Moran says, "Toronto," meaning would 15 -- would the application be heard in -- in Toronto and 16 Tim says: 17 "Well, the rules are unclear, but you - 18 - you usually apply where the event is, 19 that a judge in Sarnia may be more 20 readily available and no doubt they're 21 already thinking about this." 22 He says: 23 "The other variable is putting together 24 our material." [He says] We have to 25 prove that it's a provincial park. We
1231 have to prove that they're provincial 2 lands. There is no challenge, at any 3 rate, that we were aware of to the 4 validity of the surrender, no frailty 5 to title. All we have [he says] is a 6 bald assertion of title." 7 He then says -- Affite is an affidavit: 8 "An affidavit will talk about the 9 incidents we can substantiate, but we 10 must also set out the title history 11 because that will be impressive to a 12 judge." 13 At the top of page 5 Tim is continuing. 14 He refers to Leith who is -- Leith Hunter who is counsel 15 at the Ministry of Natural -- the Legal Services Branch 16 at the Ministry of Natural Resources and he says: 17 "Leith has been working on an affidavit 18 since yesterday. And Tim's estimate 19 was that the best case scenario, [and 20 he meant for getting before the judge] 21 would be Friday of that week." 22 Ms. Hutton says: 23 "The Premier's view is that the longer 24 the occupiers are there the greater the 25 opportunity they have to garner support
1241 and arm themselves." 2 So Tim says: 3 "Well, in that case that suggests a 4 Criminal Code approach." 5 Ron Fox says: 6 "There are short-term solutions and 7 longer term ones. [He says] The Stoney 8 Pointers are asserting colour of right. 9 This makes it different from someone 10 trespassing in a..." 11 And I don't know what he said, a bar, a 12 park something. He says: 13 "It's a closed provincial park; there's 14 dispute as to ownership. [He says] 15 They can voluntarily leave, but it may 16 not occur." 17 He's talking about the Stoney Pointers. 18 He says: 19 "If hands have to be dirtied, it's not 20 in anyone's interest to respond to a 21 trespass. Mischief is not treason. If 22 there's a dispute over ownership, put 23 forward evidence as to ownership and it 24 makes the issue go away for the long 25 term."
1251 He then mentions Section 501.1 of the 2 Criminal Code which is an undertaking by officer in 3 charge. He says: 4 "We need a long-term solution. Have to 5 balance considerations Premier is 6 saying. Right now imprudent to rush 7 in. In terms of timing, views of the 8 Stoney Pointers may change as a result 9 of pressures from within their own 10 community. To me we need considered 11 action. Not simply an issue of the 12 comfort level of the police, but the 13 best long-term solution." 14 I've then recorded Inspector Fox again 15 suggesting to me that there may have been some other 16 discussion after -- after I finished recording his 17 previous remarks where he says something about a message 18 at number 1: 19 "AG instructed to obtain injunction and 20 number 2 [I haven't caught something]. 21 "Dave Moran asks, does the OPP intend 22 to serve warrants? [And Inspector Fox 23 says] Yes, but [and then something 24 about] but the timing is up to the OPP. 25 [And he says] There are ongoing efforts
1261 [we're at the top of page 6 now], there 2 are ongoing efforts to get people to 3 leave the Park but we would ultimately 4 like to have an adjoining order." 5 Kathryn Hunt says: 6 "If we remove them, there's no 7 guarantee they won't move right back 8 in." 9 And Scott Hutchison, who I forgot to 10 mention had also joined the meeting that day, he'd not 11 been there on the 5th, says: 12 "We can impose conditions but 13 enforcement issues remain." 14 Peter Sturdy says: 15 "There are rumours of gunfire, [that] 16 they've been confirmed. [he says] I've 17 got staff there right now accompanying 18 the OPP to serve notice and they're 19 being asked to wear bullet proof vests 20 and [that] Park picnic tables are piled 21 on the road as barricades." 22 There seems again to have been some 23 discussion that I have not captured based on the double 24 lines before -- the two (2) skipped lines before I record 25 Julie's next comment --
1271 Q: And can you -- 2 A: Again she's -- 3 Q: Oh, I 'm sorry. Can you recall any 4 further discussion in response to Mr. Sturdy's remarks? 5 A: What I recall is that my distinct 6 impression, based on what had occurred at the September 7 5th meeting, that certainly my own sense was that Mr. 8 Sturdy's sources of information were proving not to be 9 particularly reliable, and -- and I don't think anybody 10 really reacted. 11 I don't recall anybody really reacting to 12 what are actually fairly alarming statements. And 13 certainly my own sense was that -- was that on September 14 5th some of the reports that Peter Sturdy had -- had 15 conveyed to the group had proven to be unfounded, once 16 Inspector Fox checked with his own sources and came back 17 and they were never quite -- quite as serious as Mr. 18 Sturdy had suggested. 19 So, you know, we have, again, this 20 situation where Mr. Sturdy is saying things that might be 21 alarming and -- and the Committee wasn't sort of overly 22 reacting to those. 23 I think maybe some of them shared my sense 24 that, you know, until Inspector Fox checked it out, we 25 wouldn't sort of put too much -- too much faith in it
1281 and -- 2 Q: Did -- did anyone make comments to 3 that effect or did you observe anything that -- 4 A: No, it was interesting. Just -- 5 nobody really reacted to what I think would normally have 6 been considered to be fairly alarming remarks except that 7 Inspector Fox did, again, on the 6th, at some point, 8 leave the meeting to confirm the rumours and I think 9 again reported back a somewhat different version of 10 events. 11 Q: And we'll come to that later in your 12 notes. 13 A: Yes. We will. 14 Q: Thank you. Just to continue with -- 15 you've noted Ms. Jai's remarks? 16 A: Yes, Julie is trying to organize the 17 group here and summarising where she believes we're at 18 and she says the first thing is that we'll get an 19 injunction as soon as possible; that the goal is to get 20 the occupiers out of the Park. 21 And summarizing, because this had been a 22 huge issue at this meeting, that the: 23 "Police are to exercise discretion with 24 respect to laying charges." 25 Mentions again, summarizes that, you know,
1291 as we understood it: 2 "An application for an injunction would 3 be heard Friday at the earliest." 4 Then Tim McCabe reports: 5 "They..." 6 And I think he means the Stoney Pointers: 7 "...will seek an adjournment of the 8 motion for an interlocutory 9 injunction." 10 I'm hoping this will make sense to the 11 litigators in the room. 12 "If they do, we will argue for an 13 interim interlocutory injunction." 14 He -- he explains that the Sheriff 15 enforces the Order, asks the OPP for assistance to do so, 16 but that there is police discretion as to how that 17 assistance will be provided. 18 He indicates that if there is a refusal to 19 move, meaning that if the Stoney Pointers refuse to move 20 out of the Park, then these people are in contempt and we 21 go back to Court. 22 Q: Okay. So just to stop you briefly. 23 At the time, your comments suggested, with respect to the 24 -- your note of -- regarding the interlocutory 25 injunction.
1301 A: Uh huh. 2 Q: Did you understand -- 3 A: No. 4 Q: -- what that -- were you able to 5 follow in general the -- the nature of his -- his advice 6 or briefing. 7 A: Oh yes, absolutely. But when you get 8 into things like interim -- interlocutory injunctions, I 9 -- I need to have it explained to me every time. And 10 that wasn't any less true ten (10) years ago. 11 Q: Okay. And did he provide any further 12 explanation at that point? 13 A: I don't recall. 14 Q: Okay. Thank you. 15 A: Dave and I expect that this is -- oh, 16 yes, this is Dave Carson. After the meeting on September 17 the 5th, Julie had asked Dave to research -- because 18 there was some speculation that -- that the occupation of 19 the Park might be explained in some measure by the -- by 20 the -- an assertion that there was a burial site located 21 there. Asked Dave to research burial sites. And -- and 22 what happens with them when they're -- when they're 23 found. 24 So we have Dave, at this point, on page 6, 25 reporting back on the research that he conducted the day
1311 before. And he says that: 2 "There are provincial obligations 3 concerning an alleged burial site. [he 4 says that] The discovery of human 5 remains does not detract in any way 6 from Ontario's title to land." 7 He talks -- he mentions the Heritage Act 8 and then says something about: 9 "Especially the Cemeteries Act." 10 He says: 11 "There's a requirement to immediately 12 notify police or the coroner." 13 I guess that they're -- upon the discovery 14 of human remains. Mentions the Registrar of cemeteries 15 and indicates that there's certain practices he [being 16 the Registrar] follows under the Act. That he 17 investigates the origins of the site. That he can in 18 appropriate cases, declare the site to be an unapproved 19 cemetery or an unapproved Aboriginal peoples cemetery for 20 -- and then he named one other category that I didn't 21 catch. So there were three (3) options and -- and I 22 didn't catch the last of the three (3). 23 At the top of page 7, Dave goes on to say 24 that: 25 "If the Registrar made that declaration
1321 notice would be given to the local Band 2 Council and arrangements made for the 3 disposition of the remains." 4 And I've indicated that the arrangements 5 that would be made for the disposition of the remains 6 would be negotiated. And my understanding was that the 7 Ministry of Natural Resources as the owner of the land 8 would be involved in any such negotiations. 9 Chris Buhagiar says that: 10 "A critical issue will be defusing 11 tensions." 12 And you can see that I don't know how to 13 spell "defusing." I've tried it out a couple of ways. 14 "That the local MPP, Marcel Beaubien, 15 can't do that." 16 Can't defuse the tensions. And that's 17 something I recall independently as well is that -- is 18 that Mr. Beaubien's efforts were -- were not resulting in 19 a -- in a sort of calming down of the situation locally. 20 And that's what Chris is referring to. 21 Q: Okay. And just to be clear. Was 22 that expressed at the meeting or is that information that 23 you'd come by elsewhere about -- concerning Mr. Beaubien? 24 A: Well I think it's discussed by Chris 25 in the sense of indicating that Mr. Beaubien is not the
1331 person to defuse tensions locally. But I think -- my 2 recollection is that between the two (2) meetings, there 3 had been reports to us of -- of some of Mr. Beaubien's 4 efforts I think to -- to deal with the situation locally 5 and that we're not proving to be especially successful. 6 Q: Okay. Do you recall who made those 7 reports to you? 8 A: I don't remember. 9 Q: All right. Thank you. 10 A: But I know I was aware of it by the 11 time of the second -- of the meeting on September 6th. I 12 just don't remember where it came from. 13 Q: Thank you. 14 A: Then Chris says: 15 "The Mayor reign of terror doesn't help 16 situation." 17 And I believe that that refers to an 18 article that had appeared in one of the local newspapers 19 where the Mayor, perhaps of Bosanquet, I'm not sure, had 20 described the occupation of the Park as a reign of 21 terror. 22 And Chris says: 23 "We have to find someone who can defuse 24 the tensions." 25 Ms. Hutton says:
1341 "My difficulty is in not wanting to 2 give political direction to the OPP." 3 Peter Sturdy says: 4 "What will be televised at noon is a 5 scene of Natives coming toward a media 6 van with baseball bats. And OPP draw 7 guns." 8 I don't know what he was talking about 9 there. 10 Q: Was there any further discussion in 11 response -- sorry, I'll let you continue actually. 12 A: Jeff Bangs says: 13 "The MNR may withdraw its staff from 14 the area. Not have them participate 15 any longer." 16 Then there's a summarizing of -- of 17 messages. I expect that this was Julie who was leading 18 this. And the messages were -- this -- this was going to 19 be recommended public messaging for the ministers. 20 And so the ministers would be saying, you 21 know, that the Government is seeking an injunction as 22 soon as possible. That we have asked the OPP to remove 23 the trespassers and that public safety is paramount. 24 Then Tim McCabe remarks: 25 "But a judge may feel he's being asked
1351 to do something that the police haven't 2 acted on." 3 He says: 4 "This could conceivably colour things. 5 It shouldn't be significant or have an 6 impact, but judges can be funny." 7 MR. PETER ROSENTHAL: The judge just 8 laughed at that. 9 COMMISSIONER SIDNEY LINDEN: Very 10 amusing. 11 THE WITNESS: Dave Moran says: 12 "Hodgson [Minister Hodgson] will 13 continue to take the lead as property 14 owner." 15 Meaning that he will have a very specific 16 function within the public and that is to -- to address 17 matters as -- as owner of the Park. 18 Peter Allen says: 19 "But he won't touch issues around an 20 injunction." 21 Ms. Hutton says: 22 "The Premier will take the lead." 23 And then in parenthesis you'll see that I 24 have written -- there's a question mark and an 25 exclamation mark, which is that they're in the nature of
1361 an editorial comment of my own. 2 3 CONTINUED BY MS. KATHERINE HENSEL: 4 Q: All right. And what does it signify? 5 A: Well we talked about that earlier. 6 You know, the idea that in a -- in a situation involving 7 -- in a policing issue that a minister of the Crown would 8 want to appear to be taking the lead in this. 9 It was a very, very surprising comment for 10 Ms. Hutton to make. And I was both surprised by it and 11 very sceptical that it was true. And this -- this 12 comment interested me as well, because throughout both of 13 the meetings, Ms. Hutton had been referring to, you know, 14 the Premier wants this, the Premier says this, you know, 15 very confidently conveying to us messages apparently from 16 the Premier. 17 And what I recall about this is -- and it 18 actually shows up in the next line, she says -- she sort 19 of hesitates having said that the Premier will take the 20 lead. What I remem -- and I remember this very clearly. 21 Is that she sort of hesitated and she 22 said, well this -- you know, will have to take this to 23 Cabinet. And then she qualifies it and she says, but -- 24 but I suspect the Premier will be pleased to take the 25 lead.
1371 And it was at this point that Ms. Hutton 2 decided that she actually needed to make a phone call 3 and -- 4 Q: It was your belief that she decided 5 or -- or -- 6 A: I'm sorry. This is the point at 7 which Ms. Hutton told the group that she was going to 8 contact the Premier. Now what I will say about this is 9 while it is my belief that she specified the Premier, it 10 was less of -- the second time something like that 11 happens, it's less of a surprise than the first time. 12 And so I -- I will admit that there is 13 some possibility that I could be incorrect there and that 14 she may have said call the office or call the Premier's 15 office. But certainly I -- my belief is that she said 16 the "Premier." She may have said the office or whatever. 17 And she again left the room and, as I said 18 earlier, all of the political staff, as far as I can 19 recall, left with her and -- and did not return to the 20 room for some number of minutes. 21 And when they returned, again, Ms. Hutton 22 did not report on what she had done or with whom she had 23 spoken. And I remember this. I remember her returning 24 to the room specifically because I was dying to know 25 whether the Premier had agreed or his staff had agreed
1381 that the Premier would, in fact, take the lead on this. 2 And so I'm very clear about her leaving 3 the room and making a call in relation to this because I 4 was surprised and I was just dying to know the answer. 5 And she -- when she came back to the meeting of course 6 she did not report out on what had happened. 7 She simply -- we simply wrapped up the 8 meeting at the point where Ms. Hutton and -- and I 9 believe other political staff returned to the room. 10 Jeff Bangs reports that -- yes, at the top 11 of page 8, that the municipalities lawyers are actively 12 preparing an injunction. I actually don't remember that 13 at all. He says: 14 "On the tender issue the municipality 15 has disqualified the Native tender 16 meeting. [The tender he had described 17 earlier from Kettle and Stoney Point 18 First Nation. He said--] Based on the 19 opinion from a lawyer ['L" is a lawyer] 20 that the tender was not a complete 21 tender." 22 He says: 23 "There are issues around charging of 24 provincial sales tax." 25 And concerns around the ability, I guess,
1391 of the Kettle and Stony Point contender for the job, to 2 carry out the work. And he goes on to say that the First 3 Nation had, this is below -- well then what happens is 4 that Scott Hutchison advises that -- that there shouldn't 5 be comment made on criminal charges and -- and then I've 6 recorded Jeffrey Bangs, as I said, indicating that 7 they're -- that: 8 "The First Nation had representation at 9 Council meeting last night where the 10 decision was made to disqualify the 11 tender." 12 So they had been at the municipal council 13 meeting where the decision was made. 14 Q: All right. I'm sorry to -- you 15 looked like you were going to say something. 16 A: That's all, no that's all. 17 Q: All right. I have a -- unless you 18 have anything further to add on your notes I have a few 19 other questions concerning that meeting. 20 A: I can't think of anything else that I 21 have to add. 22 Q: All right, thank you. Based on the 23 discussion that you heard concerning the issue of 24 negotiations, did you come to any understanding or belief 25 about whether the Committee had reached a consensus
1401 concerning the issue of negotiations with the people 2 occupying the Park? 3 A: Well, it's interesting. I mean, 4 there was certainly discussion that I recall about the 5 fact that any discussions that took place in a situation 6 like this couldn't be about substantive matters 7 underlying the -- the occupation and since we didn't know 8 what those substantive matters were, it wouldn't have 9 been about that. 10 I think the thing that I recall is that 11 people talked about discussions versus negotiations and 12 not substantive, you know. 13 But I certainly left the meeting feeling 14 very unclear about what would have been permissible at 15 that point and what would not have been permissible. 16 So, you know, I think there was a failure 17 on the part of the people who were addressing these 18 issues, perhaps, to define the terms clearly enough; that 19 we understood how one distinguished discussions from 20 negotiations and negotiations about non-substantive 21 matters from negotiations about substantive matters. 22 There was also, and I don't -- I don't 23 know if there was a -- I can't remember how much 24 discussion there was about this at the Committee. 25 But of course, the group of people who
1411 were occupying the Park were members of Kettle and Stony 2 Point First Nation but they were -- I mean they were 3 variously referred to as dissidents or -- or -- it was 4 clear that they were not a group of people who had any 5 authority to bind the community. 6 Aboriginal interests in land are communal 7 in nature and as a result, assertions about entitlement 8 to land -- and I don't think there's any dispute about 9 this within the, sort of, among land claim practitioners 10 that assertions of interests in land must be asserted by 11 the -- the legitimate representatives of the community. 12 And that's usually, in fact always, I 13 think, the Chief and Council because they have the 14 ability both to represent the community; to negotiate on 15 behalf of the community and to enter into binding -- 16 binding agreements and settlements concerning the 17 disposition of those lands. 18 So, I think one of the difficulties that 19 the Committee faced, and I don't remember that there was 20 -- I don't remember how much of a discussion there was 21 about this point, was that the group of people who had 22 occupied the Park were perhaps not, in any event, a group 23 of people that -- with whom we could have held 24 substantive discussions, even if we understood what their 25 -- what their assertions were about.
1421 But, at this -- at this point, that was 2 premature. You know, on September the 5th we had no 3 information about why they had occupied the Park and on 4 September the 6th all we had were -- were two (2) 5 statements that -- that -- without any -- without any 6 further elaboration, no information concerning what -- 7 what under -- underpinned -- I was going to say underlay 8 but I don't know whether it's underlie or underlay, so I 9 will say underpinned. 10 Q: I'm sorry, I can't help you. 11 A: You can't help me? 12 Q: No. 13 A: The -- those assertions. So I would 14 say, I think there was, at least among some of us, some 15 sensitivity to the issue that -- that this might be a 16 difficult -- it might be difficult to have any kinds of 17 negotiations anyway, because this may not be a group of 18 people with whom we could do that, even if we knew what 19 they wanted. 20 Q: And I'd asked you about the previous 21 day, about the level of concern about the MNR 22 representatives -- 23 A: Hmm hmm. 24 Q: And the other participants in the 25 Committee meeting. What was your perception in that
1431 respect, for the September 6th meeting? 2 A: Again that the MNR staff, the ones 3 who were -- had participated in the meeting by conference 4 call were generally more excited, you know, by -- their 5 demeanour suggested that they were more excited about -- 6 more deeply concerned about the occupation of the Park 7 than perhaps other people attending the meeting. 8 But, once again I'm going to, you know, 9 reiterate what I said, which is that it's so difficult 10 both to know with any clarity what it is that people are 11 reacting to when you can't see them and for them to, you 12 know, read the dynamics of a group when they're not there 13 and -- and can't participate directly. 14 Q: All right. At this point My Friend 15 has also reminded me that I should make -- actually 16 they've already been entered as an exhibit, Exhibit P- 17 636, so please disregard my -- my comment. 18 And did you come away personally from the 19 meeting with an understanding or a -- a belief about what 20 the occupiers -- what it would take for the occupiers to 21 leave the Park? 22 A: Oh, no, none. 23 Q: All right. 24 A: No. 25 Q: Okay. All right. Just one (1)
1441 moment's brief indulgence? 2 3 (BRIEF PAUSE) 4 5 Q: All right. That's the end of my 6 questions concerning that meeting. So, Commissioner, 7 this might be an appropriate time to take a break, to 8 take a lunch break. 9 COMMISSIONER SIDNEY LINDEN: We'll take a 10 lunch break now. 11 THE REGISTRAR: This Inquiry stands 12 adjourned until 1:20 p.m. 13 14 --- Upon adjourning at 12:05 p.m. 15 --- Upon resuming at 1:22 p.m. 16 17 THE REGISTRAR: This Inquiry is now 18 resumed. Please be seated. 19 COMMISSIONER SIDNEY LINDEN: Carry on. 20 MS. KATHERINE HENSEL: Good afternoon, 21 Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Good 23 afternoon. 24 MS. KATHERINE HENSEL: Good afternoon, 25 Ms. Hipfner.
1451 2 CONTINUED BY MS. KATHERINE HENSEL: 3 Q: I wanted to begin this afternoon, Ms. 4 Hipfner, with just one (1) more question with respect to 5 the September 6th committee meeting that we were 6 discussing before the lunch break. And as well as the 7 September 5th meeting the day before. 8 At any point in either of those meetings 9 did you hear Hutton or anyone else saying that the 10 Premier wanted the Committee or anyone to: 11 "Get those fucking Indians out of the 12 Park and use guns if [they] have to?" 13 A: No, I didn't. 14 Q: Okay. Did you hear words to that 15 effect? 16 A: No, I didn't. 17 Q: So, what did you on leaving the 18 Committee meeting on September 6th? 19 A: I returned to my office and some 20 short time later, a few minutes later, Inspector Fox and 21 Scott Patrick dropped into my office on their way out and 22 we had a brief discussion. I don't recall the detail. 23 But, I remember one (1) thing that Ron Fox 24 said to me; stayed in my mind. And that is that -- he 25 said the police have a saying that in situations
1461 involving, you know, occupations or -- or hostage 2 takings, he said you just -- you don't stop talking. You 3 talk until you're talking to a skeleton if necessary. 4 And it was graphic, but it drove home to 5 me, certainly, the point that -- that you don't exhaust 6 the -- the -- the opportunity to talk and you persist, 7 you hope, until you've got a resolution of the problem or 8 there's nobody left to talk to. 9 Q: And what else can you recall after - 10 - I'm sorry, Inspector Fox and Mr. Patrick left your 11 office after that? 12 A: Yes, they did. 13 Q: Did you know where they were going? 14 A: No, I didn't. 15 Q: Okay. And what happened next? 16 A: At some point Dave Carson who had 17 attended the meeting on the 6th and I had lunch with the 18 two (2) lawyers in our office who had not attended the 19 Interministerial Committee Meetings and with Leslie 20 Kohsed-Currie who was a senior employee at the Native 21 Affairs Secretariat. 22 And I remember that we went out to have 23 Chinese food for lunch. I remember that we discussed, to 24 some extent, what had happened at the two (2) meetings, 25 but I remember none of the details of our discussion.
1471 Q: All right. And when you say, 2 "discussed" was Mr. Carson also participating in the 3 conversation? 4 A: I don't remember any of the details 5 of the discussion. 6 Q: All right. 7 A: Yeah. 8 Q: Okay. All right. And as for the 9 remainder of the day, September 6th, can you recall what 10 you did? 11 A: Returned to work but I don't have any 12 -- any current recollection of what -- what I did. 13 Q: All right. And turning now to 14 September 7th when did you first learn about the events 15 of the evening of September 6th at Ipperwash Provincial 16 Park? 17 A: My house was being renovated at the 18 time and I was sleeping on a mattress in my dining room. 19 And I remember being awakened by the six o'clock CBC news 20 and hearing the report. What I remember now, is I -- I 21 thought that they were reporting that three (3) people 22 had been shot and perhaps killed at Ipperwash Provincial 23 Park and I didn't -- I don't think I listened to much... 24 Q: It's all right. Okay. And what 25 happened next or what did you do next?
1481 A: Threw on my clothes and was in the 2 office I'm sure within the hour. And wasn't surprised to 3 discover that in fact there were a great many ONAS staff 4 already there, people who had woken up to the same news 5 that morning and had done I think exactly what I did 6 which was just throw on some clothes and -- and get 7 there. 8 Q: All right. And did you have any 9 conversations with your -- your colleagues? 10 A: I'm sure I did, but I don't recall. 11 Q: Okay. 12 A: It was -- I think most of us were in 13 shock. 14 Q: Okay. And what did you do next at 15 the office that morning, that you -- the next thing you 16 can recall? 17 A: The next thing that I recall was that 18 a meeting of the Interministerial Committee was held. I 19 think at the time that we had planned to hold it the day 20 before. But it was attended by far fewer people this 21 time. There were no political staff in attendance. 22 There were just civil servants. What I 23 remember without referring to my notes is that -- is that 24 we were provided with some information about what had 25 happened the night before.
1491 I remember that Ron Vrancart and Larry 2 Taman and Peter Allen dropped into the meeting at some 3 point well after it had -- it had begun. 4 I remember that they told us that the 5 Committee had been restructured and that there would no 6 longer be political staff represented on that Committee, 7 that they had instead formed something that they called a 8 'nerve centre' what would be housed at the Ministry of 9 the Solicitor General, that the nerve centre would 10 consist of political staff and deputies and that the 11 deputies would act as the liaison between this new nerve 12 centre and -- and I guess this rump that was left of the 13 Interministerial Committee. 14 They assured us that there was still an 15 important role for the Committee but that we would not be 16 encountering -- there would not be, as I said, this 17 intermingling of political with civil servants. And they 18 actually had a number of tasks that they wanted us to 19 tackle in order to feed information up to this so called 20 nerve centre. 21 And I think I was certainly busy to be -- 22 grateful to be kept busy that day. So when -- when the 23 meeting broke, we were divided into groups, pulled in 24 additional staff from the Native Affairs Secretariat and 25 got to work on a number of exercises.
1501 Q: Okay. And if I can turn you to Tab 2 20 of the Book of Documents in front of you. That's 3 Inquiry Document Number 1011849. 4 Do you recognize that document? 5 A: I do. These are notes that I took of 6 the Interministerial Committee meeting on the 7th of 7 September 1995. 8 Q: And did you make them 9 contemporaneously? 10 A: Yes, I did. 11 Q: Perhaps, if we could enter that 12 document as the next exhibit? 13 THE REGISTRAR: 716. P-716, Your Honour. 14 15 --- EXHIBIT NO. P-716: Document Number 1011849 16 Eileen Hipfner's Handwritten 17 notes re. IMC meeting, Sept 18 07/'95. 19 20 CONTINUED BY MS. KATHERINE HENSEL: 21 Q: Now I don't intend to take you 22 through your notes with the same detail as -- as we 23 covered with respect to your notes from September 5th and 24 6th. I just have a few particular questions. 25 The first -- on the first page at the very
1511 top, there's a notation, appears to be "Letter Retrieve 2 It". and then two (2) exclamation points. 3 Can you recall what that was in reference 4 to? 5 A: At some point during the meeting I 6 remembered that there was a letter that I had drafted 7 that needed to be retrieved and made a note of it so that 8 I would remember to do that after the meeting. I don't 9 think it had anything to do with the Interministerial 10 Committee meeting. 11 Q: All right. And I do note on the 12 first page of your notes what appears to be a reference 13 to Julie Jai; is that correct? 14 A: Yes. 15 Q: Okay. And she provides an update 16 with respect to the events of the evening before; is that 17 correct? 18 A: Yes. 19 Q: Okay. 20 A: Well she -- she talks about the 21 establishment of this, as they called it, command post or 22 nerve centre at the Ministry of the Solicitor General 23 consisting of the political staff and deputies. 24 She explained to the Committee members 25 that Tim McCabe was currently before a judge in Sarnia
1521 seeking an ex parte injunction. And then she provided 2 information from a police report setting out their 3 version of what had occurred the evening before. 4 Q: Okay. And was that first that you 5 learned that -- that the Province had proceeded by way of 6 an ex parte application for an injunction? 7 A: I don't remember what time this 8 meeting was held. In all likelihood I knew that earlier 9 in the day. 10 Q: But, not until September 7th? 11 A: No, not until September 7th. 12 Q: Okay. And did Julie or anyone else - 13 - or Ms. Jai or anyone else at the meeting, provide any 14 explanation for the contemplated lack of contact between 15 political staff and civil servants in the new arrangement 16 that you have described? 17 A: No, she didn't. 18 Q: Okay. And did anyone else? 19 A: Without referring to my notes, I 20 can't remember. I don't -- I can't remember whether 21 Larry Taman and Ron Vrancart provided some explanation, 22 but actually I don't think anybody did. 23 Q: Okay. Do you want to just take a 24 moment to -- to refresh your memory and -- 25 A: Sure.
1531 Q: -- have a look through your notes? 2 3 (BRIEF PAUSE) 4 5 A: I don't see anything that looks to me 6 like an explanation or what I would have understood as a 7 clear explanation for the reason why this decision had 8 been taken, as opposed to a description as to how things 9 would be from now on. 10 Q: All right. Okay, and then if I can 11 also refer you to page 4 of your notes. 12 13 (BRIEF PAUSE) 14 15 16 Q: There appears to be a description 17 there of comments made by Larry Taman? 18 A: Hmm hmm. I'm sorry, do you want me 19 to read them? 20 Q: Perhaps, if you could just comment or 21 summarise, unless you prefer to read them, on the 22 information that he imparted or the instructions. 23 A: I think I'd just actually feel more 24 comfortable quickly going through them. 25 He said that:
1541 "When somebody met this morning against 2 the background of last night's events, 3 that he [Larry], suggested that we had 4 to try to accomplish a couple of 5 things. 6 First, acc. [is accurate] information 7 flowing in and out of government. 8 There had to be consistent messaging in 9 and out of government [well I guess out 10 of government] and clear decision- 11 making authority." 12 So, he talked about the nerve centre 13 consisting of himself and Ron Vrancart; Elaine Todres, 14 who was the deputy Solicitor General; Minister's staff 15 and Premier's office. 16 He said that Solicitor General would be 17 the spokesperson concerning events on the ground at 18 Ipperwash, that it would be framed, I think he's saying, 19 as an ongoing law enforcement matter and that the OPP 20 would be handling it. 21 He said that the nerve centre needed to be 22 supported by police and by the Blockade Committee and 23 that the appropriate role of the Blockade Committee is in 24 connection with advice to be provided from time to time 25 with respect to this and other matters.
1551 For instance, he said, preparedness for 2 this and other incidents. He said that the Committee 3 would function on a standby basis; it would provide 4 information and advice on request, I guess, of the nerve 5 centre. 6 And it had been agreed that it's -- it's a 7 group of public servants; that the deputies will -- 8 deputies will manage the political staff, is what he 9 said. 10 Q: Okay. And can you recall anything 11 else with respect to Mr. Taman -- what Mr. Taman said 12 that day? 13 A: You know, I remember less about the 14 information he imparted than the sense I had that the 15 primary reason that Mr. Vrancart and Mr. Taman had come 16 that day was to -- to be a source of reassurance, 17 actually, to this -- this very small group of civil 18 servants people, who had been shattered by the -- the 19 news that morning of what had occurred the night before. 20 So, I think they were there -- and that's 21 what I remember about the meeting that they were -- I 22 recall they're primarily to be a -- a source of comfort. 23 Q: All right. And did you take that 24 from their manner or did -- 25 A: Yes.
1561 Q: -- indicate that? 2 A: No, I don't -- I think they were a 3 little more nuanced than that. 4 Q: Okay. And is there anything else 5 that -- that you can, having reviewed your notes, that 6 you can specifically recall with respect to that meeting 7 that was of significance? 8 A: No, as I said, the only thing that I 9 recall is that -- is that -- is that there was a list of 10 things that the nerve centre was going to need and the 11 first task of this newly formulated Blockade Committee 12 was to -- was to prepare those materials. 13 Q: All right. And if I could take you 14 to Tab 1 of the book of documents in front of you, you'll 15 find there a list of work groups. It's an undated sheet 16 of paper and it's Inquiry Document Number 1003524. 17 And do you recognize that document, first 18 of all? 19 A: Yes, I do. 20 Q: Okay. And -- 21 A: This described the groups that were 22 established at that September 7th meeting of the 23 Interministerial Committee. It simply represents how we 24 split up into groups, where we met, and what issue, in 25 Julie's handwriting, what issue each of the groups was
1571 responsible for preparing materials about. 2 Q: Okay. 3 A: And what I see from this is that we 4 pulled in some other staff from ONAS, as I said, who -- 5 who hadn't actually been part of the Interministerial 6 Committee. 7 Q: And I note that you are listed there 8 as in -- being in Julie's group? 9 A: Yes. 10 Q: And her notes appear to incident 11 preparedness, strategy, including potential hot spots -- 12 A: Hmm hmm. 13 Q: -- as -- well, you've indicated that 14 these -- these are notes of tasks to be completed by each 15 group? 16 A: That's right. 17 Q: All right. So, did you meet with -- 18 with Julie's group, what's termed her Julie's group, 19 immediately on leaving this committee meeting? 20 A: I believe we did, yes. 21 Q: All right. And what did you do as a 22 result or what can you tell us about that meeting? 23 A: I remember where it was located, 24 which boardroom. I remember that it was a small group of 25 us. I -- we were addressing, as I recall, what had been
1581 described as potential hot spots and we were asked to 2 identify the communities, the locations, the events at 3 which -- at which there could be some kind of response to 4 the -- the shooting at Ipperwash that -- that might be 5 difficult for the Government. 6 Q: Okay. And did you also work on a 7 prepared -- preparedness strategy? 8 A: That's interesting. I don't remember 9 working on a preparedness strategy. I remember working 10 on this hot spots document. 11 Q: Okay. And if I could take you to Tab 12 23 of the document in -- or the book of documents in 13 front of you; that is Inquiry Document Number 1011845, 14 Exhibit P-659. 15 First of all do you recognize that 16 document? 17 A: No. 18 Q: Okay. And I'll just give you a 19 moment to quickly flip through, there are several pages. 20 Can you identify any documents here that you had a hand 21 in preparing or -- or recognize? 22 A: The -- these don't -- the pages don't 23 seem to be numbered. 24 Q: And for the record, by the way the -- 25 the title page to this document begins with, Material for
1591 E. Todres -- or Elaine Todres, Larry Taman, and Ron 2 Vrancart, and it's dated September 7th, 1995 and it's 3 apparently authored by the Interministerial Group. 4 A: And if you flip to the fifth page 5 what you'll see is a document entitled, Potential hot 6 spots; it's stamped, "Confidential." 7 And there's some text on that page and on 8 the following page. And then there is a chart also 9 entitled, Potential Hot spots. 10 Q: And that's on the seventh page of the 11 -- the document? 12 A: Yes, that -- that runs for the next-- 13 Q: Hmm hmm. 14 A: -- three (3) pages. And those five 15 (5) pages are the product that was produced by Julie's 16 group that afternoon. 17 Q: Okay. And where did the information 18 contained on those pages come from? 19 A: I think to a great extent it came 20 from our personal knowledge of -- of communities and 21 events and negotiations and areas within the Province 22 where -- I -- I mean it wasn't scientific and -- and in 23 some -- I think I approached this task thinking that it 24 was a little bit unreliable. 25 But, nevertheless it was anecdotal and --
1601 and based on our experience and our sense of where things 2 might erupt if anything was going to erupt. 3 Q: Okay. And well, the title is -- the 4 title of those pages is certainly suggested -- 5 suggestive; Potential Hot Spots. 6 Can you tell us anything more about the 7 threshold for inclusion in this document? 8 A: Intuition. 9 Q: Intuition? 10 A: Intuition, knowledge of -- of the 11 situation on the ground in various communities or 12 anticipated events, gatherings of -- of one (1) sort or 13 another. It was a highly unscientific exercise. 14 Q: And what was the purpose of these 15 documents? 16 A: I think it was to alert -- not alert 17 but really to educate the -- the nerve centre about the 18 locations in the Province where -- where if there was 19 likely to be difficulty there might be difficulty. 20 I had enormous personal difficulty with 21 this exercise. 22 Q: And why is that? 23 A: I simply didn't think any of it was 24 sort of -- was verifiable or -- or, yeah. 25
1611 (BRIEF PAUSE) 2 3 Q: Okay. And so what else did you do? 4 In addition to meeting with Julie's -- what's been termed 5 Julie's working group -- 6 A: Hmm hmm. 7 Q: On September 7th, what other 8 activities did you undertake? 9 A: I don't remember. 10 Q: Okay. Do you recall having a 11 telephone conversation -- 12 A: Oh, yes I do. I had been asked by 13 Julie Jai or by Dave Carson to contact the Courthouse in 14 Sarnia where Tim McCabe and Elizabeth Christie were 15 applying for an injunction and to find out what the 16 result was. 17 And, as I recall, I called the Courthouse, 18 left a message, and Tim subsequently returned my call. 19 So I spoke with him sometime shortly after he had made 20 the application and had got the result. 21 Q: Okay. And if I can turn you to tab - 22 - Tab 19 of the book in front of you, that's Inquiry 23 Document Number 1011843. I... 24 25 (BRIEF PAUSE)
1621 Q: 1011843, thank you, just for the 2 record. 3 4 (BRIEF PAUSE) 5 6 Q: Do you recognize that document? 7 A: I do, these were notes I took of my 8 telephone discussion with Tim McCabe on September the 9 7th. 10 Q: Okay. And did you make them 11 contemporaneously? 12 A: I did. 13 Q: Okay. You'd -- 14 A: Oh. 15 Q: -- indicated that you did? 16 A: I did. 17 Q: Okay, thank you. Sorry, I didn't 18 hear you. 19 Okay. And you've had a chance to review 20 these notes? 21 A: Yes, I have had. 22 Q: Okay. Can you tell us what you can 23 recall about your conversation with Tim McCabe either 24 independently or based -- after having refreshed your 25 memory with your notes.
1631 A: Can I refresh my memory? 2 Q: Sure. 3 A: Thank you. 4 Q: Thank you. 5 6 (BRIEF PAUSE) 7 8 A: Well, I mean, very generally, Tim was 9 reporting that he had applied for an ex parte injunction; 10 that the Judge had been very concerned about -- about the 11 timing of the application for the injunction, I mean, 12 whether, essentially, the Courts were being asked to do 13 what the police ought to do but hadn't yet. 14 He was very concerned, the Judge was, 15 about the events of the previous evening. I remember Tim 16 telling me that the Judge had -- had lectured the police 17 officer, I think Officer Wright, who had provided 18 evidence in support of the application and -- and I 19 remember that Tim was very concerned about the 20 application or the injunction that he had actually been 21 granted; that it was quite unusual in a number of 22 respects. 23 That he had the -- the Judge had agreed to 24 issue the injunction but that it wasn't enforceable; that 25 notice was to be dropped from a helicopter and posted on
1641 the gates of the Park so that the occupiers of the Park 2 would be informed that there was a Court date, I think, 3 the following Monday. 4 So, Tim had the injunction, he had 5 instructions to provide notice to the occupiers of the 6 Park but the injunction itself couldn't be enforced until 7 all of the parties had appeared before the Judge in 8 Sarnia. 9 So Tim was very concerned, primarily about 10 this requirement to drop notices out of a helicopter. 11 This was a significant concern for all of us. 12 Q: Right, I'm sorry. By "all of us," 13 who do you mean? 14 A: Well, all of us -- the lawyers who 15 were dealing with this. Leith, the lawyers at the legal 16 branch at ONAS. 17 Q: And "Leith" is Leith Hunter? 18 A: Leith Hunter, yes, at the legal 19 branch of the Ministry of Natural Resources. Tim and 20 Elizabeth were both very concerned. 21 It didn't seem to be a very practical 22 condition and it also seemed to be somewhat dangerous. 23 There was concern about flying a helicopter over a Park 24 that was being occupied by people who would be 25 understandably nervous about a helicopter flying over.
1651 And then, of course, when something was 2 dumped out the window at them, they -- they could be come 3 very nervous and very understandably. There was also a 4 concern that piles of papers -- velocity that they would 5 become very heavy obviously as they were gaining speed 6 and -- and heading toward the ground. 7 And it could actually also injure the 8 occupiers or one of the occupiers of the Park if this 9 notice landed on top of them. So it -- it was really we 10 were quite incredulous actually about the nature of the 11 condition. And enough that Tim didn't feel he could -- 12 he could let it stand. 13 So, he told me, I don't know that it's 14 recorded in the notes, but certainly at some point he 15 told me that on the way back to Toronto they were going 16 to stop in at London and see about having the -- the 17 order varied. 18 Q: And is that the extent of your 19 recollections of the conversation you had with Mr. McCabe 20 at that point? 21 A: At the moment, yes. 22 Q: And what did you do with the 23 information that he'd given to you? 24 A: I don't have any specific 25 recollection but I undoubtedly would have relayed it back
1661 to Dave Carson who was the senior counsel in our office 2 and Julie and probably Yan Lazor. 3 Q: Okay. 4 A: Or Julie would have directed it to 5 Yan Lazor. 6 Q: And did you do anything else with 7 respect to the injunction or your conversation with Mr. 8 McCabe that day? 9 A: Not that I recall. 10 Q: Okay. And also if I could take you 11 to Tab 21. I'm sorry, if I could enter the previous 12 document at Tab 19, Inquiry Document 1011843 as the next 13 exhibit? 14 THE REGISTRAR: Inquiry Document 1011843 15 as the next exhibit? 16 17 (BRIEF PAUSE) 18 19 MS. KATHERINE HENSEL: It was 843. 10 -- 20 it's Tab 19 and it's 1011843. 21 THE REGISTRAR: P-717, Your Honour. 22 COMMISSIONER SIDNEY LINDEN: 717? 23 There's a couple of other documents you referred to. I'm 24 not sure if you want to make them exhibits or not. One 25 of them was the document at Tab 1 which was unlisted.
1671 MS. KATHERINE HENSEL: Okay. 2 COMMISSIONER SIDNEY LINDEN: Do you want 3 to make those exhibits? 4 MS. KATHERINE HENSEL: Yeah we might as - 5 - might as well at this point. That was Inquiry Document 6 Number 1003524 which was an undated list of work groups. 7 COMMISSIONER SIDNEY LINDEN: The other 8 one was at Tab 23. 9 MS. KATHERINE HENSEL: The document at 10 Tab 23 My Friend advises me was -- 11 COMMISSIONER SIDNEY LINDEN: Is already 12 an exhibit? 13 MS. KATHERINE HENSEL: -- already an 14 exhibit. Yes. 15 COMMISSIONER SIDNEY LINDEN: So this 16 exhibit that we just looked at is now 717. 17 THE REGISTRAR: 717 and the one that is 18 Document Number 1003524 is 718. 19 20 --- EXHIBIT NO. P-717: Document Number 1011843. 21 Eileen Hipfner's Handwritten 22 notes, Sept 07/'95. 23 24 --- EXHIBIT NO. P-718: Document Number 1003524. 25 Work groups - With
1681 Handwritten 2 notations(updated). 3 4 COMMISSIONER SIDNEY LINDEN: 718. And 5 we're up to Tab 21 now? 6 MS. KATHERINE HENSEL: Yes. 7 8 CONTINUED BY MS. KATHERINE HENSEL: 9 Q: Which appears to be an e-mail from 10 Ms. Hunter to you; is that correct? 11 A: Yes. 12 Q: Do you recognize that e-mail? 13 A: I do. 14 Q: It's dated September 7th, 1995 and 15 it's Inquiry Document 1003773. It's already been entered 16 as an exhibit P-662. And can you tell us what's in that 17 document? 18 A: Leith had a copy, I guess, of the 19 actual endorsement and it was somewhat difficult to read 20 so she had transcribed it and then sent along a copy of 21 the -- of her transcription of the document so that we 22 would have a copy of the text of it. 23 Q: Okay. And what did you do with her 24 e-mail once it arrived? 25 A: I don't remember.
1691 Q: Okay. Is there anything else on 2 September 7th that -- that you can recall? First of all, 3 we understand from other witnesses there was a meeting of 4 the nerve centre later that day. 5 A: I don't know that I was aware of it. 6 Q: Okay. And so you didn't attend that 7 -- that meeting? 8 A: No, no. 9 Q: All right. Is there anything else on 10 September 7th that you can recall that's of significance? 11 A: No. It was -- it was a very 12 difficult day. I think -- I think, you know, my 13 colleagues -- I certainly was experiencing some shock 14 myself and I -- I sensed that my colleagues were as well. 15 It was a just a very very difficult day. 16 Q: All right. And from September 7th 17 onward, did you note any changes beyond the establishment 18 of the nerve centre and how the situation at Ipperwash 19 was dealt with by -- by your department or ONAS? Or 20 within government? 21 A: After -- after September the 7th and 22 after, you know, a brief flurry of activity where, you 23 know, a number of people were brought in to -- to, you 24 know, prepare background information for the nerve 25 centre.
1701 I would say that the -- the environment at 2 the Native Affairs Secretariat changed significantly, 3 that I think an environment almost of secrecy grew at the 4 Native Affairs Secretariat certainly around anything 5 relating to Ipperwash. 6 I think, for instance, that the only 7 reason I remember the lunch that I had with my colleagues 8 on the 6th of September is because it was so -- because 9 after the 7th of September nobody felt that they could 10 talk about Ipperwash. It was suddenly not something 11 within the normal range of experience. I think we were 12 all aware that -- that -- well, we were all aware. 13 I was certainly aware. I certainly sensed 14 that my colleagues were aware of the potential for, you 15 know, Coroner's inquests and public inquiries and civil 16 actions and answer to the sense that -- that the 17 information that we had whatever it contributed to the 18 whole piece had to be carefully guarded. 19 I mean we're subject to obligations of 20 confidentiality, but the thing that struck me is that it 21 wasn't simply a case of not being able to talk about the 22 events of that time with members of the public, we never 23 even talked to one another about it. 24 Q: And that was because of what you 25 termed before as -- as...
1711 A: A culture really of -- of secrecy 2 and -- 3 Q: Hmm hmm. 4 A: -- I think many of us felt that we -- 5 that we possessed some information that although in 6 itself may not be significant contributed something to a 7 larger piece. 8 And I think you also have to remember that 9 we didn't know what had happened, that you know the 10 people sitting in this room today have -- have a much 11 greater knowledge of -- of what actually happened, you 12 know, why it was that Mr. George was killed and -- and 13 what role anybody had to play in that. We didn't -- we 14 were in the dark and so it was -- it was I think very, 15 very difficult for many of us. 16 I think it was very difficult -- I don't 17 know how Julie managed in the early days, but when she 18 left in February of 1996 to move to Whitehorse and I 19 inherited all of her work what I recall about really -- 20 what I recall about the first year after the shooting was 21 -- was how isolated those of us who continued to deal 22 with this matter felt as we performed our jobs. There 23 was nobody that you could talk to about it. 24 You know we were -- we were caught up in - 25 - in -- as I said this climate of secrecy. We were
1721 performing -- I think that's what I would say about it. 2 I found it a -- a tremendously isolating experience, very 3 stressful and -- and it's even hard to talk about now. 4 Q: And we are very grateful that -- that 5 you're willing to -- to assist the Commission by speaking 6 about that time. 7 Okay. If -- if I could take you to -- 8 actually I -- I have another question about -- on 9 September 12th we understand from previous witnesses that 10 new information was forwarded to the province by the 11 Federal Government with respect to potential evidence of 12 a burial site? 13 A: Yes. 14 Q: Were you aware that that information 15 had been forwarded? 16 A: Was conveyed to the province? 17 Q: Yes. 18 A: Yes. What staff in the Department of 19 Indian Affairs had uncovered was a letter written, I 20 think, in 1937 before the Park was actually established 21 as a provincial park -- 22 Q: Hmm hmm. 23 A: -- indicating that -- that the local 24 -- the -- the First Nation believed or -- or knew that 25 there was a burial site located within the Park and I
1731 think it was the Minister of Indian Affairs of the day 2 who asked the Minister of Natural Resources, though that 3 wasn't his title at the time, whether he would be willing 4 to fence off and -- and protect the -- the burial site. 5 Q: And how did you come to be aware of 6 that letter if you could -- 7 A: The staff at the Department of Indian 8 Affairs forwarded it to us. I think it was a day or so 9 before the Federal Minister of Indian Affairs made a 10 public announcement concerning the letter and -- and 11 delivered it to the First Nation. 12 Q: Okay. And did you have any 13 conversations yourself with members of the Federal 14 Department of Indian Affairs? 15 A: No, I didn't. 16 Q: All right. And did you play any -- 17 any role in your capacity as counsel in dealing with that 18 information as it came -- came to the province? 19 A: I just don't recall. 20 Q: Okay. If I could take you to Tab 25 21 of the book of documents in front of you. What you'll 22 find there is an e-mail from you, apparently, to Ms. Jai 23 dated September 13th, 1995 which is Inquiry document 24 number 1003369. 25 First of all, do you recognize that
1741 document? 2 A: No. I don't doubt that I drafted it, 3 but I don't remember it. 4 Q: And do you recognize the handwriting 5 on the document? 6 A: That's Julie Jai's handwriting. 7 Q: All right, okay. And I'm just going 8 to give you a brief moment to have a look at it -- 9 A: Hmm hmm. 10 Q: -- and then ask you a few questions. 11 12 (BRIEF PAUSE) 13 14 A: Okay. There's a lot here, but. 15 16 (BRIEF PAUSE) 17 18 Q: In general, can you comment on what 19 the purpose of your e-mail to Ms. Jai was? 20 A: I have no recollection of this, but 21 it appears that Julie was going to be delivering a 22 voicemail update to members of the Interministerial 23 Committee and this was a first draft of -- of the text of 24 the message. 25 Q: Okay. And so you had drafted that
1751 for -- for Ms. Jai's assistance? 2 A: Yes, though I don't recall doing so. 3 Q: All right. If we could enter that as 4 the next exhibit? 5 THE REGISTRAR: P-719, Your Honour. 6 7 --- EXHIBIT NO. P-719: Document Number 1003369. 8 E-mail from E. Hipfner to J. 9 Jai with handwritten notes 10 and voicemail update by J. 11 Jai to ministerial contacts. 12 13 CONTINUED BY KATHERINE HENSEL: 14 Q: And did this represent information 15 that you had on September 13th, 1995? 16 A: I drafted it so I would have had that 17 information, yes. 18 Q: Okay. And do you know where you 19 would have obtained that information? 20 A: No, I don't. 21 Q: All right, thank you. 22 A: Well, some of it. I mean, the point 23 number 1 concerns the status of the injunction and of 24 course, I obtained that information directly from Tim on 25 September the 7th.
1761 And subsequently, of course, the -- the 2 appearance in London to have the conditions of the 3 injunction varied. 4 Q: And I apologize if you've already 5 answered this question or -- 6 A: Okay. 7 Q: -- provided this information, but 8 were you aware or are you aware of who the voicemail 9 update was provided to by Ms. Jai? 10 A: No, I'm not, apart from generally 11 understanding that it was going to members of the 12 Emergency Committee so it would have been civil servants. 13 Q: All right. Okay. And from September 14 8th onwards, can you describe your role, this is prior to 15 February of 1996, describe your role in relation to the 16 province's handling of the situation at Ipperwash? 17 A: Hmm hmm. I assisted Julie. 18 Essentially Julie was, as I think I've said, after 19 September 7th, when I talk about, sort of, a culture or 20 an environment of secrecy developing at the Native 21 Affairs Secretariat, one of the results was that 22 information became restricted to a very small group of 23 people. 24 And so primarily that group of people that 25 the people who had -- who dealt with Ipperwash issues
1771 were Julie and then Yan Lazor who was the acting 2 secretary. 3 I assisted Julie at her instigation, 4 rarely knowing, I think, what was going to happen with 5 whatever it was that I was producing or researching, so I 6 -- I assisted Julie but without always understanding the 7 context of what it was that I was doing. 8 Q: Okay. And -- 9 A: And it occupied a significant portion 10 of my work load at that time. 11 Q: All right. What -- what proportion, 12 if you could estimate? 13 A: I couldn't estimate, I don't know. 14 Q: But it continued to occupy a great 15 deal of your time? For -- for how long would you say? 16 A: Well, until Julie left and then in 17 February of 1996, when Julie left, it was almost 100 18 percent of my work load. 19 At the time, the Provincial Government had 20 asked us not to proceed with the land claims that we were 21 negotiating because it was wanting to review the basis on 22 -- on which we were negotiating claims and develop its 23 own policy, which is understandable about -- about how 24 the province would approach the settlement of land 25 claims.
1781 And my recollection is that -- that we 2 were not actively involved in negotiating land claims for 3 probably the first year or possibly a little bit longer 4 after the Conservatives came to power. 5 And that ordinarily while working almost 6 full-time on -- on Ipperwash would have been a difficult 7 thing to do given my -- my land claim negotiating 8 workload, because we weren't actively doing those right 9 then it was onerous, but I was able to devote most of my 10 time -- had to devote most of my time to addressing 11 Ipperwash matters. 12 So, after Julie left I would say it was 13 probably close to 100 percent of my workload all day 14 every day. 15 Q: All right. And how long did that 16 situation continue for? 17 A: What I remember is that that kind of 18 intensive involvement in addressing Ipperwash matters 19 lasted for something over a year after the events of 20 September 1995. 21 Q: All right. Just a brief moment's 22 indulgence, Commissioner? 23 24 (BRIEF PAUSE) 25
1791 Q: And can you describe just after 2 February of 1996 you'd mentioned that it took almost 100 3 percent of your time to deal with the Ipperwash matter, 4 can you describe in general -- general terms what you 5 were doing? 6 A: Yes, I should say that -- that even 7 normal reporting relationships were -- were altered in 8 relationship to Ipperwash. After Julie left David 9 Carson, who had been the senior counsel in our branch 10 became the legal director. 11 And I remember at that period of time 12 having almost no contact with Dave because there -- I 13 didn't report to him on Ipperwash. This is part of this 14 -- this issue, the -- the thing that I told you about, 15 about all the information being located in as -- as few 16 persons as possible. 17 So, I reported directly to Yan Lazor who 18 was the secretary and -- and that was my connection with 19 the world for a large period of time after -- after 1996. 20 And so what I was involved in doing -- 21 what had happened -- I'm actually going to -- I -- I 22 don't think I'm breaching any solicitor/client privilege 23 in describing what my duties were, but I think I'd just 24 like to check that. 25 Okay. My counsel says no.
1801 What had happened was that the -- Larry 2 Taman, the Deputy Minister, had decided that there would 3 be, sort of, a one (1) window approach within the 4 Ministry of the Attorney General to addressing matters 5 having to do with Ipperwash. I think I'm going to -- is 6 my counsel still okay with this? 7 COMMISSIONER SIDNEY LINDEN: Well, do you 8 want to take a short break -- 9 THE WITNESS: Yeah. 10 COMMISSIONER SIDNEY LINDEN: -- and 11 consult or confer? I think that's -- 12 MS. KIM TWOHIG: That might be useful. 13 THE WITNESS: Yeah. Just a brief 14 adjournment. Thank you. 15 COMMISSIONER SIDNEY LINDEN: Let's take a 16 brief adjournment to give you an opportunity to consult 17 with your counsel. 18 THE REGISTRAR: This Inquiry will recess. 19 20 --- Upon recessing at 2:05 p.m. 21 --- Upon resuming at 2:13 p.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed. Please be seated. 25
1811 CONTINUED BY MS. KATHERINE HENSEL: 2 Q: Thank you, Mr. Commissioner. I would 3 ask the Witness to just disregard my last question. 4 A: Thank you. 5 Q: Okay. Now, we have provided the 6 Witness who have testified to-date with an opportunity to 7 make any suggestions to the -- to the Commissioner in 8 terms of recommendations with respect to the situation in 9 1995 and Ipperwash. 10 I understand from you that you don't have 11 any recommendations or suggestions to make? 12 A: No, I don't. 13 Q: All right. 14 A: Thank you, though. 15 Q: Thank you, Mrs. Hipfner -- or Ms. 16 Hipfner, those are all my questions. 17 A: Thank you. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much. 20 MS. KATHERINE HENSEL: And perhaps this 21 might be a good idea or a good time to -- Mr. Roy 22 actually would like to -- to raise a point. 23 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 24 Roy? 25 MR. JULIAN ROY: I'm getting a little
1821 curious about this -- this sort of vague assertion of 2 privilege that's -- that's been alluded to a couple of 3 times by both the Witness and by counsel for the Witness. 4 And I don't mean this as any criticism of the Witness. 5 But normally when privilege is asserted in 6 the proceedings such as this, all parties are put in a 7 position where we have some understanding of what it is 8 that privilege is asserted over. 9 Is it conversations with somebody? Is it 10 more documents? Is it -- what is the subject matter of 11 the privilege? Is everything after February '96, is that 12 something that privilege is being claimed over? What is 13 the extent of waiver given all the documentary production 14 in this matter? 15 COMMISSIONER SIDNEY LINDEN: May I 16 suggest that -- 17 MR. JULIAN ROY: I'm unclear about all 18 these things and I think the parties deserve some clarity 19 about that. And I think Ms. Twohig should -- should give 20 us some advice on that, in my respectful submission. 21 It's just a suggestion. 22 And I think it ought to be -- this is a 23 good stage to do it because we're all going to go home 24 and prepare for our -- our examinations and -- and we 25 need to be informed -- we need to approach that on an
1831 informed basis. 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 Thank you, Mr. Roy. 4 MS. KIM TWOHIG: I would be pleased to 5 address that, Mr. Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Well, I 7 think you better use that mic because it works better. 8 Thanks, 9 Ms. Twohig. 10 MS. KIM TWOHIG: I want to use the one 11 that I can be heard with. 12 Solicitor/client privilege has been waived 13 as it was in the civil litigation with respect to the 14 Interministerial Committee meetings of September 5th and 15 6th and any documents that were discussed at those 16 meetings or that really formed part of the meetings such 17 as the brief memo about potential criminal and civil 18 remedies to deal with the occupation. Apart from that, 19 solicitor/client privilege has not been waived. 20 And that really means that the lawyers who 21 are called to give evidence would not be expected to 22 relate to the legal advice that they gave outside the 23 Interministerial Committee meeting. And I -- I think 24 everyone seems to have appreciated that and that the 25 questions have been appropriate in terms of what I
1841 thought was a common understanding among counsel. 2 But, I hope that's helpful. In terms of 3 the -- the document that was referred to today, there -- 4 there are a couple of issues that Commission counsel and 5 I thought we might be able to address later, but perhaps 6 we could address the matter now. 7 There's one -- I'll just get the list. 8 Exhibit P-712 on the List of Documents 9 that was distributed by Commission counsel refers to 10 confidential meeting notes of Interministerial Officials 11 Committee. And on the list we've been given there is a 12 note in square brackets it says, "Duplicate" and there's 13 another number. And it indicates that the document had 14 been redacted. 15 In fact it was redacted for 16 solicitor/client privilege and I think the understanding 17 was that the redacted version would be made an exhibit. 18 So, I think with the consent of -- or the agreement of 19 Commission counsel, that will be substituted. 20 COMMISSIONER SIDNEY LINDEN: Fine. 21 MS. KIM TWOHIG: The other two (2) 22 documents for which an exhibit number has been reserved 23 are legal opinions that were provided by Ms. Hipfner. 24 And unfortunately although we certainly had adequate 25 notice from Commission counsel and from the OPP that
1851 these -- these documents were going to be put to the 2 Witness or that were available to be made as -- as 3 evidence it did not actually come to my attention or to 4 the attention of other members on my team until last 5 night for reasons that I won't bother going into. 6 But, I do apologize for the inconvenience 7 that has resulted from that and to My Friends for raising 8 this at such a late hour. 9 But, the problem there was, I think, that 10 the documents were produced by the OPP. The -- the 11 opinion was prepared by Ms. Hipfner for the special 12 advisor, to the Deputy Solicitor General and it's our 13 position that there must have been an inadvertent 14 disclosure. And given the many many documents and the 15 different people whose role it was to review them, it's 16 entirely understandable that these things happen. 17 And it may be also that there was a lack 18 of clarity around the process for seeking permission to 19 waive privilege or whatever. So, I will have to seek 20 additional instructions, as I understand that some 21 counsel would like to refer to the -- to the legal memo, 22 and feel that they can now proceed with their cross- 23 examination unless they are certain of whether there's 24 privilege or not. 25 So, what we propose to do is that I will
1861 seek instructions again about that document, in the next 2 day or so, I hope, and if we find that we need to argue 3 the issue of inadvertent waiver of privilege we will do 4 that when we come back on Monday. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 I see as soon as you say "privilege," all the lawyers 7 stand up. It's an instinctive reaction. I hope you 8 realize that. So, now we have six (6) lawyers on their 9 feet and all wanting to say something. 10 Are you finished your examination? 11 MS. KATHERINE HENSEL: Yes. 12 COMMISSIONER SIDNEY LINDEN: We haven't 13 canvassed anybody yet with respect to what their -- 14 whether or not they wish to examine the Witness. 15 Do you want to speak now, Ms. -- 16 MS. ANDREA TUCK-JACKSON: Only to the 17 extent, Mr. Commissioner, that in respect of the 18 documents that are at Tabs 5 and 8, they were produced to 19 the Inquiry by the OPP. 20 COMMISSIONER SIDNEY LINDEN: Yes, I know 21 that. 22 MS. ANDREA TUCK-JACKSON: And I can 23 indicate that it was done through inadvertence. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. ANDREA TUCK-JACKSON: The documents
1871 were addressed to both Douglas Scott, who was seconded to 2 the OPP, but copies were also sent to two (2) OPP 3 officers. And there's some issue as to who's privilege 4 it is to be waived; whether it's the Solicitor General's 5 office so to speak, or whether it's the OPP. 6 And at this time, I don't have 7 instructions to waive those privileges. 8 COMMISSIONER SIDNEY LINDEN: That's not-- 9 MS. ANDREA TUCK-JACKSON: Or that 10 privilege, rather, on behalf of the OPP. I just wanted 11 that on the record. 12 COMMISSIONER SIDNEY LINDEN: The 13 documents aren't being offered now, so if they will, then 14 we're going to have to deal with this issue. 15 MS. ANDREA TUCK-JACKSON: Yes, sir. 16 COMMISSIONER SIDNEY LINDEN: I understand-- 17 MS. ANDREA TUCK-JACKSON: Thank you. 18 COMMISSIONER SIDNEY LINDEN: Does anybody 19 else have anything else that they need to say? 20 The documents are not before me, so I'm 21 not sure what arguments there could be made about 22 documents that I have not been offered. 23 MR. PETER ROSENTHAL: Yes, I -- I'm very 24 concerned by several matters that have arisen this 25 morning and in Ms. Twohig's submission to you.
1881 She indicates that she thinks all Counsel 2 understand that they waive privilege on September 5 and 6 3 but not afterward. 4 Well, we don't have a -- I don't have a 5 clear understanding of what's going on here, frankly, at 6 all. And privilege is, of course, the client's 7 privilege, and we are not told in each of these cases who 8 this Counsel or other potential Counsel's clients were. 9 If they were the OPP, then the OPP has 10 provided the documents voluntarily, apparently, to all of 11 us, so the privilege is gone. 12 COMMISSIONER SIDNEY LINDEN: Yes, so we-- 13 MR. PETER ROSENTHAL: If it was not the 14 OPP, who gave them to the OPP, and the privilege is 15 perhaps gone. 16 COMMISSIONER SIDNEY LINDEN: Yes, if and 17 when -- as I just said, Mr. Rosenthal, I expect this 18 argument's going to be made. 19 MR. PETER ROSENTHAL: Yes. 20 COMMISSIONER SIDNEY LINDEN: Because you 21 may want to use those documents in your cross- 22 examination, and at that time we'll have the argument. 23 MR. PETER ROSENTHAL: Absolutely, sir, 24 but it's not just documents. We're now told that legal 25 advice, that lawyers and many of the people who are to be
1891 testifying in the next fews days are lawyers, who were 2 employed by the Government, and the legal advice that 3 they gave after September 6th is not to be scrutinized. 4 COMMISSIONER SIDNEY LINDEN: Same thing. 5 You're going to get a chance to cross-examine. And if 6 you ask questions in that matter and if privilege is 7 raised we'll have a chance to sort it out. 8 MR. PETER ROSENTHAL: But, yes, and -- 9 yes, sir, I want it clear that certainly we do not accept 10 that any of that is privileged. And in each case, as Mr. 11 Roy alluded to, we have the right to know the nature of 12 what -- what is -- the privilege is being claimed over; 13 and how the privilege arises; who was the client and how 14 the information got here and so on and whether it was 15 waived by being made available to other people. 16 And also, Mr. Commissioner, they can't 17 just give us a few documents, you can't waive privilege 18 just -- just occasionally, in order to make your case 19 better. 20 Once they open it up, once lawyers are 21 toss -- testifying about some of the advice that they 22 gave to the Government, they can't arbitrarily decide 23 where to limit it. 24 COMMISSIONER SIDNEY LINDEN: Yes, I 25 know --
1901 MR. PETER ROSENTHAL: And that's what -- 2 that's what appears to be going on. 3 COMMISSIONER SIDNEY LINDEN: I'm not in a 4 position to say that at this point, but as I said, 5 there'll be an opportunity to debate, argue, this 6 question of privilege, obviously now. 7 Mr. Henderson, do you have anything to 8 add? 9 MR. WILLIAM HENDERSON: Yes, I do, 10 Commissioner. First, I'd like to express my appreciation 11 to the Witness for being so scrupulous in drawing our 12 attention to a barrier we didn't know existed. 13 Secondly, I simply want to point out that 14 in terms of the waiver, such as it is, or such as she 15 described it, relating to the Interministerial Committee 16 meetings on the 5th and the 6th, we've already talked to 17 Ms. Jai about a legal working group meeting that was 18 later on the 5th. 19 Just a few hours ago or within the past 20 few hours we've talked about the Blockade Committee as it 21 then was -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. WILLIAM HENDERSON: -- on the 7th. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. WILLIAM HENDERSON: So we seem -- we
1911 seem to have been operating well beyond those boundaries 2 and if they're now shrinking, as Mr. Rosenthal said, we 3 have more lawyers coming up and if we're not going to be 4 able to scrutinise what we anticipate we were going to be 5 able to scrutinise, I think we have to know what the 6 boundaries are in advance. 7 COMMISSIONER SIDNEY LINDEN: I think 8 you're right. 9 MR. WILLIAM HENDERSON: Now, the 10 documents, of course, we can deal with as and when they 11 arise and obviously that's an issue that -- that we're 12 aware of now. 13 But, you know, if the waiver that we're 14 supposedly dealing with and we obviously haven't been 15 dealing with is those two (2) meetings on the 5th and the 16 6th, you know, I don't know what -- what -- what more we 17 can get out of the future witnesses or what more they 18 have to offer which it appears we may not be able to get 19 to. 20 COMMISSIONER SIDNEY LINDEN: Yes, I -- 21 MR. WILLIAM HENDERSON: And I think we do 22 need to know that. 23 COMMISSIONER SIDNEY LINDEN: I 24 understand. That's why we're going to deal with this 25 when...
1921 MR. JULIAN ROY: I raise this. 2 COMMISSIONER SIDNEY LINDEN: The no- 3 privilege documents are documents over which privilege is 4 claimed. So, far in her evidence they haven't been 5 offered so I was going to ask if there's anybody who has 6 questions for this Witness. 7 And I expected that at some point somebody 8 would want to use a privileged document or perhaps a 9 conversation over which privilege is claimed and we'll 10 have to deal with it. I was just assuming we would deal 11 with it when it came up. 12 I mean it hasn't come up yet. It's not 13 before me at the moment. 14 MR. JULIAN ROY: I -- 15 COMMISSIONER SIDNEY LINDEN: It isn't. 16 There's no document before me over which I can look at it 17 and we can deal with the issue. 18 MR. JULIAN ROY: I understand that point. 19 I have something by way of reply because I'm the one that 20 raised this to -- what Ms. Twohig said. 21 COMMISSIONER SIDNEY LINDEN: Yeah, but I 22 think the issue's been raised prematurely. I mean, I 23 really -- I know we're going to have to deal with this. 24 MR. JULIAN ROY: I really would like to - 25 - to raise two (2) more things that come from what Ms.
1931 Twohig said that I think ought to be raised at this 2 point. 3 COMMISSIONER SIDNEY LINDEN: You see, Ms. 4 Twohig, how you've clarified things and now we have a 5 real issue before us. 6 Yes, carry on. 7 MR. JULIAN ROY: I mean, there -- there 8 are two (2) things. First of all there's Ms. Jai's 9 testimony that just passed. Was Ms. Jai operating under 10 some sort of assumption that she wasn't to talk about 11 certain things after certain dates? 12 COMMISSIONER SIDNEY LINDEN: I'm not 13 making that assumption, I don't know how you can. 14 MR. JULIAN ROY: But -- but that -- 15 that's the problem that's raised by Ms. Twohig's 16 assertion of privilege at this stage is we don't know -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JULIAN ROY: -- what Ms. Jai was 19 operating under as she gave her evidence. 20 COMMISSIONER SIDNEY LINDEN: Obviously 21 we're going to have to sort out the question of what is 22 privileged -- 23 MR. JULIAN ROY: That -- 24 COMMISSIONER SIDNEY LINDEN: -- and what 25 isn't and --
1941 MR. JULIAN ROY: That's my first point. 2 COMMISSIONER SIDNEY LINDEN: -- and where 3 are we now. 4 MR. JULIAN ROY: The second point is, is 5 that it would be my understanding that this Commission 6 had issued a summons to all parties for all relevant 7 documents. In those circumstances there's an obligation 8 on all parties to produce unless they assert the 9 privilege specifically, in my respectful submission. 10 And Mr. Sandler did it properly. When you 11 issued -- issued a summons in respect of documents that 12 Mr. Sandler and Ms. Tuck-Jackson wanted to maintain a 13 privilege over, they did the right thing, they identified 14 what it was that was within your summon -- within your 15 summons that they asserted privilege over and then it was 16 brought properly forward. Ms. Twohig has not done that. 17 COMMISSIONER SIDNEY LINDEN: I don't -- 18 MR. JULIAN ROY: Your -- your summons has 19 already been issued and -- and now we're hearing about -- 20 about -- 21 COMMISSIONER SIDNEY LINDEN: All right. 22 Thank you, Mr. Roy. 23 MR. JULIAN ROY: -- an assertion of 24 privilege. I'm very concerned. 25 COMMISSIONER SIDNEY LINDEN: Thank you,
1951 Mr. Roy, I appreciate your concern. 2 MS. SUSAN VELLA: I just -- since Mr. Roy 3 has -- has raised this issue I can advise that to the 4 best of our knowledge all relevant documents have been 5 produced by the Ontario Government. We've had 6 discussions around the privileged documents and so Mr. 7 Roy is in error in his assumption. As far as I know -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MS. SUSAN VELLA: -- the documents have 10 been produced to us. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MS. SUSAN VELLA: What we're dealing with 13 here is the possibility that there may be 14 cross-examination or examination in the future on matters 15 over which privilege may be asserted. In the event that 16 privilege is asserted by -- we will deal with it. 17 COMMISSIONER SIDNEY LINDEN: That's 18 exactly right. 19 MS. SUSAN VELLA: It's not an issue right 20 now before you. 21 COMMISSIONER SIDNEY LINDEN: That's 22 exactly right so I'm anxious to get on with the questions 23 of this Witness. Perhaps we can do some cross- 24 examination and when we run into the difficulty we'll 25 deal with it, if we run into it.
1961 We may get a waiver in the meantime; is 2 that a possibility? 3 MS. KIM TWOHIG: My instructions are 4 that apart -- that apart from -- let's start again. My 5 instructions are that apart from legal advice that was 6 given within the context of the two (2) meetings and by 7 "within the context" I mean within the events of 8 September 5th and 6th that there has not been a waiver of 9 privilege. 10 And my instructions are not to waive 11 privilege. I can make a request with respect to 12 particular documents if an incident such as this arises 13 which was unanticipated and these things happen when 14 we're dealing with thousands and thousands of documents, 15 but -- 16 COMMISSIONER SIDNEY LINDEN: All right. 17 I'm not going to ask -- 18 MS. KIM TWOHIG: -- I would have to go 19 back for more. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 I'm not going to ask you again because when you answer 22 more questions are raised, it seems. 23 So Ms. Perschy, you have some 24 observations? 25 MS. ANNA PERSCHY: Yes, Commissioner, the
1971 issue came up because as part of my cross-examination I 2 was going to refer to certain documents, including the 3 Committee Meeting minutes that Ms. Twohig was referring 4 to, the ones with respect to which she was planning on 5 putting in the redacted versions and also the two (2) 6 legal opinions and a couple of other documents that raise 7 similar issues. 8 COMMISSIONER SIDNEY LINDEN: And I expect 9 you will. 10 MS. ANNA PERSCHY: And -- 11 COMMISSIONER SIDNEY LINDEN: You intend 12 to do that? 13 MS. ANNA PERSCHY: Yes. And as a result 14 of that, I've discussed that with Ms. Twohig. She then 15 advised me of -- of her position and that's how this 16 issue had arisen and we realized that we were likely 17 going to have to have legal argument on this issue and I 18 would not be able to conduct my cross-examination -- 19 COMMISSIONER SIDNEY LINDEN: That's what 20 I thought. 21 MS. ANNA PERSCHY: -- today. 22 COMMISSIONER SIDNEY LINDEN: And that 23 wouldn't happen until you cross-examined and you wish to 24 cross-examine on those documents, then the issue would 25 arise.
1981 MS. ANNA PERSCHY: Thank you. 2 At the moment, the issue is not before me, 3 so my question is: Does anybody here wish to exa -- it's 4 going to come up. 5 I mean, I realize that. You're looking at 6 me, I understand that the issue will come up, but I will 7 deal with it when it does. 8 Does anybody here wish to cross-examine 9 Ms. Hipfner? 10 11 (BRIEF PAUSE) 12 13 COMMISSIONER SIDNEY LINDEN: It looks 14 like everybody. I'm not sure if it's because of this 15 issue of privilege or if it's not; it might be. 16 MS. KATHERINE HENSEL: I'm sorry, Mr. 17 Roland is sitting down. 18 COMMISSIONER SIDNEY LINDEN: I'm just 19 concerned that it might be because of this issue of 20 privilege is hanging out there now. 21 If we didn't have this question of 22 privilege to deal with, which we do, and I'm saying we do 23 and we will, if we didn't have this question of privilege 24 would everybody still be interested in examining this 25 Witness?
1991 All right. Now let's go through the list. 2 How long do you expect to be, Ms. 3 McAleer...? 4 MS. JENNIFER MCALEER: Approximately an 5 hour sir. 6 COMMISSIONER SIDNEY LINDEN: Ms. 7 Horvat...? 8 MS. JACQUELINE HORVAT: Approximately ten 9 (10) minutes. 10 COMMISSIONER SIDNEY LINDEN: Ms. Mrozek - 11 - I'm sorry, who's here on behalf of Mr. Runciman? On 12 behalf of Mr. Runciman is anybody here? No? 13 On behalf of Mr. Hodgson? 14 MS. ERIN TULLY: Less than five (5) 15 minutes. 16 COMMISSIONER SIDNEY LINDEN: On behalf of 17 Mr. Beaubien? 18 MR. DOUGLAS SULMAN: Five (5) to ten (10) 19 minutes, sir. 20 COMMISSIONER SIDNEY LINDEN: All right. 21 On behalf of Deb Hutton, Ms. Perschy...? 22 MS. ANNA PERSCHY: This could be a couple 23 of hours. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 Ms. Tuck-Jackson...?
2001 MS. ANDREA TUCK-JACKSON: Likely ten (10) 2 to fifteen (15) minutes. 3 COMMISSIONER SIDNEY LINDEN: Oh, that's 4 fine. 5 Mr. Roland is not on his feet. 6 Estate? 7 MR. BASIL ALEXANDER: One (1) to two (2) 8 hours. 9 COMMISSIONER SIDNEY LINDEN: Mr. -- I'm 10 sorry, Ms. Esmonde...? 11 MS. JACKIE ESMONDE: An hour and a half. 12 COMMISSIONER SIDNEY LINDEN: Mr. 13 Scullion...? 14 MR. KEVIN SCULLION: I'll reserve half an 15 hour. 16 COMMISSIONER SIDNEY LINDEN: Oh, well, 17 that's fine. 18 Mr. Henderson...? 19 MR. WILLIAM HENDERSON: I'll reserve half 20 an hour and possibly more. 21 COMMISSIONER SIDNEY LINDEN: Well that's 22 fine. 23 And Mr. Horner...? 24 MR. MATTHEW HORNER: I'll reserve twenty 25 (20) minutes.
2011 COMMISSIONER SIDNEY LINDEN: And Mr. 2 Roy...? 3 MR. JULIAN ROY: I would reserve about an 4 hour and a half to two (2) hours but I -- 5 COMMISSIONER SIDNEY LINDEN: Well, that's 6 fine. 7 MR. JULIAN ROY: -- but I'm optimistic 8 about that, given what other Counsel have said that it 9 could be less. 10 COMMISSIONER SIDNEY LINDEN: Yes, and it 11 guess it somewhat depends on when we resolve this 12 question of privilege. 13 MR. JULIAN ROY: Well the legal argument 14 might take considerably longer. 15 COMMISSIONER SIDNEY LINDEN: Yes, I 16 understand that. I'm prepared for that -- 17 MR. JULIAN ROY: And it may go in fits 18 and starts, so. 19 COMMISSIONER SIDNEY LINDEN: Well, we'll 20 -- no, no, once we deal with it, we'll deal with it. 21 MR. JULIAN ROY: Oh, I see. 22 COMMISSIONER SIDNEY LINDEN: Once it hits 23 us, and it will -- 24 MR. JULIAN ROY: I am misunderstanding 25 the process that is being proposed then, because I
2021 thought -- 2 COMMISSIONER SIDNEY LINDEN: I'm waiting 3 for it to come up and when it comes up we'll deal with 4 it. We'll deal with it -- 5 MR. JULIAN ROY: All right. But in order 6 for it to be dealt with on a comprehensive basis, in my 7 respectful submission, all I would reiterate is my 8 submission earlier to you is that we ought to have clear 9 definition about the totality of what -- 10 COMMISSIONER SIDNEY LINDEN: Thank you, 11 Mr. Roy. 12 MR. JULIAN ROY: I'm sorry to -- 13 COMMISSIONER SIDNEY LINDEN: I appreciate 14 your submission. 15 MR. JULIAN ROY: I'm sorry to keep -- 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN ROY: -- beating the dead 18 horse, but. 19 COMMISSIONER SIDNEY LINDEN: Well, we 20 will -- do you want to start the cross-examination now? 21 I think we should, because none of them are too long. 22 And if an issue comes up this afternoon 23 and we can't deal with it right now, then we'll adjourn 24 and deal with it on Monday when we come back, I'm meaning 25 this question of privilege.
2031 MS. KATHERINE HENSEL: And I do 2 understand that Ms. McAleer is prepared to proceed? 3 4 (BRIEF PAUSE) 5 6 CROSS-EXAMINATION BY MS. JENNIFER MCALEER: 7 Q: Good afternoon, Ms. Hipfner. 8 A: Good afternoon. 9 Q: Good afternoon, sir. 10 COMMISSIONER SIDNEY LINDEN: Good 11 afternoon. 12 13 CONTINUED BY MS. JENNIFER MCALEER: 14 Q: My name is Jennifer McAleer and I'm 15 one of the lawyers who's acting for the former Premier, 16 Mike Harris. 17 I have a few questions for you this 18 afternoon, but as indicated to the Commissioner, I 19 anticipate that I will be less than an hour. 20 A: Thank you. 21 Q: I wanted to start by asking you a 22 little bit more about your experience, generally, with 23 the Interministerial Committee. 24 Prior to the meeting that you attended in 25 May of 1993 --
2041 A: Hmm hmm. 2 Q: -- had you attended any other 3 meetings of the Interministerial Committee on Aboriginal 4 Affairs? 5 A: I don't think so. 6 Q: Okay. And apart from that one 7 meeting in the Summer of 1993 that you recall, had you 8 participated in any other meetings, whether dealing with 9 Ipperwash or not, between that meeting in May of 1993 and 10 the meeting you attending in September of 1995? 11 A: Yes. And I may have to ask Katherine 12 Hensel for some assistance with or maybe you with 13 document numbers. 14 Q: Okay. Well let's break it down 15 first. You believe you have attended another meeting of 16 the Interministerial Committee? 17 A: I have no current recollection of 18 having attended another meeting of the Interministerial 19 Committee. But on the minutes of the first set -- in the 20 minutes of the first meeting indicates there was to be 21 another meeting some time later. I don't know whether I 22 attended that one and there don't appear to be any 23 minutes of that meeting in my set of documents. 24 Then there is another set of meeting 25 minutes, I can't remember at which tab, which indicate
2051 that I did attend at least a second Interministerial 2 meeting that Summer. 3 Q: That's my understand as well, Ms. 4 Hipfner. And just to clarify, my understanding is that 5 there were seven (7) meetings of the Interministerial 6 Committee on Aboriginal affairs that discuss the 7 Ipperwash matter in the Summer of 1993. 8 A: Hmm hmm. 9 Q: Ms. Hensel has taken you to the 10 minutes of the meeting on May 21st, 1993 and you're 11 listed as an attendee and I understand you have some 12 recollection of that meeting but not very much; that's 13 correct? 14 A: It's correct. 15 Q: And then there are meetings on May 16 25th, May 27th, May 31st, June 4th and June 11th, but you 17 are not listed as an attendee at any of those meetings. 18 A: Hmm hmm. 19 Q: So I don't intend to take you to the 20 minutes to any of those meetings because I don't believe 21 you were there. 22 A: Thank you. 23 Q: That accords with your recollection? 24 A: That accords with my recollection. 25 Q: Okay. And despite the fact that in
2061 the minutes of the May 21st, 1993 meeting, it's indicated 2 that you are appointed a member of the working group. I 3 take it you -- you actually didn't play an active role in 4 the working group because you weren't at any of those 5 other meetings? 6 A: I don't know whether I played an 7 active role. I simply have no recollection. 8 Q: Okay that's fine. And then I believe 9 you did attend a meeting on June 25th, 1993 but for my 10 purposes today I don't intend to take you to those 11 minutes. 12 A: Thank you. 13 Q: Now apart from those meetings on -- 14 which were all on Ipperwash, did you generally have other 15 involvement with the Interministerial Committee on 16 Aboriginal Affairs? 17 A: No, I didn't. 18 Q: So that means by September of 1995, 19 as far as we know today, there's a total of two (2) 20 Interministerial Committee meetings that you had 21 previously attended? 22 A: That's correct. 23 Q: Now if you could turn to your notes 24 of the September 5th Interministerial Committee meeting 25 and I may actually just refer to it as the IMC, if that's
2071 convenient for everyone else as it is for me. 2 A: What tab are they at? 3 Q: That is at your Tab 14 and for 4 counsel who have the previous compendium, it's Tab 11. 5 Now I understand that that meeting started with a general 6 background. You indicated by Ron Fox as to what exactly 7 had happened when the Park was taken over the previous 8 evening on September 4th. 9 I -- I just wanted to ask you whether some 10 of other facts that aren't recorded in your notes may 11 have actually been discussed at the meeting. 12 A: Hmm hmm. 13 Q: And if you recall them today. In 14 particular, do you recall it being conveyed to you that 15 one of the occupiers had used an instrument to break a 16 police cruiser window, during the takeover of the Park? 17 A: Yes, I recall that. 18 Q: Do you recall who told you about 19 that? 20 A: I don't remember. 21 Q: And do you recall that it had been 22 conveyed to you that one of the occupiers had thrown a 23 flare at a police officer during the takeover of the Park 24 on September 4th. 25 A: I don't -- I don't -- I don't
2081 remember whether I knew that or not or had been told 2 that. 3 Q: And then your notes indicate, at page 4 3, that you were aware that the MNR had been denied 5 access to the Provincial Park. And then if we go to page 6 7 of your notes, at the very bottom, you get a further 7 update from -- I think you identified it was from Ron 8 Fox. 9 A: Hmm hmm. 10 Q: And that update indicates; "Have cut 11 some trees to form barricade." 12 A: That's right. 13 Q: You recall being told that by 14 Inspector Fox? 15 A: Yes. 16 Q: Okay. So at least by the end of the 17 meeting on September 5th you were aware that there had 18 been some property damage to the Provincial Park as a 19 result of the takeover? 20 A: Yes. 21 Q: Now if we turn to page 4 of your 22 notes, at the very bottom there's a comment by Ron 23 Baldwin. Ron Baldwin: 24 "There are permanent homes and 25 cottages?"
2091 Is that what that symbol means? 2 A: "There are permanent homes and 3 cottages in the area." 4 Q: "And cottages in the area. Think 5 about relations with Kettle and Stoney 6 Point First Nations. They're likely to 7 get frustrated if we don't take some 8 sort of action." 9 A: That's right. 10 Q: Okay. And do you recall that it was 11 a concern or that the IMC was at least alive to the issue 12 that however the IMC decided to respond to the occupation 13 that it did not want to do anything that would be seen to 14 undermine the authority of the Kettle and Stoney Point 15 First Nation? 16 A: The IMC couldn't make decisions about 17 how to respond to the occupation, it could only make 18 recommendations. 19 Q: Thank you for -- for correcting me. 20 A: Thank you. 21 Q: When you were deliberating as to what 22 recommendations the Committee would make, do you recall 23 if there was any voice given to the concern that whatever 24 the IMC recommended they did not want to recommend a 25 course of action that would be seen to undermine the
2101 authority of the Kettle and Stony Point First Nation? 2 A: I don't have a specific recollection 3 of that comment being made, but it is entirely consistent 4 with the discussion that occurred that day. 5 Q: And then if we look at page 6 of your 6 notes -- 7 A: Is that the last final page? Oh, 8 no -- 9 Q: No, it's the second last page 10 actually. 11 A: Yes. 12 Q: About a third of the way down the 13 page there's -- there's a note says, "Christian B." Now, 14 I -- I may have missed this in your evidence-in-chief; is 15 that Chris Buhagiar? 16 A: Christian Buhagiar. 17 Q: Thank you. And I understand that, 18 Mr. Buhagiar? 19 A: Yes. 20 Q: Was the executive assistant to the 21 parliamentary assistant for ONAS; is that correct? 22 A: The -- the -- he was the executive 23 assistant to the parliamentary -- 24 Q: to the parliamentary secretary. 25 A: -- secretary for the Minister
2111 responsible for Native Affairs, yes. 2 Q: That's correct. And below his name 3 there's -- there's a comment: 4 "Issue of doing anything that confirms 5 status, recognition, legitimacy of the 6 Stoney Pointers. If send someone from 7 ONAS..." 8 A: Confirms. 9 Q: "...confirms [thank you] confirms 10 their legitimacy. OPP/MNR are on the 11 ground and running?" 12 A: Yes. 13 Q: "They..." 14 A: They'd be more appropriate. 15 Q: They'd be more appropriate. Thank 16 you. Now, do you recall the discussion at the meeting 17 surrounding this issue about not doing anything to 18 confirm the status, recognition, or legitimacy of the 19 Stoney Pointers? 20 A: I remember there was discussion at 21 one (1) of the meetings or possibly both about not 22 wanting to do that. 23 Q: Okay. And was that something that 24 the Committee essentially agreed upon? 25 A: I don't remember anybody expressly
2121 disagreeing with it. 2 Q: Yeah. And I'm going to suggest to 3 you that one (1) of the reasons that the group did not 4 want to confer legitimacy on the occupiers was because 5 they didn't want, again, to undermine the authority of 6 the Kettle and Stony Point Band? 7 A: I'm sorry, could you repeat that 8 question? 9 Q: Sure. That one (1) of the reasons 10 why the Committee didn't want to recommend any course of 11 action that might confirm the legitimacy of the occupiers 12 was -- 13 A: Hmm hmm. 14 Q: -- because they did not want to be 15 seen to recommend a course of action that would undermine 16 the authority of the Kettle and Stony Point Band? 17 A: Different members of the Committee 18 may have had different reasons for not wanting to do so, 19 but I think it's fair to say that that would have been 20 one (1) of the reasons that some people may have had for 21 not wanting to -- to -- to do that. 22 Q: Do -- do -- would you agree with that 23 reason? Was that something that you thought would be an 24 appropriate consideration? 25 A: I think I -- I said earlier that the
2131 individuals who occupied the Park from my perspective had 2 no, we'll say, standing, to assert an interest in land on 3 behalf of the First Nation. 4 And it's not clear either to me that they 5 could have dealt on their own. In fact, I don't think 6 they could have discussed on their own, what to do about 7 a burial site either. 8 Under the Cemeteries Act, the owner of 9 land must -- must deal with the First Nation. 10 And so I'm not sure -- this all happens in 11 the context of a communications plan. Christian Buhagiar 12 seems to be discussing a communications plan. 13 So, I would say, from a legal perspective, 14 dealing with these people wasn't going to have the effect 15 in law of conferring any status on them that they didn't 16 already enjoy. 17 But, from a communications perspective and 18 a public relations perspective, I understand what Mr. 19 Buhagiar was -- was referring to and I think there would 20 have been, generally, some sympathy for that position 21 among Committee members -- 22 Q: Okay. 23 A: -- that's my sense. 24 Q: It was a reasonable position to take? 25 A: Yes.
2141 Q: Did anyone at the meeting object and 2 suggest that the Committee should recommend sending a 3 negotiator to try and open up communications with the 4 occupiers at this point in time? 5 A: I don't know that it would have been 6 framed as an objection. I don't recall whether there was 7 any discussion about actually appointing a negotiator. 8 I don't think we were that far down the 9 road yet. 10 Q: So, it was concluded, then, by the 11 IMC that, as Mr. Buhagiar has stated, that the OPP and 12 the MNR are on the ground running and they'd be the most 13 appropriate people to try and communicate with the 14 occupiers? 15 A: I think that somebody makes the point 16 at one of the two (2) meetings that the Committee -- that 17 the Government has had enormous success in addressing 18 these kinds of incidents by keeping them local and by 19 having local OPP and local MNR staff or local Ministry of 20 Transportation staff, if you're dealing with the highway, 21 address those matters. 22 That keeping it low key had proven to be a 23 successful response, at least, until that time. 24 Q: And then there is one, and I think 25 more than one reference to the issue of a burial ground
2151 being raised on September the 5th. 2 And I just wanted to ask you if you 3 recalled whether anybody, at the September 5th meeting or 4 the September 6th meeting, had suggested that ONAS should 5 send somebody to interview members of the local 6 Aboriginal community in order to determine whether there 7 was any oral history of a burial ground within the 8 Provincial Park? 9 A: Within the Ontario government, the 10 Ontario Native Affairs Secretariat has no mandate to 11 address the issue of Aboriginal burial sites. 12 That's a function of the Cemeteries Branch 13 of what was at the time, the Ministry of Consumer and 14 Commercial Relations. 15 ONAS's only dealings with burial sites, 16 when I think about it, and this is purely hypothetical 17 because I don't know that it's happened, would arise in 18 the context of a land claim if -- if a formal land claim 19 submission was somehow integrally related to the 20 existence of a burial site. 21 The other way that ONAS might become 22 addressed -- involved in addressing issues related to a 23 burial site is, as in this case, ultimately if there was 24 a blockade or some other form of direct action with some 25 assertion that the existence of a burial site was
2161 underlying it. 2 But ONAS had no mandate within government 3 for addressing the disposition of burial sites. 4 Q: So does that mean you don't recall 5 anybody making a suggestion at the meeting? 6 A: Which suggestion was that again? 7 Q: Is that suggestion being that ONAS or 8 somebody should send someone to interview members of the 9 local Aboriginal community to see if there was an oral 10 history of this burial site? 11 A: Staff of the Ministry of Natural 12 Resources, and of the OPP, were at Ipperwash Provincial 13 Park trying to engage the occupiers of the Park in a 14 discussion about why it was that they were occupying the 15 Park. 16 And the occupiers did not appear to be 17 ready to engage yet in -- in discussion with them. I'm 18 not sure that anything would have been served by 19 attempting to interview other members of the community. 20 Q: Okay. 21 A: The -- 22 Q: And you don't recall anybody 23 suggesting that? 24 A: I don't recall it. 25 Q: Now, if we look at page 6 of your
2171 notes, the very top, it says -- 2 A: Can I -- can I add one other point? 3 Q: Sure. 4 A: I'm sorry. Are these about -- are 5 these my meeting notes of September 5th? 6 Q: Yes, they are. 7 A: Okay. The occupiers of the Park had 8 not provided any information to the Government at that 9 point, that the reason that they'd occupied the Park was 10 because it was a burial site. 11 Q: Okay. And I believe there's some 12 reference in the notes in September 6th and also the 5th 13 to this issue of a burial site. But I take it your last 14 answer to me about nobody suggesting that one go and 15 interview local people applies to September 6th, as well. 16 A: That would be correct, yes. 17 Q: Now if we turn to page 6 at the top 18 of the page of your September 5th notes, it says: 19 "Ron: Have to find out what the First 20 Nation really wants. If burial site is 21 an issue, let them raise it." 22 A: "Let them raise it." 23 Q: "They haven't yet." 24 A: Yes. 25 Q: That's consistent with what you had
2181 just said a moment ago. 2 A: Yes. 3 Q: You -- you testified in-chief that 4 you weren't sure whether this was Ron Fox or Ron Baldwin. 5 And I want to see if I can just jog your memory a little 6 bit. 7 In your notes, when you refer to Ron Fox, 8 you -- you simply use the name Ron and when you refer to 9 Ron Baldwin you actually write out "Ron Baldwin," I've 10 noticed in your notes. 11 A: Hmm hmm. 12 Q: Now that alone may not assist you 13 does it? 14 A: I'd be guessing at the answer. I 15 don't remember which Ron it is and if I'm writing quickly 16 I may have failed to write Ron Baldwin. I simply don't 17 know and I don't want to -- I don't want to guess. 18 Q: That's fine that you don't know 19 today. You were -- well the party representing the 20 Government of Ontario was actually specifically asked 21 this question during the examination for discovery 22 process in the civil proceedings. 23 A: Hmm hmm. 24 Q: And an undertaking was put to ask you 25 to whom you were referring when you made this note.
2191 A: Hmm hmm. 2 Q: And I can take you to your answer at 3 the undertakings. 4 A: Hmm hmm. 5 Q: Perhaps what I'll do is I'll simply 6 read it into the record and I'll show it to your counsel 7 that she can confirm that what I'm reading is correct. 8 A: Sure. Do I not have it in my Book of 9 Documents? 10 Q: No, you don't. I did send out notice 11 of this but it was late yesterday evening because things 12 were moving a little bit faster than I had anticipated. 13 This is Document 3000412. It's a table 14 that's attached to a letter from Mr. Brown to Mr. 15 Klippenstein dated July 25th, 19 -- sorry, 2003. And the 16 question and answer that I want to simply draw to your 17 attention is at page 4 of the chart. And I'll show it to 18 Ms. Twohig in a moment. 19 The -- the answer provided by you through 20 your counsel was -- 21 A: I'm sorry, what was the question that 22 was being answered? Thank you. I have the right page. 23 Q: Yes, that's it. The question doesn't 24 appear. The question apparently is in another document - 25 -
2201 A: Okay. 2 Q: -- where all the undertakings are 3 listed. But let's see if we can get through this without 4 looking at it. And if -- if you're confused, just let me 5 know. 6 At -- at the very bottom it says: 7 "At page 33620 my notes reflect Ron 8 stated that we have to find out what 9 the First Nation really want. If the 10 burial site is an issue, let them raise 11 it. They haven't." 12 So, I -- I would suggest to you that that 13 passage is the same passage that we're look at in your 14 notes. 15 A: Hmm hmm. Yes. 16 Q: "I believe that Ron is Ron Fox. It 17 is not clear from my notes whether the 18 reference to FN is the First Nation. 19 It's intended to mean the occupiers of 20 the Park were Kettle and Stoney Point 21 First Nation." 22 So at least in -- in 2003 your information 23 appears to have been that that the Ron referred to at 24 this note was Ron Fox. 25 A: Hmm hmm.
2211 Q: Does that assist you -- 2 A: No. 3 Q: It doesn't. Okay. 4 Do you recall having a clearer memory of 5 these events in 2003 than present? 6 A: Yes. 7 Q: Okay. I then want to ask you some 8 questions about the, 'hawkish' comment. 9 A: Hmm hmm. 10 Q: Which is at page 4 of your notes. 11 And it's halfway down the page and you read it into the 12 record through Ms. Hensel, but I'll just read it again. 13 "Deb: Premier is hawkish on this 14 issue. Will set the tone how we deal 15 with these issues over the next four 16 (4) years." 17 And -- and you indicated to Ms. Hensel 18 that when you heard that comment you actually had to stop 19 and -- and to think about it? 20 A: I think it may have been momentary, 21 but there was a -- a moment of confusion as I digested 22 what the word meant. 23 Q: Okay. And then I think you said that 24 you concluded that it could have a couple of meanings, it 25 could be aggressive, it could be warlike, it could be
2221 proactive. 2 A: Hmm hmm. 3 Q: That's -- that was your evidence to 4 Ms. Hensel. Did you actually ask Ms. Hutton to clarify 5 or to explain what she meant by that? 6 A: No, I didn't. 7 Q: And you agree with today that that 8 word can have several meanings? 9 A: I'm not aware of other meanings. 10 Q: Apart from the three (3) that you 11 provided during your examination? 12 A: I'm not aware of other meetings -- 13 meanings, no. 14 Q: And then you also testified that at 15 the September 5th meeting that the MNR people aligned 16 themselves with Ms. Hutton and that looking back on the 17 situation perhaps you may have misinterpreted the fact 18 that they were perhaps a little loud on the phone, due to 19 the fact that they were somewhere else and they were 20 calling in on a speaker phone? 21 A: Hmm hmm. Yes. 22 Q: I'm sorry, you're going to have to 23 say. 24 A: Yes. 25 Q: But you're really just speculating
2231 today as to why it is that you thought at the time that 2 they were a little bit more aligned with Ms. Hutton than 3 perhaps the other people in the room? 4 A: I think that's fair. 5 Q: And there may have been other reasons 6 as to why their view was more consistent with Ms. 7 Hutton's and perhaps it may have had more to do with what 8 they were experiencing on the ground; is that fair? 9 A: That's -- that's possible. 10 11 (BRIEF PAUSE) 12 13 Q: And then if we turn to page 5 of your 14 notes, at the very top of the page. And I think you were 15 clear in your evidence to Ms. Hensel that this reference 16 to Ron was, in fact, Ron Fox because you actually said 17 you found it -- 18 A: Yes. 19 Q: -- fascinating to know what police 20 officers -- 21 A: Yes. 22 Q: -- know. And the heading at the top 23 of the page is: 24 "Alternatives to Injunction: Ron. 25 People from throughout the province may
2241 be here. More occupiers than there are 2 Stoney Pointers." 3 Let me just stop there for a minute. Did 4 you understand Ron Fox to be telling the IMC that there 5 were already people in possession of the Park who were 6 not Stoney Pointers? 7 A: What I have recorded in my notes is 8 that he says: 9 "People from throughout the province 10 may be here. More occupiers than there 11 are Stoney Pointers." 12 Q: You have no further recollection as 13 to what -- 14 A: I don't -- 15 Q: -- he meant by that. 16 A: No. 17 Q: Okay. Difficult to police. Sorry, 18 is that difficult -- 19 A: Difficult for the police. 20 Q: Thank you. 21 "Difficult for the police to secure 22 forest beach access. The longer 23 they're there, the more familiar they 24 become with surroundings and the more 25 difficult it becomes to remove them."
2251 Do you recall Mr. Fox making those 2 comments at the meeting? 3 A: I don't recall him making the final 4 comment. I recall the other two, but I don't recall him 5 making the final comment. 6 Q: Okay. 7 A: About the longer they're there, the 8 more familiar they become with their surroundings. 9 Q: By looking at your notes and the 10 manner in which you take notes -- 11 A: Hmm hmm. 12 Q: -- is it more probable than not that 13 this was a continuation of Mr. Fox's comments? 14 A: Yes. 15 Q: Okay. And did you understand him to 16 be, perhaps, cautioning the Committee that the longer the 17 occupation lasted there was a potential that the 18 occupation could, in fact, grow, that people might come 19 from other regions of the province in support of the 20 occupiers? 21 A: Sorry, could you repeat your 22 question? 23 Q: Certainly. 24 A: Thank you. 25 Q: Do you -- do you -- did you
2261 understand that what he was attempting to convey here -- 2 A: Hmm hmm. 3 Q: -- among other things is to -- is to 4 suggest that the longer the occupation lasts the 5 potential for it to grow, that, in fact, more people may 6 come to support the occupiers? 7 A: I don't know that that final 8 statement can be read as suggesting that the number of 9 occupiers might grow so much as that the occupiers who 10 are there simply become more familiar with their 11 surroundings, and that it becomes more difficult to 12 remove them. 13 Q: Okay. And he seems to say that, in 14 particular, there's a problem with the police being able 15 to secure the area. There's forest, there's beach 16 access -- 17 A: Yes. 18 Q: Now to me when I look at that, that 19 implies that he, again, is raising this issue of more 20 people coming in. 21 A: Yes. 22 Q: Does that -- 23 A: Well, no, not -- 24 Q: -- assist you? 25 A: -- necessarily more people coming in.
2271 What I recall him saying is that there was a lot of 2 movement in and out of the Park. 3 He also made the point, I recall, that the 4 occupiers themselves were going to school and attending 5 work and that they were free to move in and out, because 6 the perimeter of the Park was very difficult to secure. 7 Q: Now, to me it's interesting that Mr. 8 Fox or Inspector Fox makes these comments under the 9 heading, "Alternatives to Injunction -- 10 A: I'm not sure he did. 11 Q: Okay. Well, I was going to ask you. 12 It seems that this is actually perhaps -- this line of 13 reasoning is more in support of proceeding with an 14 injunction. 15 Is that -- was that your understanding 16 that Mr. Fox was actually in favour of proceeding with an 17 injunction as soon as possible? 18 A: My recollection is that the OPP 19 certainly preferred that an injunction be obtained. I'm 20 not sure about the "as soon as possible" part, but -- 21 Q: I'm sorry? 22 A: I'm not sure about the "as soon as 23 possible" part. 24 Q: Okay. Well he seems to be saying, 25 the longer the occupation lasts, the more difficult it
2281 will be to end the occupation? 2 A: Yes, but it's also possible to end an 3 occupation without obtaining an injunction. 4 Q: That's correct. But you'll agree 5 with me that what he's conveying here is the longer the 6 occupation lasts -- 7 A: Hmm hmm. 8 Q: -- the more difficult it is to end? 9 A: That's right. I don't believe -- I 10 don't see anything in my note -- in my notes that 11 reflects any suggestion that he is tying this explicitly 12 to the issue of the injunction. 13 And it's entirely possible when you -- 14 when you look at the heading at the top of page 5 which 15 says, "Alternatives to an Injunction," that we were going 16 to start one discussion and then got side tracked to 17 something else, that's entirely possible. 18 Q: That's fine. And that, in your view, 19 wasn't an unreasonable assumption, was it, that the 20 longer an occupation lasts, the more difficult it is to 21 end the occupation? 22 A: Actually, that's not my experience. 23 When I was a Counsel with the Ministry of the Solicitor 24 General, I remember particularly in the context of the -- 25 the occupation of some homes in a small town that the
2291 police actually -- and it was the OPP again, waited a 2 very long time to actually remove the occupiers. 3 Because what happens if -- and this is -- 4 this is where I learned this, at the very beginning of an 5 occupation everybody's -- the adrenaline is high, the 6 occupiers of a Park, or a series of buildings, are 7 expecting the police to move in and what -- what often 8 happens as a tactic, I learned, is that -- is that the 9 police will just wait until the occupation just becomes 10 sort of habitual and people start to go to sleep at night 11 and -- and are caught with their guard down. 12 And I have known of OPP operations where 13 they waited a very, very long time until -- until the 14 occupiers were no longer expecting the police to move in, 15 because the situation had become so normalized, and then 16 the OPP moved in in the middle of the night with a 17 bulldozer and bulldozed these buildings, removed the 18 occupants, much to their surprise and bulldozed the 19 buildings which were, in any event, going to be 20 condemned. 21 So my experience with -- with the OPP is 22 that probably the last thing that you do when you are 23 dealing with occupations and blockades and things of that 24 sort, is try to move in right away. 25 That the longer you wait, in fact, the
2301 more likely you are to be able to succeed in removing the 2 occupiers. 3 Q: I appreciate that that may have been 4 your view and is your view today -- 5 A: Yes. 6 Q: -- but will you agree with me that 7 this, at least, was Ron Fox's view on September 5th, as 8 conveyed to the IMC, that the longer the occupation 9 lasts, the more difficult it will be remove them? 10 A: It certainly records what he -- what 11 he said to the Committee. 12 Q: Yes. And when you heard Ron Fox say 13 that, did you interpret his comments as advocating an 14 aggressive course of action? 15 A: Ron Fox's comments? 16 Q: Yes. 17 A: Never. 18 Q: And in particular this comment, that 19 the longer they're there the more difficult it'll be to 20 remove them? 21 A: I think it was an observation. I'm 22 not sure that he was advocating anything at that point. 23 Q: Okay. Because it wouldn't be 24 appropriate to read in that position with respect to that 25 comment, is that what you're telling me?
2311 A: What position with respect to what 2 comment? 3 Q: I -- I'll rephrase. 4 A: I'm sorry. 5 Q: Simply stating the longer they're 6 there the more difficult it'll be to remove them? 7 A: Hmm hmm. 8 Q: That we can't read into that that one 9 is advocating an aggressive approach? 10 A: I -- I think -- I don't know what he 11 intended. Clearly, I do not know what Inspector Fox 12 intended by that remark. 13 Q: And then if we turn to page 7 we 14 have, "Agreement" at the top of the page. Three (3) 15 messages to the public and I think you indicated you 16 don't recall what they were today and then number 2: 17 "To assess quick legal mechanisms 18 including an ex parte injunction." 19 A: Hmm hmm. 20 Q: Now, is it your recollection at the 21 end of the IMC meeting on September 5th that this in fact 22 was a matter that the Committee had agreed upon that one 23 (1) -- that the Committee should be looking into 24 accessing quick legal mechanisms? 25 A: I think there was a decision taken to
2321 investigate the issue of -- of injunctions, yes. Nobody 2 expressed disagreement with it. 3 Q: Those are all my questions with 4 respect to the September 5th meeting so if you want to 5 turn to your notes for the September 6th meeting which is 6 at my Tab 15 and it's at your Tab 16 I believe. 7 MS. SUSAN VELLA: Seventeen (17). 8 MS. JENNIFER MCALEER: Seventeen (17). 9 THE WITNESS: Seventeen (17), I've got 10 it, thanks. 11 MS. JENNIFER MCALEER: Seventeen (17), 12 and that's Exhibit P-636. 13 14 CONTINUED BY MS. JENNIFER MCALEER: 15 Q: And if we turn to page 2 of those 16 notes at the top it says: 17 "Hutton: The Premier is firm that at 18 no time should anybody but OPP/MNR be 19 involved with --" 20 A: In -- 21 Q: I'm sorry? 22 A: In the discussions. 23 Q: Sorry. 24 "Involved in the discussions despite 25 any..."
2331 A: "Offers that might be made by third 2 parties, chief, et cetera, because get 3 into negotiations and we don't want 4 that." 5 Q: Thank you. And that was consistent 6 with the conclusion that the IMC had reached the previous 7 day that communications should be left to the MNR and 8 OPP, is that correct? 9 A: I'm going to have to -- 10 Q: Do you want me to take you back to 11 it? 12 A: If you could, please. 13 Q: That's fine. 14 A: Thank you. 15 Q: Your Tab 14. 16 A: Hmm hmm. 17 Q: Page 6. Remember I had asked you 18 about this discussion that seemed to be prompted by 19 Christian B's comments? 20 "If send someone from ONAS confirms 21 their legitimacy, OPP/MNR are on the 22 ground running. They'd be more 23 appropriate." 24 A: Okay. So that was Christian 25 Buhagiar's statement on page 6 or --
2341 Q: Right. Made September -- 2 A: -- on -- on September 5th. 3 Q: Right. And -- and you agreed with me 4 that it was the view of the IMC that at this point in 5 time it was decided it was more appropriate to let the 6 OPP and the MNR communicate or attempt to communicate 7 with the occupiers. 8 And all I'm suggesting to you is that Ms. 9 Hutton's comments on September 6th are consistent with 10 that position? 11 A: I don't -- I don't -- this was -- the 12 September 5th comment was a remark made by Christian 13 Buhagiar and I believe I said that -- that there was a 14 recognition by somebody during one (1) of the meetings 15 that historically these sorts of incidents had been 16 resolved by keeping it low key and having local ministry 17 staff and OPP deal with the situation, is -- is that 18 consistent with what I said to you? 19 Q: I -- I believe it is. 20 A: Okay. 21 Q: And -- and all I'm suggesting to you 22 is that Ms. Hutton's comment that the Premier is firm, 23 that at not time should anybody but the OPP or MNR be 24 involved with any discussions is consistent with the same 25 message that had been discussed the previous day.
2351 A: I think it's harder in tone. It's 2 not -- it's not simply a recognition that that can be an 3 effective way to deal with things, it's -- it's sort of 4 taking a -- a -- limiting the range of options that might 5 be available to address this. 6 So where -- whereas the one is saying, 7 look success -- we've dealt with this successfully by -- 8 by keeping it local and low key, Ms. Hutton is coming 9 back on September the 6th and saying it's a much stronger 10 statement: 11 " The Premier is firm that at no time 12 should anybody but the OPP or MNR be 13 involved in the discussions" 14 Which seems to me to be limiting the 15 range of options that might be available for resolving 16 it. 17 Q: Okay. That -- that's your 18 interpretation of Ms. Hutton's comments? 19 A: Yes. 20 Q: Okay. And you didn't ask her to 21 further explain her comments as to what she meant by 22 this? 23 A: No, I didn't. 24 Q: Okay. And she certainly wasn't 25 suggesting that the OPP or the MNR not engage in any
2361 discussions with the occupiers? 2 A: No, she's suggesting that nobody but 3 OPP or MNR staff should. 4 Q: Okay. And then she says: 5 "Because you get into negotiations..." 6 A: And we don't want that. 7 Q: ..."and we don't want that." 8 A: Hmm hmm. 9 Q: And that's consistent with the 10 mandate of the Aboriginal Committee on Interministerial 11 Affairs? 12 A: Which is not to get into substantive 13 discussions -- 14 Q: Right. 15 A: -- about the actual issue in dispute. 16 And, I think, I said in my examination-in-chief that I 17 don't think our terms were particular well-defined. And 18 that, certainly, I left the meeting not having an 19 especially clear sense of what in particular Ms. Hutton 20 or based on what she was suggesting, the Premier would 21 have considered acceptable or not acceptable in terms of 22 the extent and scope of any discussions that might take 23 place. 24 Q: Okay. 25 A: I was not clear about that.
2371 Q: All right. And nobody asked any 2 further questions -- 3 COMMISSIONER SIDNEY LINDEN: Yes...? 4 MS. JENNIFER MCALEER: -- to follow up -- 5 COMMISSIONER SIDNEY LINDEN: Just a 6 minute. Yes, Ms. Esmonde? 7 MS. JACKIE ESMONDE: I just wanted to 8 express a concern with the characterization of the 9 mandate of the IMC not including negotiations because I 10 think it's clear from documents that we've reviewed with 11 Ms. Jai and from Ms. Jai's testimony that negotiation was 12 in fact a mandate of the IMC although there were limits 13 on what could be negotiated. 14 COMMISSIONER SIDNEY LINDEN: Negotiating 15 process as apart to substance -- 16 MS. JACKIE ESMONDE: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- is what I 18 think Mr. Rosenthal put. 19 MS. JENNIFER MCALEER: And I apologize if 20 I misspoke, but I thought I said substantive 21 negotiations? 22 THE WITNESS: No, you didn't. 23 MS. JENNIFER MCALEER: Oh, well, I -- 24 THE WITNESS: I don't -- I don't recall 25 you saying that, I'm sorry.
2381 MS. JENNIFER MCALEER: Okay. Well, let 2 me be clear then. 3 THE WITNESS: Okay. 4 5 CONTINUED BY MS. JENNIFER MCALEER: 6 Q: That it was part of the mandate of 7 the IMC that it would not engage in substantive 8 negotiations? 9 A: That's true. 10 Q: Okay. 11 12 (BRIEF PAUSE) 13 14 Q: Okay. Then the next statement by Mr. 15 Allen on the same page: 16 "MNR views this as a police issue. MNR 17 would prefer to take a back seat at 18 this point." 19 Do you recall Mr. Allen making that 20 comment? 21 A: I don't specifically recall Mr. Allen 22 making that comment. What I recall is that there seemed 23 to be in the September 6th meeting a sort of -- less of a 24 desire on the part of MNR staff to be placing MNR front 25 and centre in dealing with this issue.
2391 Q: I think you had said it was 2 consistent with a shift in tone from the MNR? And I 3 wanted to ask you -- 4 A: Did -- did I say that? 5 Q: I believe you did in -- in-chief. 6 And I just wanted to ask you if -- did anybody from the 7 MNR explain as to why they may have been taking this -- 8 what you viewed as a -- a shift from the previous day? 9 A: I don't remember if anybody said 10 anything. I -- I don't recall specifically what comments 11 may have been made. My understanding, my sense, was that 12 -- is that they felt that the situation was becoming a 13 little more volatile. 14 Q: Okay. 15 A: The situation within the Park. 16 Q: And in particular I think in your 17 examination-in-chief Ms. Hensel had taken you to comments 18 that were made with respect to Park buildings being 19 broken into -- 20 A: Hmm hmm. 21 Q: -- reports of gunfire, rocks and beer 22 bottles being thrown at police officers and -- and the 23 MNR being asked to wear bulletproof vests. 24 Those are all comments that seem to have 25 been made at the September 6th meeting --
2401 A: Yes. 2 Q: -- do you recall that? 3 A: I also said that I think there wasn't 4 the kind of reaction to those reports that you might 5 normally expect because there was a sense certainly on my 6 part and I -- I have the -- the sense it was shared by 7 others that Mr. Sturdy's sources of information were not 8 entirely accurate and so there was -- I think that 9 certainly I felt that until Inspector Fox had 10 investigated those allegations and reported back to us 11 that -- that I wasn't going to get too excited about 12 them. 13 And that seemed to be -- I sensed that 14 that seemed to be the mood of other committee members as 15 well or -- or their reaction to this. I think all of the 16 statements that you've just put to me were statements 17 that were made by Mr. Sturdy. 18 Q: Okay. And did Ron Fox specifically 19 get back to you at this meeting and indicate that any one 20 (1) of those things were not true? 21 A: I'm going to refer to my notes. Let 22 me check. 23 24 (BRIEF PAUSE) 25
2411 A: Oh, you know what? I -- I made a 2 record of what Ron Fox reported back at the end of the 3 September 5th meeting, I don't think I made a record of 4 what he reported back during the September 6th meeting. 5 But my recollection is that he quite 6 consistently reported back that -- you know I'm not -- 7 I'm not in any way diminishing the conduct of the 8 occupiers or suggesting that their occupation of the Park 9 was peaceful, only that -- that it didn't seem to be 10 quite as -- as volatile as Mr. Sturdy had been suggesting 11 based on wherever he was getting his information from. 12 Q: Okay. That -- that was your general 13 impression? 14 A: That was my impression, yes. 15 Q: Okay. But you don't recall Ron Fox 16 specifically correcting Mr. Sturdy on any one (1) of the 17 points that I just listed? 18 A: Not specifically. 19 Q: Okay. And again -- 20 A: What -- what I do recall and -- and 21 this may be -- well, is that even on September 6th in the 22 discussion about whether there was any basis for 23 proceeding with an ex parte injunction that the sense 24 seemed to be on the part of committee members that -- 25 that there just didn't seem to be the evidence to support
2421 obtaining an injunction on that kind of urgent basis. 2 Q: That again was your view? 3 A: That was my understanding, yes. 4 Q: Okay. And the fact that Mr. Allen 5 indicated that he viewed this as a police issue, I think 6 you indicated that didn't really phase you and you didn't 7 use the word, "phase," but you used language equivalent 8 to that, but you didn't particularly take note of that. 9 Is that correct or am I mis-stating your 10 evidence? 11 A: I don't remember what I said, sorry. 12 Q: Okay. Well, let me ask you the 13 question then. 14 So, when Mr. Allen indicated that this was 15 a police issue as far as the MNR was concerned did that 16 seem particularly alarming or shocking to you? 17 A: No, not at all. It was an issue that 18 was being responded to by the Ontario Provincial Police 19 and -- and it was a policing matter. 20 Q: Okay. Now, if we turn to page 5 of 21 your notes... 22 23 (BRIEF PAUSE) 24 25
2431 MS. JENNIFER MCALEER: Sorry, Mr. 2 Commissioner, I've lost track of time, this might be an 3 appropriate moment to take an afternoon break. 4 COMMISSIONER SIDNEY LINDEN: Well, I was 5 watching the time and I thought you might finish before 6 we took a break, but if you would like to take a break 7 now... 8 MS JENNIFER MCALEER: I think that would 9 be appropriate. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 We'll take a break now. 12 MS. JENNIFER MCALEER: Thank you. 13 THE REGISTRAR: This Inquiry will recess 14 for fifteen (15) minutes. 15 16 --- Upon recessing at 3:18 p.m. 17 --- Upon resuming at 3:43 p.m. 18 19 THE REGISTRAR: This Inquiry is now 20 resumed. Please be seated. 21 COMMISSIONER SIDNEY LINDEN: We're only 22 going to go to 4:30. You may not go that long but I mean 23 we're going to adjourn at 4:30. 24 MS. JENNIFER MCALEER: I'll be done 25 before then, Commissioner.
2441 COMMISSIONER SIDNEY LINDEN: That's fine. 2 3 CONTINUED BY MS. JENNIFER MCALEER: 4 Q: Ms. Hipfner, if you could turn to 5 page 4 of your notes from September 6th which is Exhibit 6 P-636. And a third of the way down the page, you see 7 what it says, "Hutton". Page 4, a third of the way down 8 the page. 9 A: Yes. 10 Q: "Hutton: Premier's office want to be 11 seen as having control..." 12 Perhaps you could read it for me. I did 13 take notes in-chief but... 14 A: "Premier's office wants to be seen as 15 having control, moving expeditiously." 16 Q: Continue. 17 A: "As a matter of principle generally 18 agree but in this situation not [it 19 should be adverse] to having this be 20 seen as a political issue. 21 Q: Thank you. And I understand that you 22 -- you testified that you took this to be suggesting that 23 the Premier would be pleased to be seen as having control 24 of the situation rather than it being left to be handled 25 by the local police and MNR.
2451 A: Yes. 2 Q: And that was your interpretation of 3 Ms. Hutton's comment? 4 A: Yes. As a public -- a matter of 5 public -- positioning in the public that's how he wanted 6 to be seen. Yes. 7 Q: Okay. Well, you're not suggesting 8 are you, that you interpreted Ms. Hutton's comments to 9 suggest that the Premier wanted to be seen as having the 10 ability or the intention to direct the police are you? 11 A: I don't know what Ms. Hutton 12 intended. 13 Q: Okay. Was that an interpretation 14 that you drew from what she said? 15 A: I'm sorry, is what an interpretation 16 that I drew? 17 Q: That she was saying that the Premier 18 wanted to be able to direct the police? 19 A: I think -- where are you -- I need 20 some context to this, I'm sorry. 21 Q: That's fine. 22 A: Sure. 23 Q: I'll go back to -- to what you said 24 in response to Ms. Hensel when you read this into the 25 record. My understanding of your evidence was:
2461 "I took her to be suggesting the 2 Premier would be pleased to be seen as 3 having control of the situation rather 4 than being left to be handled by the 5 local police and MNR." 6 A: Yes. 7 Q: Okay. And when we say 'control of 8 the situation' you're not talking about directing the 9 police are you? 10 You're talking about control of the 11 public messaging with respect to how the Government is 12 handling this situation; is that correct? 13 A: I have recorded what Ms. Hutton said. 14 I'm going to need a moment to think about this. Sorry, 15 could you rephrase your question? 16 Q: That's fine. I was just trying to -- 17 A: Yeah. I just -- 18 Q: I was just trying to understand what 19 you meant when you told Ms. Hensel what your 20 interpretation of this comment was at the time and maybe 21 -- maybe you don't recall what your impression was at the 22 time when Ms. Hutton made this comment. 23 Is that the case? 24 A: It's very difficult to relate -- 25 relate my understanding of Ms. Hutton's -- what I
2471 understood Ms. Hutton to be saying to a single comment. 2 And -- and I think my impression of what 3 I understood -- my understanding of what she wanted was 4 based in some measure on two (2) days of Ms. Hutton -- 5 meeting with Ms. Hutton and having her express views 6 about what the Premier wanted. 7 Q: Okay. So this particular comment 8 didn't create any particular impression in your mind that 9 you recall today? 10 A: It was consistent with the -- the 11 statements that Ms. Hutton made over a period of two (2) 12 days about -- about the Premier wanting -- wanting the 13 occupation to come to an end. And wanting to be seen as 14 being in control of the situation. 15 And as I said earlier, possibly Ms. Hutton 16 misunderstanding the extent to which the Premier actually 17 could control the situation. 18 Q: Okay. Let's -- let's look at what 19 the Premier could control. 20 A: Hmm hmm. 21 Q: Outside of the police operations, 22 there are other spheres in which one can act, one of 23 which is pursuing an injunction, for example; would you 24 agree with me? 25 A: Sure.
2481 Q: Okay. And that that topic of whether 2 to pursue an injunction and what kind of injunction to 3 pursue, was a large part of the discussions that were 4 taking place on September the 6th? 5 A: At the Interministerial Committee 6 meetings? 7 Q: Yes. 8 A: Yes. 9 Q: Okay. 10 11 (BRIEF PAUSE) 12 13 Q: And I'm also going to suggest to you 14 that what Ms. Hutton is conveying here is that the 15 Premier isn't afraid to speak publicly about this issue. 16 A: I expect that Ms. Hutton will be 17 testifying at some point and she can probably tell you 18 what she intended. 19 Q: Right. But I'm asking you what your 20 impressions were of what Ms. Hutton was attempting to 21 convey to the group. 22 A: Hmm hmm. My impressions of what Ms. 23 Hutton was attempting to convey to the group were that 24 the Premier wanted the occupation ended; he wanted it 25 ended quickly; there seemed to be some suggestion that he
2491 was in a position to make that decision in terms of 2 instructing police to end the occupation; that he wanted 3 to be seen in public, in the public, as -- as being in 4 control of the situation. 5 That was my overall impression of the 6 messages that Ms. Hutton was communicating to the 7 Interministerial Committee. 8 Q: Okay. Is there any place in your 9 notes, that refreshes your memory today, as to this 10 assertion that Ms. Hutton was attempting to convey, the 11 view that the Premier thought he could direct the police? 12 A: What I referred to were the notes of 13 September 5th where she seems -- Ms. Hutton seems to be 14 suggesting that the decision about how quickly the 15 occupation would be ended was something that was within 16 the ability of the Premier to decide -- 17 Q: Okay. Can you show me where -- 18 A: Hold on -- 19 Q: -- that is in your notes. 20 A: Hold on, I'm not -- 21 Q: All right. 22 A: -- finished yet. You know, what you 23 don't get, as you parse the language of what I have 24 recorded, is a sense of, as I've said, the tenor of the 25 meeting, the tenor of Ms. Hutton's remarks, the dynamics
2501 of the room and so, you know, you can ask me to point to 2 the particular place where Ms. Hutton says -- what is it? 3 Q: Oh, I believe that you had 4 indicated -- 5 A: Hmm hmm. 6 Q: -- that Ms. Hutton was conveying a 7 message that the Premier had the impression he could 8 direct the police. 9 A: Yes -- 10 Q: And whether she was -- 11 A: -- and I related it specifically back 12 to the notes that I took of the September 5th meeting, 13 not the September 6th although, I will say, the tenor of 14 that view, the suggestion that the -- the Premier had 15 some ability to decide how quickly the occupation might 16 be ended was consistent, again, throughout -- throughout 17 the second meeting. 18 Q: Okay. Can you show me where in 19 your -- 20 A: Hmm hmm. 21 Q: -- notes for September 5th that -- 22 A: Hmm hmm. 23 Q: -- Ms. Hutton gives you that 24 impression? 25 A: Hmm hmm.
2511 (BRIEF PAUSE) 2 3 A: It's at Tab 14 at page 4. 4 Q: Oh, this is the 'hawkish' comment? 5 A: Yes, the "hawkish" comment and below 6 that where Ms. Hutton says it's a clear cut issue of 7 Ontario's ownership of the property and then as I've 8 recorded imperfectly, something about how this may be the 9 time and place to move decisively. 10 That is not something that Ms. Hutton had 11 any ability to determine, or the Premier, if that's whose 12 view she was representing. 13 Q: Okay. Now, when she indicated this 14 was the time and the place to move decisively, did she 15 indicate to you or did you ask her whether she was 16 talking about directing the police or whether she was 17 talking about pursuing an injunction or whether she was 18 talking about any other number of things? 19 A: The discussion became very clear, 20 you're right, in the September 6th meeting when, as I 21 said, you know, the discussion became extremely heated. 22 It was about that issue. Nobody, as I understand it, 23 recorded that portion of the conversation and I made the 24 remarks about having learned the lessons of Oka. 25 The -- the second of the two (2) meetings,
2521 the meeting on September 6th was in very great measure 2 directed toward the issue of whether the police could be 3 directed by anybody or whether their operational 4 decisions were within their discretion exclusively. 5 Q: Okay. So with respect to September 6 5th, it's the hawkish comment that we've already 7 discussed and with respect to September 6th, it's -- 8 A: It's not the hawkish comment, it's 9 the subsequent comment. 10 Q: I'm sorry, the subsequent comment. 11 A: Yes. And then as I said, I've left 12 two (2) spaces following that before I move onto 13 recording Ron Baldwin's comment which -- which indicates 14 to me that in fact there were other remarks that I did 15 not record the tenor of which I recall being related to 16 Ms. Hutton suggesting that the Premier had some say in 17 the matter of how quickly the police might move to -- to 18 end the occupation. That is my recollection. 19 Q: You don't recall any specifics as to 20 what was said and you have no notes of it? 21 A: I have my notes and I have -- that's 22 right. 23 Q: There's nothing beyond this remark in 24 your notes though? 25 A: Except the indication that there --
2531 that more was said. 2 Q: But we don't know what was said? 3 A: I don't recall what was said but it 4 was the same tenor. 5 Q: Now if we do go to September 6th -- 6 A: Hmm hmm. 7 Q: -- and you -- you've indicated that 8 this issue was raised again. If we turn to page 7, it 9 says: 10 "Hutton" 11 It's a third of the way down the page. 12 "Hutton, my difficulty is not wanting 13 to give political direction to the 14 OPP." 15 A: Yes. 16 Q: And do you recall Ms. Hutton saying 17 that? 18 A: Very clearly. 19 Q: Okay. And you'll agree that on 20 September 6th Ms. Hutton was conveying to you that she 21 understood that the Government was not in position to 22 give political direction to the OPP? 23 A: Yes. In delivering that statement, 24 it was very clear to me that she felt boxed in by the 25 advice that she had been given.
2541 Q: Well -- 2 A: Her delivery of that statement was 3 ironic. But it certainly indicated to me that she 4 understood the nature of the advice that she had been 5 given although she didn't like it, she understood the 6 advice. 7 Q: Okay. And your impression was that 8 she felt boxed in? 9 A: That was my very very distinct 10 impression. 11 Q: Did you talk to her about it? 12 A: I did not talk to Ms. Hutton. 13 Q: And I've reviewed your notes closely 14 and I don't see any other indication on September 6th 15 that any remarks that Ms. Hutton may have made with 16 respect to the issue of police direction. 17 A: As I said, the most heated portion of 18 the conversation appears not to have been recorded by 19 anybody. And the most heated portion of the conversation 20 was directed at that very issue. As I said, I made a 21 remark about that having learned the lessons of Oka. 22 Q: I'm sorry, was there a note of that 23 in your notes? 24 A: No. There is no record of that in my 25 notes or in anybody's notes as I have been advised.
2551 Q: Okay. We can turn to page 7 please. 2 It's the bottom of page 7. 3 A: Hmm hmm. 4 Q: It says: 5 "Hutton: Premier will take lead, take 6 this back to cabinet but suspect 7 Premier will be pleased to take lead." 8 Have I read that correctly? 9 A: Yes, you have. 10 Q: Okay. And you indicated that this 11 comment surprised you, that you almost fell off your 12 chair, I believe you indicated. 13 A: Yes. 14 Q: I'm a little unclear as to why that 15 was? 16 A: No. No. That was not the comment in 17 respect of which I said I was that surprised. That was 18 her announcement on the 5th of September that she was 19 going to telephone the Premier. 20 Q: That's correct. 21 A: Yes. 22 Q: You -- you did indicate that this 23 comment did cause you some surprise. That you were 24 waiting with anticipation to see what would happen when 25 she came back --
2561 A: That's right. 2 Q: -- from speaking to the Premier? 3 A: That's right. 4 Q: And that you were somewhat 5 disappointed that she didn't share with the room whatever 6 it was that she may or may not have discussed when she 7 left the room? 8 A: Yes. 9 Q: Okay. And I'm going to suggest to 10 you that once again, what Ms. Hutton was conveying at 11 this point in time was that the Premier was comfortable 12 taking the lead with respect to public messaging? 13 A: That was my evidence. 14 Q: With respect to public messaging? 15 A: With respect to public messaging; 16 that was my evidence. 17 Q: Then I may have misunderstood. 18 A: Okay. 19 Q: And with respect to public messaging 20 was it in particular with this idea of pursuing an 21 injunction? 22 A: I think it was. Her comment is 23 proceeded by Peter Allen's remark that Hodgson -- David 24 Moran had said that Hodgson would continue to take the 25 lead as property owner, but Peter Allen said that he
2571 won't touch issues around an injunction, but we were 2 certainly talking about public messaging. Yes. 3 Q: Okay. Just one (1) moment, please? 4 5 (BRIEF PAUSE) 6 7 Q: Can we turn back to page 4 just for a 8 moment; the very top of the page where it says, "Peter 9 Allen?" 10 A: Hmm hmm. 11 Q: Where it says, "Allen," that's a 12 reference to Peter Allen. 13 "I think that's one (1) of the 14 things..." 15 A: That's right. 16 Q: "...this committee has done 17 successfully in the past is to keep 18 issues local, note..." 19 A: No, it's NB, important. 20 Q: Oh, that means important? 21 A: Hmm hmm. 22 Q: "Important that spokesperson is 23 local." Sorry, what does, "BF" mean? 24 A: Before news releases go out this 25 committee has vetted them to ensure consistency across
2581 the piece. 2 Q: Okay. And then we lead into Ms. 3 Hutton's comment, the Premier wants to be seen as having 4 -- move expeditially -- expeditiously and having control 5 of the issue. 6 A: We -- we don't move directly into 7 that comment of course, Julie Jai seems to have said 8 something that I didn't capture in its entirety. 9 Q: You don't recall what that was? 10 A: No. 11 Q: I -- I'm going to suggest to you that 12 Ms. Hutton's comments are in fact in response to Mr. 13 Allen's comments and in particular she said, "As a 14 principle generally agree?" 15 A: Yes, I agree with that. 16 Q: Okay. That she was saying as -- as a 17 principle generally we agree that the messaging should be 18 kept local which is consistent with what you were talk -- 19 A: No. 20 Q: No? 21 22 (BRIEF PAUSE) 23 24 A: I'm sorry, I interrupted your 25 question.
2591 Q: That's -- no, that's fine. 2 A: I'm sorry. 3 Q: I -- I'm going to suggest to you that 4 Ms. Hutton's comments with respect to moving 5 expeditiously and generally being viewed as having 6 control of the issue are in response to Mr. Allen's 7 comments about in the past, you know, the spokesperson 8 has been local? 9 Would you agree to me that those comments 10 -- sorry, would you agree with me that -- 11 A: I -- I don't think it's that clear. 12 Q: You -- you don't have any 13 recollection? 14 A: I don't -- I don't think it's that 15 clear, yeah. 16 Q: Okay. 17 18 (BRIEF PAUSE) 19 20 Q: Okay. If we could turn to -- well, 21 we are on page 3. I -- I want to talk to you briefly 22 about the discussions surrounding the injunction. 23 And halfway down the page where it says, 24 "Moran:". First line: 25 "Can't have OPP speak on behalf of
2601 government." 2 Next line: 3 "Harnick clear if AG is being asked to 4 seek injunction will do ASAP. With 5 respect to public carriage of the 6 issue, we are open to direction from 7 the centre." 8 Have I read that correctly? 9 A: Yes. 10 Q: Okay. Now, first of all did Mr. 11 Moran give any indication to you or others at the meeting 12 that he had attended the briefing of Mr. Harnick? 13 A: I don't recall. 14 Q: Okay. Then if we go down to the 15 bottom of the page, see where it says, "Julie?" 16 A: Yes. 17 Q: "Met with Deputy Attorney General -- 18 Attorney General this a.m. Direction 19 from AG is to apply for?..." 20 A: That's right. 21 Q: "...civil injunction ASAP." 22 Do you recall Ms. Jai making that 23 statement at the meeting? 24 A: Ten (10) years later, you know, I 25 don't.
2611 Q: Okay. I understand you don't -- you 2 don't recall this specific comment -- 3 A: Oh, but it's absolutely consistent, 4 certainly, with the -- with the discussion and I don't -- 5 I don't doubt for a moment that Julie said it. It's 6 consistent with -- 7 Q: Okay. 8 A: -- what I remember of the discussion 9 generally at the meeting. 10 Q: So your -- your impression was that 11 she had spoken to the Attorney General and the message 12 was that the Attorney General was in support of getting 13 an injunction as soon as possible? 14 A: Yes. 15 Q: And then there seems to be reports 16 from -- from other individuals. And if we turn to page 17 6, halfway down the page it says, "J.J."; I take it 18 that's Julie Jai? 19 A: Yes, it is. 20 Q: She appears to be summarizing, but 21 perhaps you can correct if that's incorrect. 22 "1. Injunction as soon as possible. 23 2. Goal is to get occupiers out of the 24 Park. 25 3. Police to exercise discretion with
2621 respect to laying charges." 2 A: Yes. 3 Q: Have I read that correctly? 4 A: Yes, you have. 5 Q: And does that accord with your 6 recollection of what Julie Jai was indicating to the 7 Committee at that point in time? 8 A: Yes. 9 Q: Okay. And then Tim McCabe. You -- 10 you read this and I won't ask you to read it again. But, 11 then Tim McCabe appears to engage in a -- in a -- or lead 12 a discussion with the Committee about injunctions and 13 interlocutory injunctions and interim injunctions. 14 A: Yes. 15 Q: Do you recall if the Committee had 16 reached a decision at that point in time whether or not 17 to proceed by way of a normal injunction or an ex parte 18 injunction? 19 A: The Committee didn't make any 20 decisions. It only made recommendations. 21 Q: I'm sorry. Had they decided to 22 recommend one course of action or -- or the other? 23 A: My recollection is that Tim's very 24 strong -- Tim was a very capable, very senior lawyer and 25 his views -- he'd clearly expressed his views during the
2631 meeting that he did not think that an application for an 2 ex parte injunction was likely to succeed. 3 And so I believe that the Committee 4 members relied on his advice and -- and felt that the 5 best course of action would be to apply for an ordinary 6 injunction. 7 Q: Okay. But do you recall that 8 discussion taking place that people were bantering around 9 the pros and cons of going ex parte versus not going ex 10 parte? Do you recall if they had dialogue about that -- 11 A: I don't know that people -- there was 12 some dialogue. Actually I don't remember whether the 13 dialogue was about normal injunctions versus ex parte 14 injunctions as opposed to injunctions of any kind versus 15 -- versus not getting an injunction. 16 Can I refer to my notes? 17 Q: Certainly. 18 A: Okay. Thanks. Yeah. I don't -- I 19 have not recorded any discussion among the Committee 20 members concerning the pros and cons or the 21 considerations attached to going one way or another. I 22 think Tim's view was fairly authoritative. 23 Q: You know what, I actually referred 24 you to the wrong place in your notes so. 25 A: Oh, I'm sorry.
2641 Q: Why -- why don't we go back to page 4 2 for a moment? Back to the middle of the page where we 3 had looked at: 4 "Julie Jai: Goals are to get 5 injunction ASAP. Removal of occupiers 6 ASAP but left to the police." 7 A: That's right. 8 Q: Okay. And then Tim McCabe appears to 9 engage in a discussion about ex parte injunctions versus 10 injunctions in the normal course. And it's indicated 11 bullet point: 12 "2. Not a case for an ex parte 13 injunction unless strong facts re 14 public safety." 15 Does that help refresh your memory as to 16 whether or not there was a discussion about an ex parte 17 injunction versus an injunction in the -- in the normal 18 course? 19 A: Not a discu -- Tim was explaining -- 20 so you've suggested there was discussion banter back and 21 forth among the Committee members. And what I -- what I 22 see is Tim simply explaining it. 23 Q: Okay. So, now that a decision has 24 been made to get an injunction as soon as possible, Mr. 25 McCabe is then informing the group as to what the options
2651 are; is that a correct summary? 2 A: No. 3 Q: Okay. 4 A: He's saying this is not a case for an 5 ex parte injunction although he does say unless there's 6 strong facts -- 7 Q: Right but he -- 8 A: -- with respect to public safety. 9 Q: -- starts -- I'm sorry, I spoke over 10 you. Sorry, did you want to add anything? 11 A: No. 12 Q: Okay. So he starts the discussion 13 off by saying, "This is not a case for an ex parte 14 injunction." Is that your recollection? 15 A: Unless. 16 Q: Unless? 17 A: There are strong facts concerning 18 public safety. 19 Q: Okay. But he doesn't simply start 20 talking about civil injunctions in the normal course? 21 There is a discussion about the possibility, at least, of 22 an ex parte injunction? 23 I'm not saying he's advocating for it, but 24 he raises it as an issue. 25 A: He raises it as an issue.
2661 Q: Okay. 2 A: By suggesting that this is not a case 3 for an ex parte injunction. 4 5 (BRIEF PAUSE) 6 7 Q: You indicated that Peter Sturdy -- 8 it's page 7. One moment please. 9 10 (BRIEF PAUSE) 11 12 Q: Actually, it's not Peter Sturdy, but 13 half way down the page where it says, "Chris" this -- 14 A: On page -- 15 Q: I'm sorry, page 7. 16 A: I'm -- 17 Q: A third of the way down the page. 18 A: Okay. 19 Q: "Chris: Critical issue will be 20 diffusing 21 tensions. Local MPP Beaubien can't do 22 that." 23 And you spoke a little bit about that in- 24 chief: 25 "Mayor: Reign of terror. Doesn't help
2671 situation. Have to find someone who 2 can diffuse tensions." 3 A: Hmm hmm. 4 Q: Now, do you recall having the 5 impression at this point in time that there was this 6 level of tension in the local community arising from the 7 occupation of the Provincial Park? 8 A: I recall that that was being reported 9 to us, yes. 10 Q: And there had been a report that the 11 municipality or somebody had issued a press release that 12 was entitled, Reign of Terror. 13 Do you recall that being discussed? 14 A: Yes. 15 Q: Okay. So, would you agree that it 16 was being reported to you that at least from the 17 municipality's perspective and the perspective, perhaps, 18 on the ground that this matter was viewed as perhaps a 19 little bit more urgent than had been your perception of 20 the matter from your office in Toronto? 21 A: I think the feeling, certainly my 22 sense, when Mr. Buhagiar reported this is that -- is that 23 the headline had been really a little bit irresponsible 24 and inflammatory and probably unnecessarily so. 25 I mean, I think the -- the gist of this
2681 discussion was that Mr. Beaubien, and possibly the mayor 2 of the municipality, were not assisting the situation by 3 -- by their use of inflammatory language and -- 4 Q: Okay. And I -- 5 A: -- other activities in the case of 6 Mr. Beaubien; that, in fact, they may have been 7 exaggerating the situation and that that -- we -- that 8 was not helpful, obviously. 9 Q: Your impression was that the mayor 10 was exaggerating the situation? 11 A: I think that that was the tone of the 12 discussion among the Committee members which is not 13 recorded here, but there was sort of a sense of, you 14 know, he's gone a little bit overboard with this reign of 15 terror thing, and it was not helpful. 16 Q: And when Mr. Peter Sturdy reported 17 that he was being -- sorry, there's a reference in your 18 notes to someone being, "peppered with phone calls"; do 19 you recall that note? 20 A: Well, I recall it because I've seen 21 it recently. 22 Q: Just give me a moment, I may find it. 23 24 (BRIEF PAUSE) 25
2691 Q: Page 2. 2 3 (BRIEF PAUSE) 4 5 Q: It's at the bottom, Peter Sturdy. 6 "Heavy equipment work being done. Park 7 [something] under area -- 8 A: "Park buildings have been broken into 9 and are being used. MNR staff are 10 being peppered with calls from locals." 11 Q: There it is. 12 A: "Concern, fear anger." 13 Q: Right. 14 A: He describes: 15 "A groundswell of anxiety and concern." 16 And then reported that somebody heard 17 automatic gunfire. 18 Q: Okay. So that's what Peter Sturdy 19 was reporting to the -- 20 A: Yes. 21 Q: -- Interministerial Committee? 22 A: Yes. 23 Q: And did you have the impression at 24 the time that he was exaggerating as well? 25 A: My impression, because he wasn't
2701 reporting events first-hand, was that his sources, the 2 sources of information that Mr. Sturdy was relying on 3 were perhaps not reporting -- reporting these things 4 entirely accurately. 5 And my view on that point, of course, was 6 based on the fact that when Mr. -- when Inspector Fox had 7 checked out the -- the -- Mr. Sturdy's reports on 8 September the 5th they had turned out to be not nearly so 9 -- so inflammatory as -- as Mr. Sturdy had suggested. 10 And as I said, during the September 6th 11 meeting Mr. Sturdy says a number of things that I think 12 in the normal course might have generated a fair bit of 13 excitement among committee members. 14 But there was a curious calm concerning 15 his statements because I think there was a sense that 16 they weren't entirely reliable and I don't -- I don't 17 suggest that Mr. Sturdy is unreliable, only that it was 18 possible that some of the accounts that he was receiving 19 were not entirely reliable. 20 Q: Okay. And did you have that 21 impression as he was providing -- 22 A: Yes. 23 Q: -- his accounts? 24 A: Yes. On September the 6th, yes. 25 Q: Okay. So you weren't waiting for
2711 confirmation from Ron Fox at that point? 2 A: I don't remember, I'm sorry. 3 Q: During your discussions with the 4 Committee as to whether to proceed with an injunction 5 and, if so, and by what manner, did the issue of tensions 6 between the Aboriginal and non-Aboriginal community 7 surface? 8 Was that a factor that was considered by 9 the Committee as to whether or not to recommend an 10 injunction? 11 A: It was something that was raised at 12 the meeting. I don't remember whether it was 13 specifically in relation to considerations around the 14 obtaining of an injunction. 15 16 (BRIEF PAUSE) 17 18 Q: Okay. If we could turn to Tab 17, 19 please? 20 21 (BRIEF PAUSE) 22 23 Q: I'm sorry it's -- 24 A: Tab -- 25 Q: -- Tab 19 -- Tab 19 in your brief;
2721 it's Tab 17 in mine. And I just wanted to quickly ask 2 you about the -- the comment that you've noted from Tim - 3 - Tim McCabe? 4 A: Hmm hmm. 5 Q: And this is at the Interministerial 6 Committee Meeting on September 7th? 7 A: Yes. 8 Q: Could you -- could you please just 9 read those two (2) first bullets for me so that I can 10 understand the handwriting? 11 A: "Concerned about the ex parte nature 12 of the proceeding intention of the 13 moving parties to provide informal 14 notice, but events overtook." 15 Q: Okay. Do you recall what Mr. McCabe 16 meant or what -- what he was conveying to the group by 17 those comments? 18 A: The first statement is not entirely 19 clear to me. I don't know whether Tim is suggesting that 20 he was concerned about the ex parte nature of the 21 proceeding or whether the judge for whom they had 22 appeared had been concerned about the ex parte nature of 23 the proceeding. 24 Q: And the second bullet? 25 A: "Intention of the moving parties to
2731 provide informal notice, but events 2 overtook?" 3 I don't know. 4 Q: You don't recall any discussion 5 around that bullet? 6 A: No. 7 Q: One (1) moment, please, Mr. 8 Commissioner? 9 10 (BRIEF PAUSE) 11 12 MS. JENNIFER MCALEER: Thank you, Ms. 13 Hipfner, those are all my questions. 14 THE WITNESS: Thank you. 15 COMMISSIONER SIDNEY LINDEN: Thank you, 16 Ms. McAleer. How long do you expect you might be? It's 17 4:15, I'm just wondering if -- how long do you think 18 you'll be? You're not going to finish in ten (10) 19 minutes or are you? 20 MS. SUSAN VELLA: Yes, she is. 21 COMMISSIONER SIDNEY LINDEN: You are? 22 Okay. If you are, then let's go. That's fine. 23 MS. JACQUELINE HORVAT: It's up to you. 24 COMMISSIONER SIDNEY LINDEN: No, I don't 25 want to rush you.
2741 2 CROSS-EXAMINATION BY MS. JACQUELINE HORVAT: 3 Q: My name is Jacqueline Horvat and I'm 4 here on behalf of Charles Harnick. 5 A: Thank you. 6 Q: Did you have any conversations with 7 Mr. Harnick on or prior to September 6, 1995 regarding -- 8 A: No. 9 Q: -- Ipperwash? 10 A: I'd never had any discussions with 11 Mr. Harnick, period -- 12 Q: Okay. 13 A: -- prior to that day. 14 Q: Now at the Blockade Committee on the 15 morning of September 6th do you recall anyone stating 16 that the Attorney General directed or stated that an 17 injunction not be sought on an ex parte basis? 18 A: I don't understand your question, I'm 19 sorry. 20 Q: Did anybody say, for example Ms. Jai, 21 that she had a briefing with Mr. Harnick earlier that 22 morning? 23 A: Yes. 24 Q: Did she say Mr. Harnick stated that 25 we will not be seeking an ex parte injunction?
2751 A: No. 2 Q: If she had stated that, would that be 3 in your notes? 4 A: There are gaps in my notes. 5 Q: I'll take you to Tab 17. 6 A: Thank you. 7 Q: Page 3. 8 9 (BRIEF PAUSE) 10 11 Q: Towards the bottom it says: 12 "Julie: direction from AG is to apply 13 for a civil injunction ASAP". 14 A: Julie didn't specify what kind of 15 injunction. 16 Q: But if she had, would you have 17 included but not an ex parte, or words to that effect? 18 A: I hope that I would have accurately 19 recorded Judy -- Julie's remarks and that if she had 20 indicated what kind of injunction the Attorney General 21 had instructed that clock lawyers get, that would have 22 been recorded in my notes. 23 Q: But given that that was an important 24 issue in this meeting, and if Mr. Harnick had said we 25 will not seek an ex parte injunction, would that have
2761 been -- I mean, I would think that would stick with you 2 or appear somewhere in your notes? 3 A: We were still at the stage in that 4 meeting of getting updates from people who had 5 interesting information to convey at that point. 6 We had not moved into a substantive 7 discussion about injunctions and that doesn't happen, 8 actually, until page 4 in my notes. 9 Q: So -- 10 A: So -- so I don't think I was 11 necessarily alive to the issue at that point of -- of ex 12 parte and ordinary injunctions. 13 At any rate, I don't think it was raised 14 at that point by Julie. 15 Q: So you wouldn't expect that a 16 decision had already been made, not to go ex parte and 17 that was communicated to Julie? 18 A: I have really difficult -- 19 Q: Oh, I'm sorry. 20 A: -- at time with your negative 21 questions. 22 Q: A decision had not been made at that 23 point to go -- 24 A: I don't -- 25 Q: -- one way or the other?
2771 A: I don't know. 2 Q: If it had, would Julie have conveyed 3 that to the meeting? 4 A: You'd have to ask Julie. 5 Q: Sorry, would you expect Julie to 6 convey that to the meeting, if she had known a decision 7 had been made? 8 It's just that in all the notes, in your 9 notes, throughout, it says direction from AG is to apply 10 for an injunction ASAP. 11 A: Yes, but ASAP doesn't necessarily 12 mean ex parte. 13 Q: Correct. But then Mr. -- Mr. McCabe 14 engages in the pros and cons of an ex parte injunction. 15 A: Well, he explains it, yes. 16 Q: What I'm asking -- 17 A: After Julie has made her comment 18 about having obtained directions from the Attorney 19 General to get an injunction ASAP. 20 My -- I think I recorded this pretty much 21 as Julie said it. 22 Q: Okay, thank you. 23 24 (BRIEF PAUSE) 25
2781 Q: Now, you weren't involved in any 2 preparation of materials for the injunction? 3 A: No, I wasn't. 4 Q: Do you recall if all of the facts 5 surrounding the occupation and the injunction were known 6 at that meeting that morning, or were you still waiting 7 for information? 8 MS. KIM TWOHIG: I'm not sure the Witness 9 can answer that question. 10 COMMISSIONER SIDNEY LINDEN: I'm not 11 sure. She said she wasn't involved in the preparation of 12 it but... 13 THE WITNESS: I think I can't answer the 14 question because I don't understand it. 15 MS. JACQUELINE HORVAT: Okay, I'm sorry. 16 I'll move on. 17 18 CONTINUED BY MS. JACQUELINE HORVAT: 19 Q: You said earlier that the Committee 20 just made recommendations and wouldn't make any 21 substantive decisions, correct? 22 A: What -- substantive decisions about 23 what? 24 Q: About whether or not to proceed with 25 an injunction? They would simply recommend --
2791 A: The Committee made recommendations, 2 that's right. 3 Q: Right. So if the Committee 4 recommended that an injunction be sought -- 5 A: Yes. 6 Q: -- on that morning -- 7 A: Yes. 8 Q: -- and facts changed throughout the 9 day -- 10 A: Hmm hmm. 11 Q: Would the Committee have to reconvene 12 to recommend a specific type of injunction? 13 A: No, and in fact as I said earlier, 14 ministers were not bound by the recommendations of the 15 Committee and could override them and make decisions that 16 weren't at all consistent with the recommendations of the 17 Committee. 18 Q: Thank you, those are all my 19 questions. 20 A: Thank you. 21 COMMISSIONER SIDNEY LINDEN: I think the 22 next two (2) examiners are very brief. I think we should 23 continue them as long as we can. 24 MS. KATHERINE HENSEL: Yeah, and there's 25 -- the next Counsel for Minister Hodgson is five (5) --
2801 has indicated five (5) minutes. 2 COMMISSIONER SIDNEY LINDEN: Yes, and 3 there's no one here for Mr. Runciman, I want to confirm 4 that again. 5 MS. ERIN TULLY: No, actually I don't 6 have any questions -- 7 COMMISSIONER SIDNEY LINDEN: No, no one's 8 here for Mr. Runciman. Counsel for Ms. Hudson (sic). 9 MS. ERIN TULLY: Oh, sorry, I don't have 10 any questions any more. 11 COMMISSIONER SIDNEY LINDEN: Oh, fine, 12 then we just keep moving. 13 MS. SUSAN VELLA: Mr. Sulman are you 14 prepared? 15 COMMISSIONER SIDNEY LINDEN: Counsel for 16 Mr. Beaubien? 17 18 (BRIEF PAUSE) 19 20 MR. DOUG SULMAN: Mr. Commissioner -- 21 COMMISSIONER SIDNEY LINDEN: I forgot 22 your estimate, Mr. Sulman. 23 MR. DOUG SULMAN: Well, it wasn't very 24 long and it -- 25 COMMISSIONER SIDNEY LINDEN: That's fine.
2811 MR. DOUG SULMAN: So, I think we'll be 2 able to finish by 4:30. 3 COMMISSIONER SIDNEY LINDEN: Let's try 4 and do it. 5 6 CROSS-EXAMINATION BY MR. DOUG SULMAN: 7 Q: Ms. Hipfner, my name is Douglas 8 Sulman and I represent Mr. Beaubien, we've spoken about 9 him and you know he was the local MPP at the time of this 10 incident. 11 And the area that I want to talk to you 12 about is fairly discrete, although it may have opened up 13 a bit in the last fifteen (15) -- fifteen (15) minutes 14 with some of your comments. 15 This morning when you were talking to Ms. 16 Hensel, she was asking you about the September 6th 17 meeting and as I understood it, an MNR spokesman, and 18 really all I wanted to do was clarify some of this in my 19 mind for -- for purposes of later argument that we'll 20 have to make some time in the future. 21 And you were speaking -- she was speaking 22 to you about the September 6th meeting and you were 23 commenting, as I understand it from my notes, that the 24 MNR spokesman at the meeting was saying that the local 25 MPP, Marcel Beaubien, is not to the person to carry out
2821 communications, locally in the area; correct? 2 A: Hmm hmm. 3 Q: Yes? 4 A: Yes. 5 Q: Unfortunately -- 6 A: I'm sorry -- 7 Q: -- I -- 8 A: Yes, of course, I forgot. 9 Q: Okay. 10 A: It's late and I'm tired, yes. 11 Q: And my recollection is that you also 12 said that the MNR person, and this is all coming from MNR 13 as I understood it -- 14 A: Could you -- could you refer me to 15 the -- 16 Q: I think I can, it's -- 17 A: -- location in my notes, so that I -- 18 Q: It will be Tab 17, and it's Exhibit 19 P-636. Now, the exact page I -- I can't get you to, but 20 I bet we can. 21 A: Yes, it's at page 7 of my notes of 22 the meeting of September 6th, 1995. 23 Q: Okay. Have you -- do you have that 24 in front of you now? 25 A: I do.
2831 Q: And my question was simply -- I just 2 want to understand, it's the MNR person you're referring 3 to who's giving his view that -- 4 A: Chris ? 5 Q: -- Mr. Beaubien isn't the person. 6 A: We're at page 7? 7 Q: I believe so. 8 A: Perhaps you could read -- 9 Q: What isn't clear -- I don't have it 10 in front of me, you do. What is -- 11 A: The reference to Mr. Beaubien -- 12 Q: Right. 13 A: In my notes at page 7 appears to have 14 been made by Chris who I assume to be Chris Buhagiar. 15 Q: Right. I was trying to understand 16 whether it was Jeff Bangs, was really the point of my 17 question or -- 18 A: No, it was -- 19 Q: -- whether it was -- 20 A: -- Chris. 21 Q: Chris. 22 A: It was Chris Buhagiar. 23 Q: Okay. 24 A: My notes indicate that it was Chris 25 Buhagiar.
2841 Q: Okay, very good, thank you. And as I 2 understood your evidence this morning, you said orally 3 that you had -- I don't know who spoke to you, but you 4 said you had information or you were told between the 5 September 5th and September 6th meetings that you'd been 6 told of Mr. Beaubien's efforts with regard to diffusing 7 tensions? 8 A: Yes. 9 Q: Okay. So my notes are correct, at 10 least to that extent? 11 A: Yes. 12 Q: Thank you. And so as I understand 13 your evidence, it wasn't that he hadn't tried to diffuse 14 tensions in the previous days in the Ipperwash area, it 15 was rather that he tried but hadn't been successful? 16 A: That's my recollection. 17 Q: Okay, thank you. Those are all -- 18 A: Thank you. 19 Q: I told you we'd be discrete and small 20 and that's it. 21 A: I appreciate it. 22 Q: Thank you. 23 A: Thank you. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much. I think Anna Perschy is next and this would
2851 probably be a good time to adjourn for the day and the 2 week, and reconvene on Monday morning at the usual time 3 of 10:30. It's been a long day. 4 Are you all right to be here on Monday 5 morning at 10:30? 6 THE WITNESS: Yes. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 all very much. 9 MS. KATHERINE HENSEL: Thank you, Ms. 10 Hipfner, thank you, Commissioner. 11 12 (WITNESS RETIRES) 13 14 THE REGISTRAR: This Public Inquiry is 15 adjourned until Monday, September 19th, at 10:30 a.m. 16 17 --- Upon adjourning at 4:27 p.m. 18 19 Certified Correct 20 21 22 ________________________ 23 Dustin Warnock 24 25