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 19th, 2005 25
21 Appearances 2 Derry Millar ) 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 ) (np) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) (np) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) 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 ) (np) Municipality of 3 David Nash ) 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 ) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) (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 ) 19 Erin Tully ) (np) 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 EILEEN LOUISE HIPFNER, Resumed 6 Cross-Examination by Ms. Anna Perschy 9 7 Cross-Examination by Ms. Andrea Tuck-Jackson 172 8 Cross-Examination by Mr. David Nash 184 9 Cross-Examination by Mr. Basil Alexander 204 10 11 12 13 Certificate of Transcript 263 14 15 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-720 Document Number 3001523. Fax from 4 Marisa Mills to J. McFadden, L. Van 5 Biesbrouck, J. Kennedy and R. Baldwin, 6 May 21/93 containing two (2) ONAS 7 information notes and a letter to chief 8 Tom Bressette from C.J. (Bud) Wildman, 9 Minister responsible for native affairs. 14 10 (previously reserved numbers P-713 and P-714) 11 P-713 Document Number 2001225. Memorandum from 12 Eileen Hipfner to inspector D. Scott Re. 13 Authority and obligations of th OPP with 14 respect to trespass by Stony Point 15 community members on civil defence 16 establishment at Ipperwash, June 02/'93. 30 17 P-714 Document Number 2001239. Fax from E. 18 Hipfner to Superintendent T. D. Wall - 19 Revised memorandum Re. Authority and 20 Obligations of the OPP with respect to 21 trespass by Stony Point community members 22 on civil defence establishment at 23 Ipperwash. June 11/'93. 41 24 25
71 EXHIBITS (cont'd) 2 No. Description Page 3 P-721 Document Number 3001512. Meeting notes - 4 Interministerial Officials Committee on 5 Aboriginal emergencies meeting, 6 June 25/'93. 47 7 P-722 Document Number 3001685. Briefing note 8 for the information of the Attorney 9 General and the Deputy Attorney General 10 updated June 30/'93. 65 11 P-723 Document Number 2000683. Fax from Ms. E. 12 Hipfner to D/S Sgt. G. A. Mathews Re. 13 Ipperwash Beach Land dispute, 14 August 05/'93. 71 15 P-724 Document Number 1004189. E-mail to Yan 16 Lazor from E. Hipfner Re. Discussion 17 with Peter Allen, April 18/'96. 170 18 P-725 Document Number 1004188. E-mail from 19 E. Hipfner to A. Karakatsanis and Yan 20 Lazor Re. Pinery Provincial Park, 21 April 18/'96. 171 22 P-726 Supplementary occurrence report June 23 12/95 and Sgt. Gary Ouellette notes 24 May 19/'95. 180 25
81 EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-727 Document Number 1012311. 4 Memorandum to P. Sturdy from R. 5 Vancart Re. Staff safety - 6 Ipperwash Prov. Park, Sept 06/'95. 249 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
91 --- Upon commencing at 10:38 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning, everybody. 8 MS. KATHERINE HENSEL: Good morning, 9 Commissioner. Good morning, Ms. Hipfner. 10 Commissioner, I just wanted to take this 11 moment to advise you that David Nash, Counsel for the 12 Municipality of Lambton Shores is in attendance and would 13 like to take a few minutes after the OPPA, or OPP rather, 14 in the cross-examination list to ask a few questions of 15 Ms. Hipfner. 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MS. KATHERINE HENSEL: And I believe Ms. 18 Perschy representing -- 19 COMMISSIONER SIDNEY LINDEN: Ms. 20 Perschy's up now. 21 MS. KATHERINE HENSEL: Yes. 22 23 EILEEN LOUISE HIPFNER, Resumed; 24 25 CROSS-EXAMINATION BY MS. ANNA PERSCHY:
101 Q: Good morning, Commissioner. Good 2 morning, Ms. Hipfner. 3 A: Good morning. 4 Q: My name is Anna Perschy and I'm 5 counsel for Deb Hutton. 6 A: Okay. 7 Q: And I just have a few questions for 8 you this morning. 9 10 (BRIEF PAUSE) 11 12 Q: You testified in-chief that on May 13 21st, 1993 you attended a meeting of the Interministerial 14 Committee which dealt in part with Ipperwash Park and the 15 Ipperwash Camp. 16 Do you recall giving that testimony 17 previously? 18 A: Yes, I -- I remember attending a 19 meeting in the spring of 1993, I don't recall the date. 20 Q: And you testified that you don't have 21 a specific recollection of this meeting which was about 22 twelve (12) years ago, so I'm going to try and tweak your 23 memory just a little bit. 24 If you could turn to the minutes of the 25 meeting which are at Tab 4. This is Document Number
111 3001716? 2 3 (BRIEF PAUSE) 4 5 Q: It's Exhibit P-712 and your name is 6 listed as one (1) of the attendees at the meeting. And 7 that's at I believe page 8. 8 And if you could turn, Ms. Hipfner, to 9 page 3 under the heading, C) Camp Ipperwash and Ipperwash 10 Provincial Park. 11 Do you -- do you see that heading? 12 A: Yes. 13 Q: There's a reference to John Van West 14 providing an overview of two (2) information notes that 15 had been recently prepared by him. Could you turn to the 16 information note which is at the back of this exhibit. 17 It's the one that's entitled, Ontario Native Affairs 18 Secretariat Information Note, Topic Chippewas of Kettle 19 and Stoney Point and Ipperwash Provincial Park. 20 I'm going to suggest to you that you were 21 provided with information along the lines that are 22 outlined in this document about the history of the Park 23 at this meeting. You were advised of the surrender of 24 the original territories, the establishment of the two 25 (2) reserves in 1827, the surrender for sale of a portion
121 of the Stoney Point Reserve and its subsequent sale to a 2 private individual in or about 1929 and then the resale 3 of those lands to Ontario in 1936 and the later creation 4 of the Provincial Park. 5 Do you recall getting that overview? 6 A: I have no independent recollection of 7 that today. 8 Q: But, you have no reason to doubt that 9 you -- that you provided an overview along this line? 10 A: Absolutely none of course. 11 Q: Yes. The copy of the minutes doesn't 12 contain both information notes and I'm going to provide 13 you with another document. And for the assistance of My 14 Friends it's Document Number 3001523. It's a fax from 15 Marisa Mills and has -- it's sent to Jack McFadden, Lee 16 Van Biesbrouck, Jack Kennedy and Rob Baldwin. 17 And underneath it says, "Special comments 18 for today's blockade meeting". And if you look at the 19 minutes that you -- 20 A: Ms. Perschy, I'm sorry, do I have 21 that? Ms. Perschy...? 22 Q: You will -- you will in just a 23 moment. If you look at the minutes of the May 21st, 1993 24 meeting, you'll note that the individuals that I just 25 referred to appeared to have attended by conference call.
131 And I'm going to suggest to you that you 2 would have received a copy of this information note and a 3 copy of the other information note as well. And I take 4 it you -- you don't have a recollection either way. 5 A: I haven't looked at the note yet. 6 Q: That's fair enough. The note that's 7 attached to this fax cover sheet is entitled, Ontario 8 Native Affairs Secretariate Information Note, Topic, 9 first one is, Chippewas of Kettle and Stoney Point and 10 Ipperwash Provincial Park. And a few pages later -- and 11 this appears to be the same information note that's 12 included in Document 3001716 which are the minutes of May 13 21st. 14 But behind that there's a second 15 information note and it's entitled, Ontario Native 16 Affairs Secretariat Information Note, Topic, Chippewas of 17 Kettle and Stoney Point claim to Camp Ipperwash. 18 Do you see that note? 19 A: I do. I found it. 20 Q: And I'm going to suggest to you that 21 you were provided with this information about the history 22 of the Camp at this meeting. 23 A: That may be. I don't dispute it but 24 I don't have an independent recollection of it. 25 Q: Could we have the -- make the fax
141 with both information notes made the next exhibit? 2 THE REGISTRAR: P-730, Your Honour. 3 4 --- EXHIBIT NO. P-720: Document Number 3001523. Fax 5 from Marisa Mills to J. 6 McFadden, L. Van Biesbrouck, 7 J. Kennedy and R. Baldwin, 8 May 21/93 containing two (2) 9 ONAS information notes and a 10 letter to chief Tom Bressette 11 from C.J. (Bud) Wildman, 12 Minister responsible for 13 native affairs. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: If you turn back to the minutes of 17 the meeting, after the paragraph -- two (2) paragraphs we 18 were looking at with respect to the overview provided by 19 John Van West, there's another paragraph that refers to a 20 letter sent from Minister Wildman to elected Chief 21 Bressette. 22 And it states that the letter sets out 23 Ontario's position on the matter of Camp Ipperwash Lands 24 and indicates Ontario's support for the return of these 25 lands to the First Nation.
151 And I take it you have no reason today to 2 think that you didn't receive this information that's 3 recorded in these minutes. 4 A: I have no reason to think that I 5 didn't, but again, I have no independent recollection of 6 it. 7 Q: And going further down there's a 8 reference to an update, apparently by Ron Baldwin, with 9 respect to the Park. And I'm going to suggest that as is 10 indicated in these minutes, at this meeting you were 11 advised that the Stoney Point Group or Stoney Point Group 12 had told Park staff that they intended to set up an 13 information booth at the Park and that they were going to 14 have some of the campsites. 15 So, they wanted some of them split, an 16 equitable division of the campground sites between the 17 First Nation and the Province and they wanted a 18 commemorative plaque and a memorial service. 19 And again, I take it -- do you have any 20 recollection of these -- 21 A: None, no. 22 Q: -- these discussions? But you don't 23 -- you don't dispute that -- 24 A: No, not at all. 25 Q: -- you had been given that
161 information? 2 A: That's right. 3 4 (BRIEF PAUSE) 5 6 Q: And I'm going to suggest that there 7 are some differences between, from your knowledge, based 8 on your attendance at this meeting, between what took 9 place in 1993 with respect to the Park and what took 10 place in 1995. 11 For example, in 1993 the occupiers didn't 12 take over the whole Park and prevent access to it by Park 13 officials and others. You know that, I take it? 14 A: Yes. 15 Q: And in 1993 no one cut down trees or 16 created a barricade or burnt picnic tables? No one 17 smashed a police cruiser? You -- you don't have -- 18 A: I'm not aware that any of those sorts 19 of things occurred in 1993. 20 Q: Fair enough. So, I'm going to 21 suggest to you that from your knowledge the action -- the 22 actions of the occupiers were much more limited with 23 respect to 1993 than what occurred in September of 1995? 24 A: That's consistent with my 25 recollection, yes.
171 Q: And as is indicated in these minutes, 2 in 1993 this group clearly indicated to Park staff what 3 they intended to do in some detail? 4 A: Where do you see that? 5 Q: It's referenced in the heading under 6 -- with respect to Ron Baldwin. 7 "The Stoney Point First Nation 8 indicated to Park staff on Thursday 9 that they would be moving a structure", 10 et cetera, et cetera. 11 So, information was provided in advance? 12 A: That -- that appears to be the case, 13 yes. 14 Q: And again that was different than 15 what occurred in September of 1995 from your knowledge? 16 A: I don't know what -- 17 Q: What -- 18 A: -- I knew going into the September 19 5th meeting about any suggestion in advance that the 20 Stoney Pointers might occupy Ipperwash Provincial Park. 21 I simply don't remember what I knew at the time. 22 Q: Okay. But, you did indicate that in 23 September of 1995 the occupiers didn't explain the basis 24 for any claim to the Park, correct? 25 A: That's true, yes.
181 Q: And according to these minutes 2 there's a reference to a bailiff's order served by the 3 First Nation asserting the First Nation ownership of Park 4 lands back in 1993? 5 A: I'm -- I'm sorry, where do you see 6 that? 7 Q: Sorry, it's at page 4. 8 A: Hmm hmm. Yes, I see that. 9 Q: So, the -- the fourth full paragraph? 10 A: Yes. 11 12 (BRIEF PAUSE) 13 14 Q: And I'm going to suggest to you that 15 in 1993 the First Nations people did provide some detail 16 with respect to the basis of their claim? 17 A: I -- I do see a reference to the fact 18 that the order, the bailiff's order, is based upon an 19 1850 statute which has been repealed, so there seemed to 20 be some understanding or some communication about the 21 basis. 22 Q: Fair enough. 23 A: Yeah. Again I have no independent 24 recollection of that. 25 Q: Now, at this meeting, according to
191 these minutes, the following concerns appear to have been 2 expressed. 3 A: And what page are you at? 4 Q: And I'm still at page 4. 5 A: Thank you. 6 7 (BRIEF PAUSE) 8 9 Q: Just a moment. 10 Looking at the same paragraph there's the 11 concern that if Ontario does nothing, the First Nations' 12 position will be reinforced. 13 Do you see that reference just with 14 respect to the -- just after the -- the sentence 15 regarding the bailiff's order? 16 A: I -- I see that sentence. 17 Q: And just above that there's a 18 reference to the concern that there may be a booth 19 erected and that that would be contrary to the Provincial 20 Parks Act. 21 Do you see that reference? 22 A: It says: 23 "However, [excuse me] there's a 24 possibility that a structure may be 25 erected contrary to the Provincial
201 Parks Act." 2 Q: And just after that sentence there's: 3 "There have also been reports that 4 warriors from other areas may join the 5 First Nation presence." 6 A: I -- I see that, too. 7 Q: So, again do you have any 8 recollection of these concerns being raised at this 9 meeting? 10 A: I have no recollection, no 11 independent recollection of any of the details of this 12 meeting. 13 Q: But, don't -- again you have no 14 reason to believe that these minutes are incorrect? 15 A: None. 16 17 (BRIEF PAUSE) 18 19 Q: And according to these minutes, again 20 still at page 4, MNR and the Province were still 21 reviewing Ontario's title and the claim? 22 A: I -- I'm sorry, where do you see 23 that? 24 Q: Page 4, the first -- the first 25 sentence, the first full paragraph.
211 A: It says that the First Nation claims 2 are currently under review. I don't see a reference to - 3 - to title. 4 Q: Well, if you go -- if you go to page 5 5 under the heading, Ipperwash Provincial Park, there's a 6 statement: 7 "Andrew McDonald questioned whether 8 there's any issue regarding the 9 validity of the 1928 Surrender for 10 Sale." 11 So, I'm just -- it was an open question -- 12 A: Yes. I see that. 13 Q: -- at that point. At least with 14 respect to that issue. There was a question raised with 15 respect to that issue according to the -- 16 A: Yes. Yes. 17 Q: And then below that, again on page 5, 18 there's a reference to Tim McCabe stating that: 19 "A longer term response must be 20 developed regarding 1) the bailiff's 21 order and 2) the basis of the claim to 22 the Park, i.e., the surrender." 23 And at the bottom Yan Lazor suggests: 24 "And it's agreed [apparently] that a 25 working group be established to examine
221 these and other issues related to the 2 camp and to the Park." 3 Do you see those references? 4 A: I -- I do. 5 Q: And -- 6 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 7 do I take it that you're putting these matters to the 8 Witness in the hope that it will trigger her memory? 9 MS. ANNA PERSCHY: Yes. 10 COMMISSIONER SIDNEY LINDEN: So far it 11 hasn't. 12 MS. ANNA PERSCHY: So far it hasn't. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: You testified that you don't recall 16 being assigned to a working group, but do you recall that 17 one was in fact established? 18 A: I -- I don't even recall that, Ms. 19 Perschy. 20 Q: And I take it then you don't recall 21 what work it did? 22 A: No, I don't. 23 Q: I take it that you did know that by 24 mid- June of 1993, the Government advised the occupiers 25 and Chief Tom Bressette that the Province's title was
231 valid and the First Nation claim had no merit? 2 A: I have no independent recollection of 3 that. 4 Q: All right. Well, could you take a 5 look at P-215 and P-241? 6 A: What tab are they at? 7 Q: They're not tabs. They're previous 8 exhibits. They're two (2) letters -- sorry, they're two 9 (2) letters. 10 One is a letter to Maynard Travis George 11 dated June 14th, 1993, that's P-215. And P-241 is a 12 letter to Chief Tom Bressette dated June 14th, 1993. And 13 if you could just take a moment to quickly review both 14 letters. 15 16 (BRIEF PAUSE) 17 18 Q: Does this refresh your recollection 19 that the Province of Ontario communicated to the 20 occupiers their position that the Province's title was 21 valid and that the First Nation's claim had no merit back 22 in the spring/summer of 1993? 23 A: No. 24 Q: Is it possible that it's something 25 that you did know at the time but you've simply forgotten
241 now? 2 A: I don't even know that. 3 Q: You don't know? All right. I'm 4 going to suggest to you, Ms. Hipfner, that by the time 5 you attended the committee meeting on September 5th, 1995 6 you certainly knew that Ontario had already reviewed its 7 title to the Park? 8 A: I don't know what I remembered on 9 September 5th, 1995. As you can appreciate these events 10 are long ago. 11 Q: Could you turn -- well, let me back 12 up. You testified that you prepared a legal opinion 13 regarding the obligations and authority of the police 14 with respect to the situation at the Camp and if you 15 could turn to Tab 8 of Commission Counsel documents. 16 17 (BRIEF PAUSE) 18 19 Q: This is a fax cover sheet from you -- 20 actually let -- let me back up. 21 If you could turn back, my apologies, to 22 the minutes of May 21st, 1993. 23 A: And again they were at Tab? 24 Q: I believe it was Tab 4. 25
251 (BRIEF PAUSE) 2 3 Q: If you could turn to page 4, the 4 heading, "OPP (Doug Scott)." 5 A: I'm there. 6 Q: Do you see that? It states: 7 "Currently at Camp Ipperwash there are 8 approximately fifteen (15) tents and 9 six (6) people. Maynard George has 10 assured the OPP that there will be no 11 escalation of activities. The First 12 Nation maintains a record of people at 13 this site and has provided OPP access 14 to the record." 15 And then there's the two (2) paragraphs 16 that were referred to by Commission Counsel dealing with 17 the meeting between the OPP and the Military and the 18 Military's intention to rely on the OPP to make any 19 decisions regarding possible removal of the occupiers and 20 the legal issues that that raised. 21 I take it that, as set out in these 22 minutes, one (1) of the issues was the constitutional 23 question -- 24 A: Hmm hmm. 25 Q: -- as to who is responsible, given
261 that the Camp was under Federal jurisdiction? 2 A: Who -- who could deal with the 3 occupation, yes. 4 Q: And as I think you mentioned in your 5 examination-in-chief, you don't independently recall the 6 advice that you gave, but you don't dispute that you made 7 the comments that are noted in -- in these minutes? 8 A: I don't dispute that I made those 9 comments, but I also don't remember them. 10 Q: And you advised, as is recorded here, 11 that -- the fact that the Camp was under Federal 12 jurisdiction may not mean that it wasn't still subject to 13 provincial application and that the Trespass to Property 14 Act and the common law might apply? 15 A: Yes. 16 Q: And with respect to the Trespass to 17 Property Act and the common law possibly applying, what 18 did you mean? 19 A: I don't remember providing this 20 advice and so I don't -- I'm sorry, I don't currently 21 recall what I would have been addressing, what I would 22 have meant. 23 Q: Well what was your understanding at 24 the time regarding a government's legal rights under 25 either the common law or the Trespass to Property Act?
271 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 2 Twohig...? 3 OBJ MS. KIM TWOHIG: I object to this 4 question on the basis that it's not relevant. We know 5 what advice was given and Ms. Hipfner has testified that 6 she doesn't recall giving the advice, so further 7 questions about what she might have remembered about her 8 legal advice in 1993 -- 9 COMMISSIONER SIDNEY LINDEN: 1993. 10 MS. KIM TWOHIG: -- is not helpful, in my 11 submission. 12 MS. ANNA PERSCHY: Well, this Witness has 13 indicated she doesn't dispute giving the advice and she 14 doesn't recall what specifically she may have said and 15 I'm simply trying to probe this a little bit further to 16 see if we can get an understanding as to what she would 17 have communicated by understanding -- by asking her 18 questions as to what was her understanding at the time. 19 COMMISSIONER SIDNEY LINDEN: Well -- 20 MS. KIM TWOHIG: She said that she has no 21 understanding -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MS. KIM TWOHIG: -- of what she meant at 24 the time. 25 COMMISSIONER SIDNEY LINDEN: She's
281 already said that. I'm -- I'm not sure that probing it 2 any further is going to be any more helpful at this 3 point, Ms. Hipfner (sic). You have the letter, you have 4 the minutes and you have the statement and she doesn't 5 dispute that she made it, she just can't recall it. 6 MS. ANNA PERSCHY: And -- and I'm simply 7 trying to probe a little bit further to see -- see if we 8 can -- if I can get her to tweak her memory. 9 COMMISSIONER SIDNEY LINDEN: You asked 10 her and she doesn't have any recollection. I think 11 that's sufficient. 12 MS. ANNA PERSCHY: Well, let me just make 13 one (1) further suggestion and effort to tweak her 14 memory. 15 COMMISSIONER SIDNEY LINDEN: I'm not sure 16 what you mean by one (1) more suggestion. 17 MS. ANNA PERSCHY: Well, I'm just going 18 to -- well I'll ask the question and -- and we'll see. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: Do you recall if you advised that the 22 Government, as a property owner like a private citizen, 23 has the right to a strict access to its property, but 24 perhaps in some situations there may be some limitations? 25 A: I have no recollection of the advice
291 that I provided at the meeting. Or -- or -- 2 Q: All right. 3 COMMISSIONER SIDNEY LINDEN: I think 4 you've probed this area far enough, Ms. Hipfner (sic). 5 MS. ANNA PERSCHY: I'm moving on. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: Could you turn to the memorandum 9 dated June 2, 1993 which is at Tab 5 of Commission 10 counsel's documents? 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: Which 15 paragraph on Tab 5? 16 MS. ANNA PERSCHY: I'm sorry? 17 COMMISSIONER SIDNEY LINDEN: Which 18 paragraph on Tab 5 are you refer -- on page 5, I'm sorry. 19 Which -- 20 MS. ANNA PERSCHY: It's Tab 5. 21 COMMISSIONER SIDNEY LINDEN: Yes. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: And for the assistance of My Friends, 25 it's Document Number 2001225.
301 And as is indicated on the front page -- 2 well first of all this is a memo from you to Inspector 3 Doug Scott, Special Advisor First Nations Policing to the 4 Deputy Solicitor General and Deputy Minister of 5 Correction Services. 6 A: Yes. 7 Q: And it's re. Authority and 8 obligations of the OPP -- 9 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 10 Hensel...? 11 MS. KATHERINE HENSEL: Just for the 12 record, we should clarify that over the weekend we 13 received advice from the Province and the OPP that 14 privilege had been waived over this document. 15 So, an exhibit number had been reserved 16 for it on the basis that privilege might be waived. If 17 we could enter that document now as Exhibit P-713, I 18 believe. 19 MS. ANNA PERSCHY: Yes. 20 COMMISSIONER SIDNEY LINDEN: P-713 21 22 --- EXHIBIT NO. P-713: Document Number 2001225. 23 Memorandum from Eileen 24 Hipfner to inspector D. Scott 25 Re. Authority and obligations
311 of th OPP with respect to 2 trespass by Stony Point 3 community members on civil 4 defence establishment at 5 Ipperwash, June 02/'93. 6 7 MS. ANNA PERSCHY: I thank My Friend. 8 9 CONTINUED BY MS. ANNA PERSCHY: 10 Q: And this is re. Authority and 11 obligations of the OPP with respect to trespass by Stoney 12 Point community members on civil defence establishment at 13 Ipperwash? 14 A: Yes. 15 Q: Now, on the first page of this memo 16 it indicates that you had been advised that Stoney 17 Pointers continued to occupy part of the Camp and the 18 Military might want this situation to be ended and might 19 ask the OPP to assist them, right? 20 That -- that's information that you 21 received according to this document? 22 A: Yes. 23 Q: And you understood that the OPP was 24 seeking advice as to their authority to intervene and 25 their obligation to do so, correct?
321 A: Yes. 2 Q: And that was the reason why you wrote 3 this memo to Inspector Doug Scott? 4 A: Yes. 5 Q: And at the time, he was -- he was 6 essentially the predecessor to Ron Fox? 7 A: Yes, he was, right. Not the 8 immediate predecessor but a predecessor. 9 Q: No. I appreciate that. And I 10 understand that you also copied this memo to Detective 11 Superintendent Tom Wall and Inspector Gwen Boniface, 12 correct? 13 A: That's right. 14 Q: And we've heard evidence that 15 Superintendent Wall was Inspector Carson's superior at 16 the time. I take it that you knew who he was? You're 17 copying him on the memo. 18 A: I knew who he was. I don't know what 19 relationship he had to Inspector Carson. 20 Q: But, you knew that he was an 21 operational officer involved in the situation at Camp 22 Ipperwash? 23 A: Yes. No, I don't know that he was 24 involved in the situation at Camp Ipperwash. I know he 25 was an operational officer, but I don't know --
331 Q: Well, what did you -- 2 A: -- what -- 3 Q: Why -- why were you sending him a 4 copy of this memo? 5 A: I don't remember now why I would have 6 copied him. 7 Q: Well, I'm going to suggest to you 8 that you copied him on it because he had some involvement 9 with respect to the situation at Camp Ipperwash. 10 A: That's entirely possible, but I don't 11 recall. 12 Q: And again, just coming back to the -- 13 how this all came about, according to your memo Doug 14 Scott had raised this issue of David Spring who was 15 senior Counsel with the Ministry of Sol Gen and it was 16 Mr. Spring who raised it with you? 17 That was -- that was the chain of -- 18 A: That appears to be the case, yes. 19 Q: And you prepared this memorandum and 20 advised that there were three (3) approaches which would 21 likely be employed to remove the trespassers from the 22 Camp, correct? 23 A: Yes. 24 Q: Injunction; the Criminal -- sorry , 25 the Criminal Code provisions dealing with preventing and
341 arresting for breach of the peace, Sections 30 and 31, 2 and also forcible entry and detainer, Section 72 and 53; 3 and third, Trespass to Property Act? 4 A: Yes. 5 Q: Those were the three (3) approaches? 6 A: Yes. 7 Q: And I take it that in preparing this 8 memo, you reviewed those statutes? 9 A: It would be my practice, normally, to 10 review statutes that I was going to address in a legal 11 opinion. 12 Q: Now, breach of the peace isn't 13 defined in the Criminal Code, but you make reference to 14 it and I take it that you knew that a breach of the peace 15 refers to a situation where harm is actually or likely be 16 done to a person on his presence to his property, or a 17 person is in fear of being so harmed, through either an 18 assault, a riot, unlawful assembly or some other 19 disturbance. 20 That's what you understood? 21 You did have an understanding of breach of 22 the peace? 23 A: I -- 24 MS. KIM TWOHIG: Sorry. Mr. 25 Commissioner, I'm concerned that this is not helpful to
351 the Commission, nor is it fair to the Witness for her to 2 be cross-examined on what she took into consideration and 3 what she knew back in 1993 when she prepared a legal 4 opinion. 5 Certainly the legal opinion is available 6 and we can all read it. Thank you. 7 MS. ANNA PERSCHY: I'm simply asking if 8 this Witness has a recollection and understanding of some 9 of the terms that she employed in -- in writing this 10 memorandum. 11 COMMISSIONER SIDNEY LINDEN: We have -- 12 MS. ANNA PERSCHY: If she doesn't have a 13 recollection -- 14 COMMISSIONER SIDNEY LINDEN: No. 15 MS. ANNA PERSCHY: -- she doesn't have a 16 recollection. 17 COMMISSIONER SIDNEY LINDEN: We have the 18 legal opinion. The legal opinion is before us, I think. 19 MS. ANNA PERSCHY: I -- I appreciate 20 that, but that the memorandum doesn't define that term 21 and I was simply asking -- 22 MS. KATHERINE HENSEL: I'm sorry. 23 Commissioner, you have indicated to Counsel, to My Friend 24 that it's not helpful, this line of questioning. So, 25 with respect I would --
361 COMMISSIONER SIDNEY LINDEN: Yes. I 2 would think if the legal opinion weren't available there 3 might be some value in some questions, but I don't think 4 that this is helpful at all. 5 We have the legal opinion before us and 6 that's sufficient. 7 MS. ANNA PERSCHY: I appreciate that. I 8 was simply asking with respect to some of the language in 9 -- in the opinion what was this Witness' recollection. 10 COMMISSIONER SIDNEY LINDEN: Well, I 11 don't think that that's helpful at this point. Would you 12 please move on. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MS. ANNA PERSCHY: 17 Q: Have you had an opportunity to review 18 this memorandum, Ms. Hipfner? 19 A: Yes, though I have more carefully 20 reviewed the June 11th -- are we on the June 11th 21 memorandum? 22 Q: No, we're still on the -- 23 A: The June 11th memorandum that 24 superceded this one. 25 Q: Yes. No, with respect to the June
371 2nd, have you had an opportunity to review it? 2 A: Yes, I have. 3 Q: And with respect to the issue of the 4 Trespass to Property Act, which is provincial 5 legislation, I understand that you concluded that there 6 was no clear authority that there were reasonable 7 arguments to be made that it is enforceable on Canadian 8 Air force bases, or you could apply a provincial law if 9 the Federal Government agreed? That's the -- 10 Q: I'd like a moment just to review 11 those provisions. 12 COMMISSIONER SIDNEY LINDEN: Well, are -- 13 MS. ANNA PERSCHY: It's at page 5. 14 COMMISSIONER SIDNEY LINDEN: -- are you 15 reading from paragraphs -- 16 MS. ANNA PERSCHY: No, I -- 17 COMMISSIONER SIDNEY LINDEN: No. 18 MS. ANNA PERSCHY: -- I'm simply -- I'm 19 simply -- I'm simply summarising. I just wanted to make 20 sure that I understood -- 21 COMMISSIONER SIDNEY LINDEN: What she 22 said? 23 MS. ANNA PERSCHY: What she had said in 24 the opinion. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
381 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: It's under the heading, Enforcing 4 the -- 5 A: I -- I see it and I'm reading it. 6 Yes, thank you. 7 8 (BRIEF PAUSE) 9 10 A: I indicated that I had consulted with 11 the Constitutional Law and Policy Division of the 12 Ministry of the Attorney General concerning the 13 application of the Trespass to Property Act on the -- on 14 the Military Base and that counsel from that division had 15 told me that the Trespass to Property Act had been found 16 to apply on federally regulated lands and in particular 17 airports, but that there was no clear authority regarding 18 the enforceability of the Act on a Canadian Forces Base. 19 But reasonable argument's to be made that 20 it is enforceable on that property and that given federal 21 permission, there's no obstacle to the enforcement, 22 generally, if otherwise applicable provincial laws by 23 provincial police on federally owned lands and then I go 24 on to talk about assuming that the Act applies on 25 Military Bases, certain things.
391 Q: Fair enough. 2 A: Yes. 3 Q: And then you went on, at the end of 4 this opinion, to conclude that in light of the 5 obligations which the province has statutorily mandated - 6 - mandated for its police officers, it is most difficult 7 to conclude that members of the OPP could elect not to 8 enforce the Criminal Code in the situation that existed 9 at Ipperwash, even where the party requesting OPP 10 assistance has the authority and as a practical matter, 11 the expertise to engage in self-help? 12 A: The first thing I said, however, is 13 that in light of the political dimension of the situation 14 it would certainly be desirable for the OPP and the 15 Canadian Forces to cooperate and develop an approach that 16 is sensitive to the position of all parties. 17 Q: Oh, no, no. I -- I appreciate that. 18 A: Okay. 19 Q: Your understanding at the time then 20 was that the obligation on the police arises where the 21 police are given, or otherwise obtain information that 22 provides them with reasonable grounds to believe that 23 certain conduct has occurred which constitutes an 24 offence? 25 A: I'm sorry, could you repeat your
401 question? 2 Q: Well, put it -- put it simply. You 3 understood that, as a result of the -- their statutory 4 obligations, the police have an narrow discretion as to 5 when and how they enforce the law, but not whether they 6 will enforce it? 7 A: I -- I wouldn't -- I think the use of 8 the word, "narrow," was perhaps unfortunate and 9 inaccurate. I think they actually have a broad discretion 10 as to how they enforce the laws, but not as to whether 11 they will do so. 12 I think my point was that their discretion 13 is restricted to how they will enforce the law, but not 14 whether they will do so. 15 Q: Fair -- fair enough. And -- and I 16 simply referred to the word, "narrow," -- 17 A: Hmm hmm. 18 Q: -- which was repeated earlier in your 19 summary at page 5 -- 20 A: Hmm hmm. In reviewing this 21 memorandum the word, "narrow," caught my attention 22 because it's -- it's not consistent with -- with my 23 understanding of the breadth of discretion that the OPP 24 or any police service has to -- to respond to situations 25 requiring the enforcement of the law.
411 Q: Fair enough. But it's when and how 2 rather than whether? 3 A: That's right. 4 Q: Right. And you then revised this 5 memorandum and sent another one on -- which is dated June 6 11th, 1993 and I believe that one is at Tab 8? 7 MS. KATHERINE HENSEL: And I can also 8 advise, Mr. Commissioner, that the OPP and the Province 9 or counsel for the OPP and the Province have advised that 10 both of their clients have waived privilege on this 11 particular document, which is Inquiry Document Number 12 2001239. 13 We had reserved Exhibit Number P-714 for 14 that document. If that could be entered as -- as Exhibit 15 P-714 at this time. 16 COMMISSIONER SIDNEY LINDEN: Thank you. 17 18 --- EXHIBIT NO. P-714: Document Number 2001239. Fax 19 from E. Hipfner to 20 Superintendent T. D. Wall - 21 Revised memorandum Re. 22 Authority and Obligations of 23 the OPP with respect to 24 trespass by Stony Point 25 community members on civil
421 defence establishment at 2 Ipperwash. June 11/'93. 3 4 CONTINUED BY MS. ANNA PERSCHY: 5 Q: And this document, it's actually -- 6 it's a fax -- it's Document Number 2001239 -- 7 A: Hmm hmm. 8 Q: -- and it's a fax cover sheet from 9 you to Superintendent T. D. Wall dated June 11th at 10 around 12:18 p.m. And then attached is the memorandum 11 from you to Inspector Doug Scott, now dated June 11th, 12 1993 and again you sent this document, you copied this 13 document to the same people as the previous memo. 14 You copied it to Ms. Gwen Boniface and 15 Superintendent T. D. Wall; is that right? 16 A: Inspector Gwen Boniface and 17 Superintendent Tom Wall. 18 19 (BRIEF PAUSE) 20 21 Q: And in regard to the revision, I 22 believe that you indicated in-chief that in the interim 23 you had found some obscure defence control access 24 regulations, correct? 25 A: Yes.
431 Q: And I take it that you made the 2 revision because the regulations, the defence control 3 regulations, had an advantage over the Trespass to 4 Property Act, because they avoided this whole issue of 5 whether or not provincial law applied to a Federal 6 Military Base? 7 A: No. 8 Q: No? 9 A: It wasn't a question of advantage. 10 It was a question of -- of -- and I'm not a 11 constitutional lawyer and I would have done this in 12 conjunction with constitutional law, the regulation 13 essentially trumping the Trespass to Property Act. 14 So it wasn't a question of advantage, it 15 was a question of which law applied -- 16 Q: I see. 17 A: -- in the circumstances and so I 18 removed the option of the Trespass to Property Act, 19 because it appeared to be incorrect in light of the -- 20 the regulation that I'd located. 21 If both had applied, I would have 22 indicated that and would have talked about the potential 23 conflict between the two (2) and how that might be 24 resolved as a legal matter. 25 Q: I see. So, my understanding then is
441 that the -- what you're saying is that the Trespass to 2 Property Act didn't apply to the Federal Military Base 3 because, constitutionally, it was trumped by the 4 existence of these regulations? 5 A: That's my understanding. My -- the 6 legal opinion wasn't intended as a strategic piece, but 7 simply to law out the options and if the Trespass to 8 Property Act had continued to be an option despite the, 9 you know, the discovery of the National Defence Act 10 regulation, it would have been included in this piece. 11 Q: I understand. If you could turn to 12 Tab 10 of Commission Counsel's documents. It's the 13 minutes from the Interministerial Committee meeting on 14 June 25th, 1993. 15 A: I have that. 16 17 (BRIEF PAUSE) 18 19 Q: And, Ms. Hipfner, your name appears 20 as one of the attendees at this meeting? 21 A: Yes, it does. 22 Q: So, I'm going to suggest to you that 23 you did attend this meeting? 24 A: I expect that's the case, yes. 25 Q: And I take it from your answer you
451 don't, at this point, independently recall? 2 A: I don't. 3 Q: Well, if you look at the first page, 4 there's an update with respect to Camp Ipperwash 5 provided, apparently, by Bill Crate. 6 A: Bill Crate had probably, by this 7 time, succeeded Doug Scott as the special advisor on 8 First Nations policing. 9 Q: I see, so he was the special advisor 10 to the deputy Solicitor General and the deputy of 11 Correctional Services? 12 A: I believe that was the case, yes. 13 Q: And the third bullet, under the 14 heading "Updates, Camp Ipperwash" indicates that: 15 "With respect to the occupation of the 16 camp, the Department of National 17 Defence will not, [and that's 18 underlined], seek a Court injunction as 19 a strategy to resolve this conflict. 20 DND have said that there can be no 21 negotiation with non-elected 22 individuals, a stance which has been 23 taken previously in relation to other 24 matters of the same nature and DND 25 believes that the OPP should use
461 Section 41 of the Criminal Code, having 2 to do with eviction of trespassers by 3 force, if necessary, on their behalf. 4 The OPP expect that this course of 5 action will be requested by DND in the 6 near future. 7 The OPP has received confirmation that 8 DND will forewarn them of any action 9 they intend to take and the OPP would 10 then attempt to negotiate with the 11 natives." 12 And I take it that that was information 13 that you received at this meeting? 14 A: I have no independent recollection of 15 receiving this information. 16 Q: But you don't -- you don't dispute 17 that -- 18 A: I don't dispute -- 19 Q: -- given these minutes you would have 20 received this information. You just don't recall? 21 A: I don't recall. 22 Q: If these minutes from June 25th, 1993 23 could be made the next exhibit. 24 THE REGISTRAR: P-721, Your Honour. 25 COMMISSIONER SIDNEY LINDEN: I'm sorry,
471 P-71-- 2 THE REGISTRAR: Twenty-one (21), 721. 3 COMMISSIONER SIDNEY LINDEN: 721. 4 5 --- EXHIBIT NO. P-721: Document Number 3001512. 6 Meeting notes - 7 Interministerial Officials 8 Committee on Aboriginal 9 emergencies meeting, June 10 25/'93. 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: Inspector Carson has testified before 14 this Inquiry and he indicated that -- and this was back 15 in May 11, 1993 -- sorry, he indicated that back in May 16 of this year he testified about a number of meetings and 17 conversations that he had with the military. 18 And he testified that he asked for legal 19 opinions in regards to Section 41 of the Criminal Code 20 and that Chief Superintendent Coles suggested that he 21 follow up in that regard with Superintendent Wall. 22 And my question to you is: Do you recall 23 discussing Section 41 of the Criminal Code with either 24 Superintendent Wall or Inspector Carson at this time? 25 A: I'm not an expert in criminal law.
481 And as I indicated, the legal advice that we provided to 2 the Ontario Provincial Police was legal advice about 3 civil law matters rather than Criminal Code matters. 4 I realize that I've made reference in the 5 legal opinion that we've just been looking at to some 6 Criminal Code matters, but any extensive discussion about 7 Criminal Code matters would not take place with the 8 lawyers in the Legal Services Branch of the Ministry of 9 the Solicitor General and Correctional Services. 10 It would occur with Crown attorneys or 11 with Crown Law Office Criminal. 12 13 (BRIEF PAUSE) 14 15 Q: Just a moment, Commissioner. If the 16 Witness could be provided with P-397 which are the 17 handwritten notes of Deputy Commissioner John Carson. 18 A: Ms. Perschy, can I return the two (2) 19 earlier -- the two (2) exhibits we looked at earlier? 20 Q: Yes. By -- by all means. 21 A: Thank you. 22 Q: If you could turn to Tab 3 of these 23 notes, page -- first page 73 and I'll just draw your 24 attention to the fact that there's a handwritten notation 25 at the bottom of the page --
491 A: I'm sorry. I don't -- I'm at Tab 3 2 but I -- but I don't know -- 3 Q: Sorry. There's -- there's numbers at 4 the top of the page. 5 A: Thirty-six (36), for the first one? 6 Q: Seventy-three (73). 7 A: I'm sorry I don't see numbers like 8 that. Tab 3? 9 Q: Tab 3, yes. 10 A: I'll see if I've got the right book. 11 Q: It's -- it's the book -- 12 A: Handwritten notes Deputy Commissioner 13 John Carson 1990? 14 Q: 1990, 1993 and 1994. 15 A: And I'm looking at Tab 3. 16 Q: Tab 3. 17 A: Down at the bottom right hand corner 18 does it say, Volume Number 11, OPP IMPLP Number 2002730, 19 page 1 of 12? 20 Q: Well you -- you had made a reference 21 to page 36 at -- at the first page -- 22 A: At the upper left hand corner -- 23 Q: Yes. 24 A: -- where it says page 36? 25 Q: Yes. If you keep going --
501 A: Yes? 2 Q: -- again at the top and in similar 3 handwriting -- 4 A: Oh, I see. 5 Q: -- many pages in -- 6 A: Yes, many pages in. 7 Q: -- there's page 73. 8 A: Okay. 9 10 (BRIEF PAUSE) 11 12 Q: And at the bottom of page 73 there's 13 a handwritten notation and it says, "Eileen Hipfner, 14 Legal Services 314-3509." 15 A: Hmm hmm. 16 Q: Is that the phone number for the 17 Legal Services Branch, Ms. Hipfner, or is that your phone 18 number? 19 A: We had direct lines so it was 20 probably my phone number at the time. 21 Q: On the next page, under the entry -- 22 this is page 74 -- 23 A: Hmm hmm. 24 Q: -- under the entry for Friday, 25 25 June 1993, there's a reference:
511 "10:30 [something. I think it's] 2 telephone call to --" 3 A: Hmm hmm. 4 Q: "-- Superintendent Wall." 5 A: Hmm hmm. 6 Q: And it states: 7 "Advised him of meeting. Requested he 8 attend at 12:30 with myself. Concerned 9 re. legal [something]. Also, his 10 experience [something -- some --] 11 nature blockades." 12 And then: 13 "Superintendent Wall requests 14 [something] contact Eileen Hipfner, 15 Legal Services." 16 And again the phone number. 17 "Ask for legal opinion re. Section 41 18 and DCAS (phonetic) [and I believe 19 that's a reference to the Defence 20 Control Access Regulations] by noon if 21 possible." 22 Now, I suggest that you did have some 23 communications either with Inspector Carson directly or 24 through Superintendent Wall or Doug Scott during this 25 time in regards to these matters?
521 Does this assist your recollection? 2 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 3 Hensel? 4 MS. KATHERINE HENSEL: I am sorry to 5 interrupt, but I'm having some difficulty, Mr. 6 Commissioner, in understanding how the interests of Ms. 7 Perschy's client, who by all accounts thus far was not 8 involved in this situation in 1993, relate to this line 9 of questioning from this Witness and this evidence. 10 And -- and also, you know, it's -- it's 11 not clear how -- how this line of questioning is relevant 12 to this -- the events at issue. 13 Perhaps, if Ms. Perschy could assist us 14 with -- with that? 15 COMMISSIONER SIDNEY LINDEN: I'm trying 16 to give Ms. Perschy some latitude, but I see Ms. Twohig 17 has an observation. Let's hear it and then we'll hear 18 from Ms. Perschy. 19 MS. KIM TWOHIG: Yes, the waiver 20 regarding solicitor/client privilege in 1993 was with 21 respect to the legal opinions that have already been 22 referred to in evidence. 23 COMMISSIONER SIDNEY LINDEN: Those two 24 (2) documents, yes. 25 MS. KIM TWOHIG: Yes, but was not
531 intended to be broader than that -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MS. KIM TWOHIG: -- with respect to this 4 timeframe. And I'm just concerned that she is asking the 5 Witness about legal advice that may or may not have been 6 given to Inspector Carson at that time. And perhaps we 7 could just clarify if that's where the question is going. 8 COMMISSIONER SIDNEY LINDEN: Well, let's 9 see where Ms. Perschy's going with this line of 10 questioning. 11 You're just trying to establish now that 12 there was some contact? 13 MS. ANNA PERSCHY: Yes. 14 COMMISSIONER SIDNEY LINDEN: And then 15 where are you going? 16 MS. ANNA PERSCHY: Well, I was -- I was 17 going to ask this Witness if she recalled having this 18 conversation and what they discussed and if I can be 19 permitted to do so. I mean, this is -- this is -- we've 20 had extensive evidence with respect to the Camp and -- 21 and what occurred at the Camp. 22 We've heard from Inspector Carson in 23 regards to that and this -- this connects directly back 24 to the legal opinions that I made reference to a little 25 bit earlier. I -- I'm not sure how this doesn't meet the
541 very low threshold for relevance with respect to the 2 Inquiry and I can assure you that it -- it -- its 3 significance may not be apparent at this juncture, but it 4 is relevant to -- to the issues that are before you. 5 COMMISSIONER SIDNEY LINDEN: It isn't 6 apparent at the moment, but let's see where you're going. 7 What question are you going to ask now? 8 MS. ANNA PERSCHY: At this point -- 9 COMMISSIONER SIDNEY LINDEN: Because I 10 think this may be the end of it. 11 MS. ANNA PERSCHY: -- at -- at this point 12 I was simply asking -- or I was suggesting to this 13 Witness, given -- given these notations in Inspector 14 Carson's notes and his evidence that he did ask for legal 15 opinion that -- 16 COMMISSIONER SIDNEY LINDEN: Well, she -- 17 MS. ANNA PERSCHY: -- Ms. Hipfner did 18 have some communications either with him or 19 Superintendent Wall or perhaps with Doug Scott to whom 20 she had sent the previous two (2) memos. 21 COMMISSIONER SIDNEY LINDEN: Does she 22 recall that? 23 MS. ANNA PERSCHY: And -- and -- and does 24 she recall that? 25 COMMISSIONER SIDNEY LINDEN: Ask the
551 question then. Let's see if she recalls that and then 2 we'll decide how to deal with it. 3 THE WITNESS: I don't recall -- 4 COMMISSIONER SIDNEY LINDEN: All right 5 then, let's -- 6 THE WITNESS: -- having any discussions 7 with anybody about my legal opinion after it was 8 produced. 9 COMMISSIONER SIDNEY LINDEN: I think we 10 should leave that area and move on to something else. 11 MR. JULIAN ROY: Mr. Commissioner? I'm 12 in one of those rare positions where I may be in 13 agreement with Ms. Perschy on this. 14 COMMISSIONER SIDNEY LINDEN: Well, when 15 the time comes, I'll hear from you, Mr. Roy. 16 MR. JULIAN ROY: All right. Because one 17 of the things that the last answer raises is whether or 18 not Ms. Hipfner has any notes of discussions with 19 Inspector Carson -- 20 COMMISSIONER SIDNEY LINDEN: Well -- 21 MR. JULIAN ROY: -- about that issue. 22 And in my respectful submission, legal advice that -- 23 COMMISSIONER SIDNEY LINDEN: No. 24 MR. JULIAN ROY: -- Inspector Carson gets 25 about what his obligations are when he has an injunction,
561 are very relevant, in my respectful submission. 2 COMMISSIONER SIDNEY LINDEN: It might be. 3 As I say, when you get your chance to question, you will. 4 You want to move on, Ms. Hipfner (sic)? 5 MR. JULIAN ROY: I apologize for 6 interrupting and I thank you for hearing me, Mr. 7 Commissioner. 8 THE WITNESS: Actually if I can suggest 9 something? My legal opinion was produced on June 11th. 10 This conversation took place on June 25th. As I read 11 this notation, somebody is simply asking for a copy of a 12 legal opinion that was produced on June 11th. 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: Well, you don't have any recollection 16 -- you're speculating at this point as -- as to what 17 communications you may have had or what you may have 18 done. 19 A: I don't recall any communications 20 with anybody, after I produced the legal opinion. 21 COMMISSIONER SIDNEY LINDEN: I don't find 22 it helpful to ask witnesses questions about matters that 23 they don't recall. If you can refresh their memory by 24 referring to a document, that's helpful. 25 MS. ANNA PERSCHY: Well, until I ask the
571 question I have -- 2 COMMISSIONER SIDNEY LINDEN: Well, that's 3 why I let you ask it. 4 MS. ANNA PERSCHY: -- no information at 5 all. 6 COMMISSIONER SIDNEY LINDEN: That's why I 7 let you ask it, because it might have that effect. 8 MS. ANNA PERSCHY: If the Witness could 9 be provided with P-402, please? 10 11 (BRIEF PAUSE) 12 13 THE WITNESS: Thank you. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: And this is a letter that was 17 provided by Major general Commander Vernon to 18 Commissioner O'Grady on June 29th, 1993 and my simple 19 question, and I'll just give you a minute to look at the 20 letter, is simply did you know that DND had sent this 21 request? 22 A: I -- I don't think I've ever seen 23 this letter. 24 Q: I wasn't asking if you'd sent -- if - 25 - if you had seen the letter, my simple -- my simple
581 question was, did you know that a letter had been sent? 2 Whether or not you actually saw the letter? 3 A: I don't recall. 4 5 (BRIEF PAUSE) 6 7 Q: Can you go back to the minutes of 8 June 25th, 1993. 9 A: And which tab is -- are they at? 10 Q: I believe it was Tab 10. 11 A: Yes. 12 13 (BRIEF PAUSE) 14 15 COMMISSIONER SIDNEY LINDEN: This is the 16 exhibit we were just looking at, 721, right? This is 17 Exhibit -- 18 MS. ANNA PERSCHY: Yes. 19 COMMISSIONER SIDNEY LINDEN: -- 721 that 20 we were just looking at? 21 MS. ANNA PERSCHY: Yes, Commissioner. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MS. ANNA PERSCHY:
591 Q: At page 2 -- 2 A: Hmm hmm. 3 Q: -- there's the statement in response 4 to this threatened action by DND. 5 "Maynard George has verbally admitted 6 that he would invade the Park in 7 retaliation." 8 Do you see that reference? 9 A: I do. 10 Q: And again, you were advised of that 11 in June of 1993? Do you have any recollection being 12 advised of that? 13 A: I don't recall being -- 14 Q: But you don't -- 15 A: -- advised of that. 16 Q: -- dispute it again. 17 A: Absolutely. If it's in the minutes, 18 I assume it was discussed at the meeting. 19 Q: Well, if you go on in these minutes, 20 under "MNR" there's a reference to -- on the question of 21 native presence in the Park. This is under the heading 22 with respect to Ron Baldwin for MNR. 23 "On the question of native presence in 24 the park, pending eviction from the 25 camp, MNR has approval to fully
601 evacuate the Park if the OPP suggests 2 this action." 3 And again, do you have any recollection of 4 being advised of plans to evacuate? 5 A: I have no recollection of any -- I 6 don't remember being at this meeting. I don't recall 7 anything that was discussed at this meeting. 8 Q: I'm going to suggest to you that, as 9 of 1993, you understood that there was a link between 10 what happened at the camp and what could happen at the 11 Park. 12 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 13 Twohig...? 14 MS. KIM TWOHIG: The witness has 15 testified repeatedly that she doesn't remember anything 16 about this but she doesn't dispute what's in the minutes. 17 And we can all read the minutes so -- 18 COMMISSIONER SIDNEY LINDEN: I've had 19 enough. But I'm not sure what -- 20 MS. ANNA PERSCHY: That's a different 21 question. 22 COMMISSIONER SIDNEY LINDEN: -- else we 23 need. But she may remember something but I don't think 24 it's useful to just -- 25 MS. ANNA PERSCHY: It's -- it's a
611 different question. It's -- it's not simply referring to 2 what's in the minutes. I'm simply putting to this 3 Witness that she understood, as of 1993, that there was a 4 link between the camp and the Park and that what happened 5 at the camp could affect what happened at the Park. 6 COMMISSIONER SIDNEY LINDEN: That's got 7 nothing to do with these minutes. It's just a question 8 you're asking -- 9 MS. ANNA PERSCHY: Yes. 10 COMMISSIONER SIDNEY LINDEN: -- did she 11 know that there was a link? 12 MS. ANNA PERSCHY: They -- given that 13 she's acknowledged that she would have received the 14 information that's indicated in these minutes -- 15 COMMISSIONER SIDNEY LINDEN: Although she 16 doesn't remember. 17 MS. ANNA PERSCHY: -- that she doesn't 18 remember but she doesn't dispute it, it's -- it's a 19 different question. 20 THE WITNESS: And I'm sorry, what is that 21 questions again? 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: The question was that, as of 1993, 25 you understood that there was a link --
621 COMMISSIONER SIDNEY LINDEN: Did -- oh, 2 okay I'm sorry. 3 4 CONTINUED BY MS. ANNA PERSCHY: 5 Q: -- between the two, what happened at 6 the camp could affect the Park? 7 A: I have no recollection of what I 8 understood or thought about that matter in 1993. 9 COMMISSIONER SIDNEY LINDEN: And your 10 client was not involved in any of these matters at that 11 time as I understand it too. 12 MS. ANNA PERSCHY: No. No. But -- 13 COMMISSIONER SIDNEY LINDEN: All right. 14 Carry on. I don't want to have you explain things to -- 15 you indicated -- I forgot how long you indicated at the-- 16 MS. ANNA PERSCHY: I thought I would be a 17 couple of hours, Commissioner. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 So you've still got a bit to go. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: Just one last point with respect to 23 these minutes, they go on -- the minutes go on to 24 indicate under the heading, "Pressure for a Federal 25 Injunction."
631 A: And what page is that at? 2 Q: This is at page 4. 3 A: I see it, yes. 4 Q: That ONAS the OPP and MNR wanted the 5 Federal Government to bring an injunction and the view 6 was that the Deputy Ministers of ONAS and the Ministry of 7 the Solicitor General should meet and then that the 8 Deputy Minister of Sol Gen would call her counterpart at 9 the -- at the Federal Government. 10 And given what you've already said, I -- I 11 take it you don't recall receiving that information but 12 you don't dispute that you would have received it? 13 A: That's correct. 14 Q: And that's what actually happened, 15 correct? The Deputy Minister contacted her counterpart 16 and ultimately the Federal Government decided not to do 17 anything; do you recall that? 18 A: No, I don't recall that. 19 Q: Could you look at document -- it's a 20 new document so let me just give you a copy. For the 21 assistance of My Friends, it's Document Number 3001685. 22 23 (BRIEF PAUSE) 24 25 Q: It's a briefing note for the
641 information of the Attorney General and the Deputy 2 Attorney General. And at page 4 -- 3 COMMISSIONER SIDNEY LINDEN: What's the 4 date of the note? 5 MS. ANNA PERSCHY: Sorry. It's updated 6 June 30th, 1993. 7 THE WITNESS: Do I have it in my binder? 8 MS. ANNA PERSCHY: Oh, my apologies. 9 COMMISSIONER SIDNEY LINDEN: June 30th 10 '93, yes? 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: And I'm looking at page 4. And on 14 the last page there's a reference to an opinion from the 15 Legal Services Branch given to the OPP. And then there's 16 a quotation which appears to come from your June 2nd and 17 June 11th memos. 18 A: Yes, it does. 19 Q: Did you provide that memo to the 20 Ministry of the Attorney General? 21 A: I don't remember. 22 Q: But you don't dispute that that's 23 likely, given that it's appearing in this document? 24 A: It -- I provided it to the Attorney 25 General or somebody provided to the ministry of the
651 Attorney General. 2 Q: Well, do you recall who you provided 3 your opinion to, other than Doug Scott who was with -- 4 A: No. If the -- if individuals weren't 5 copied on the face of the memorandum, I wouldn't have any 6 knowledge of who they -- the opinion was copied to. 7 Q: Well, I'm asking as to whether or not 8 you provided it to anybody else. 9 A: I have no idea who I provided it to. 10 Q: Could we make this document the next 11 exhibit? 12 THE REGISTRAR: P-722. 13 14 --- EXHIBIT NO. P-722: Document Number 3001685. 15 Briefing note for the 16 information of the Attorney 17 General and the Deputy 18 Attorney General updated June 19 30/'93. 20 21 COMMISSIONER SIDNEY LINDEN: I'm going to 22 take a short break now. I'm going to take a morning -- 23 is this a good time for you to take a break or -- 24 MS. ANNA PERSCHY: Yes, absolutely 25 Commissioner.
661 COMMISSIONER SIDNEY LINDEN: -- are you 2 in the middle of a point? Would you like to wait a 3 minute or two (2)? 4 MS. ANNA PERSCHY: No, no that's all 5 right. 6 COMMISSIONER SIDNEY LINDEN: Well, we'll 7 take a break -- 8 MS. ANNA PERSCHY: We can break now. I'm 9 in your hands, Commissioner. 10 COMMISSIONER SIDNEY LINDEN: We'll take 11 the morning break now. 12 THE REGISTRAR: This Inquiry will recess 13 for fifteen (15) minutes. 14 15 --- Upon recessing at 11:44 a.m. 16 --- Upon resuming at 12:02 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed. Please be seated. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 Yes, Ms. -- Ms. Perschy as you know, we have a rule in 22 our rules that require when you're going to be asking a 23 witness about a document, that you provide it in advance 24 so the Witness -- 25 MS. ANNA PERSCHY: Yes.
671 COMMISSIONER SIDNEY LINDEN: -- can read 2 it; that's to be fair to the Witness, it's also -- 3 MS. ANNA PERSCHY: Yes. 4 COMMISSIONER SIDNEY LINDEN: -- to help 5 us with efficiency. If the Witness sees the document, 6 she doesn't have to look at it for the first time and it 7 may obviate the necessity of taking the Witness through 8 the document clause by clause, or paragraph by paragraph. 9 I understand that that wasn't done in this 10 case and I'm not going to stop you from continuing, but 11 I'm raising it so that in future, if any Counsel wish to 12 ask a witness about a document, the reason the rule is 13 there is to be fair to the Witness and to help us to move 14 forward with some efficiency. 15 MS. ANNA PERSCHY: No, I appreciate that, 16 Commissioner. Most of the documents that I referred to 17 were, in fact, in Commission Counsel's documents and so I 18 assumed that she had looked at them. 19 But there were some that I had neglected 20 to provide to her in advance, even though I provided 21 notice to My Friends and I apologize for that -- 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much. 24 MS. ANNA PERSCHY: That was an oversight. 25 COMMISSIONER SIDNEY LINDEN: Let's carry
681 on. I know you haven't yet reached the minutes of the 2 meetings that your client was at. 3 MS. ANNA PERSCHY: Yes, and I'm going to 4 come to that in -- 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MS. ANNA PERSCHY: -- just a moment. 7 COMMISSIONER SIDNEY LINDEN: I hope so. 8 9 CONTINUED BY MS. ANNA PERSCHY: 10 Q: And I have one last document, and I 11 apologize for this. This is the -- well, actually I 12 think it's in -- no, it isn't. 13 It's one last document which was referred 14 to, actually, in-chief, or at least -- let me back up. 15 You testified in-chief that you gave some 16 legal advice in regard to the dispute between the 17 cottagers and the First Nation people in 1993? 18 A: No, I testified that I was aware of 19 some confrontations or some activities. I don't recall 20 providing legal advice about that. 21 Q: Well, and I'd actually provided this 22 notice of this document to Ms. Twohig I believe, on 23 Friday. It's document number 2000683. It's a fax from 24 you to Detective Staff Sergeant G.A. Matthews, and it's 25 dated August 5, 1993 and it's re. Ipperwash Beach land
691 dispute. 2 A: Hmm hmm. 3 Q: And I take it this is your 4 memorandum? 5 A: Can I take a moment, please, to read 6 it? 7 Q: Sure. 8 A: Thank you. 9 COMMISSIONER SIDNEY LINDEN: Again, this 10 is the first time you're seeing this document for some 11 years; is that right? 12 THE WITNESS: I don't think I've seen it 13 since I wrote it. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 THE WITNESS: But I'm not sure because I 16 don't know what the document says yet. 17 COMMISSIONER SIDNEY LINDEN: Take a 18 moment to read it. 19 MS. ANNA PERSCHY: I'm advised by My 20 Friends for the OPP and for the province that privilege 21 has been waived over this document as well. 22 COMMISSIONER SIDNEY LINDEN: I'm sorry. 23 The privilege has been waived with respect to this 24 document. Thank you very much, that's very helpful. 25 MS. ANNA PERSCHY: Yes, as I indicated, I
701 did indicate to both Ms. Twohig and to Counsel for the 2 OPP that I would be making reference to this document. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: Are these 7 two (2) copies of the same document or are they 8 different? 9 MS. ANNA PERSCHY: Yes, I believe so. 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: This is your memorandum, correct, Ms. 13 Hipfner? 14 A: Yes. 15 Q: And I take it it reflects your 16 understanding at the time? 17 A: It would have reflected my 18 understanding at the time. 19 Q: And do you know if you provided it to 20 anyone other than Detective Staff Sergeant Matthews? 21 A: I don't actually even remember 22 writing it. I don't remember who I provided it to. 23 Q: But, I take it you have no reason to 24 doubt that you actually faxed it to Detective Staff 25 Sergeant Matthews?
711 A: It was addressed, I can put it that 2 way, to Detective Sergeant -- Staff Sergeant G. A. 3 Matthews. 4 Q: But given that there's a fax cover 5 sheet you -- you have no reason to believe that you 6 didn't send it to him? 7 A: I expect my secretary would have done 8 the faxing. 9 Q: Yes. Could we make this document the 10 next exhibit? 11 THE REGISTRAR: P-723, Your Honour. 12 COMMISSIONER SIDNEY LINDEN: 723. 13 14 --- EXHIBIT NO. P-723: Document Number 2000683. Fax 15 from Ms. E. Hipfner to D/S 16 Sgt. G. A. Mathews Re. 17 Ipperwash Beach Land dispute, 18 August 05/'93. 19 20 CONTINUED BY MS. ANNA PERSCHY: 21 Q: The meetings, Ms. Hipfner, the couple 22 of meetings that you attended of the IMC in 1993 -- 23 A: Hmm hmm. 24 Q: -- occurred now twelve (12) years 25 ago, so it's understandable that -- that you don't recall
721 them now, but I take it in 1995 they had only occurred 2 two (2) years previously, right? 3 A: Yes. 4 Q: And it's possible, even likely, that 5 in 1995 when you were attending meetings with respect to 6 Ipperwash Provincial Park and the occupation there that 7 you recalled the events in 1993 with respect to the 8 occupation of the Camp and the Park and your involvement 9 which was at that point only a couple of years previously 10 at the Interministerial Committee Meetings? 11 A: Well, you've asked me a number of 12 questions in there about what I might recall. 13 Apart from attending an Interministerial 14 Committee Meeting and I -- I would have -- I only recall 15 attending one (1) in 1993; I don't know what I remembered 16 in 1995 about how many I attended in 1993. 17 And apart from, sort of, having a 18 consistent recollection of dealing with something around 19 the occupation of the Military Base and some difficulties 20 on a beachfront I don't know what I recalled in 1995 21 about my involvement in 1993 in those matters. 22 23 (BRIEF PAUSE) 24 25 Q: I take it that, with respect to the
731 meetings on September 5 and 6, you took fairly accurate 2 and copious notes of what was said at the meetings? 3 A: I took notes and -- and they have 4 been -- they have been admitted as evidence in -- in this 5 proceeding. 6 COMMISSIONER SIDNEY LINDEN: These are 7 the -- MS. ANNA PERSCHY: I'm sorry, 8 Commissioner. 9 COMMISSIONER SIDNEY LINDEN: I'm sorry. 10 These are the 1995 meeings now? 11 MS. ANNA PERSCHY: This is the 1995. 12 13 CONTINUED BY MS. ANNA PERSCHY: 14 Q: But, I take it that at the time you - 15 - you took fairly copious notes and you tried to ensure 16 that they were reasonably accurate? 17 A: I tried to ensure that they were 18 reasonably accurate. I've already testified that they 19 were not a verbatim transcript and that there gaps. 20 Q: And you took the notes 21 contemporaneously, so the notes reflect, as best you 22 could, the order in which people made various comments? 23 A: Yes. 24 Q: And as you indicated they're not 25 verbatim notes, so there may be some comments that you
741 tried to summarize rather than recording verbatim and 2 there are some gaps as you indicated? 3 A: Yes. 4 Q: And other than your handwritten notes 5 which are at Tabs 14 and 17 of Commission Counsel's 6 documents, you made no other contemporaneous notes of 7 what occurred at these meetings that you're aware of 8 today? 9 A: I only have one set of hands, they 10 were occupied taking the one set of notes that I prepared 11 contemporaneously. 12 Q: And you didn't take any other notes 13 immediately following these meetings? 14 A: If by taking notes you mean recording 15 what people are saying as they are saying it, the only 16 notes that I took are the -- are the two (2) exhibits 17 that are already before the Committee. 18 I don't remember whether I made other 19 notes at other times about the -- the proceedings of 20 those two (2) Committee meetings. 21 Q: But, sitting here today, you have no 22 reason to believe that you did? 23 A: I just don't know. 24 Q: So, you have no reason to believe 25 that you did at this point in time?
751 COMMISSIONER SIDNEY LINDEN: I think 2 you've already answered the question, you just don't 3 know. 4 THE WITNESS: Thank you. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: Not you've given some testimony as to 9 your subjective inferences regarding what Ms. Hutton 10 believed, indeed what others believed. 11 And I take it you're not a trained 12 psychiatrist or psychologist? 13 A: No, I'm not. 14 Q: And I take it that you don't believe 15 that you possess any psychic or other abilities that 16 would put you -- 17 MS. KATHERINE HENSEL: Excuse me. It's 18 my submission that -- that wasn't an appropriate question 19 or comment embedded in the question by My Friend. 20 COMMISSIONER SIDNEY LINDEN: Well, I'm 21 not -- 22 MS. KATHERINE HENSEL: I'm not sure how 23 it's helpful to -- to the record -- 24 COMMISSIONER SIDNEY LINDEN: Well, we 25 have her resume, we know what her qualifications are.
761 MS. ANNA PERSCHY: Well, I'm not sure 2 that we do have her resume. 3 COMMISSIONER SIDNEY LINDEN: Well, I 4 thought we did, Ms. Perschy. 5 MS. ANNA PERSCHY: I don't believe that 6 we do. 7 COMMISSIONER SIDNEY LINDEN: Do we not 8 have her resume? 9 MS. ANNA PERSCHY: Have you provided your 10 resume, Ms. Hipfner? 11 THE WITNESS: I haven't provided a 12 resume. 13 COMMISSIONER SIDNEY LINDEN: Sorry, I 14 thought we did. 15 THE WITNESS: But, I did provide a 16 summary of my education and career experience to the 17 Commission at some point. 18 MS. ANNA PERSCHY: I wasn't sure if it 19 was her complete work experience, Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Well, that's 21 fine. 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: And with respect to my second 25 question, I was simply trying to find out from this
771 Witness whether she believes that she has any abilities 2 that -- I'll put the question to you, Ms. Hipfner. 3 Do you believe that you have any abilities 4 or training that would put you in a better position to 5 interpret what is in the minds and hearts of other people 6 than your average person? 7 MS. KATHERINE HENSEL: Excuse me. 8 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 9 Hensel...? I don't see -- 10 MS. KATHERINE HENSEL: Once -- once 11 again, there are implications in that question that are 12 quite improper under the circumstances. Human beings 13 regularly, all of us, interpret each other based on what 14 we observe -- 15 COMMISSIONER SIDNEY LINDEN: She can't -- 16 MS. KATHERINE HENSEL: -- and what we hear 17 and see. And that is all Ms. Hipfner has testified to -- 18 to date. So, I'm not -- well I think it's fairly clear 19 what the question is -- is implying and it's not 20 appropriate. I -- 21 COMMISSIONER SIDNEY LINDEN: I don't 22 think it's helpful, as simple as that. I'd like you to-- 23 MS. ANNA PERSCHY: I was simply trying to 24 clarify whether or not this Witness has some reason to be 25 more confident than the average person in her ability to
781 interpret -- 2 COMMISSIONER SIDNEY LINDEN: How 3 confident is the average person? 4 MS. ANNA PERSCHY: Well, let me put it 5 this way. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: Ms. Hipfner, I take it during your 9 lifetime, you've had the experience of misinterpreting 10 another person's comments and misunderstanding their 11 intentions or their feelings? 12 COMMISSIONER SIDNEY LINDEN: Well, I'm 13 not sure that I think this is going to go anywhere 14 useful. Just ask her the questions that are something to 15 do with this Inquiry, please. 16 MS. ANNA PERSCHY: Well, Commissioner, 17 you've heard some evidence from this Witness with respect 18 to her subjective inferences regarding what happened at 19 these meetings. 20 COMMISSIONER SIDNEY LINDEN: You can ask 21 her about them, of course you can. 22 MS. ANNA PERSCHY: And I will. 23 COMMISSIONER SIDNEY LINDEN: And you 24 will. 25 MS. ANNA PERSCHY: And I was simply
791 asking a question with respect to this Witness' 2 experience in terms of her inferring things from other 3 people's behaviour. 4 MS. KIM TWOHIG: Mr. Commissioner, I'd 5 just like to clarify at this point. I don't think the 6 Witness was asked her about her subjective inferences -- 7 COMMISSIONER SIDNEY LINDEN: Neither do 8 I. 9 MS. KIM TWOHIG: But she was asked about 10 her own perception. 11 COMMISSIONER SIDNEY LINDEN: Her 12 perception. 13 MS. KIM TWOHIG: What she testified about 14 and what she's entitled to testify about. 15 COMMISSIONER SIDNEY LINDEN: And 16 everybody has perceptions and she wasn't offering any 17 professional views or interpretations and it's up to you 18 confirm what her impressions are, her impressions of -- 19 MS. ANNA PERSCHY: And -- 20 COMMISSIONER SIDNEY LINDEN: -- what she 21 saw, what she heard. 22 MS. ANNA PERSCHY: And I'm simply trying 23 to ask this Witness whether or not, in her experience, 24 she's made errors with respect to inferences that she's 25 drawn.
801 COMMISSIONER SIDNEY LINDEN: Well, I'm 2 not sure that that's a useful question for this Inquiry. 3 I think everybody in life has made mistakes. I'm not 4 sure what point you're trying to make with this Witness 5 with this question. 6 I'm sorry, yes? 7 MS. KATHERINE HENSEL: Thank you, 8 Commissioner. And in addition to your comments, I would 9 also submit that it's irrelevant whether this Witness 10 has, in her own judgment, made errors in the past. 11 COMMISSIONER SIDNEY LINDEN: Yes, I mean 12 -- are you then going to ask her what errors she's made 13 and go on into the detail of them and if not, how's it 14 helpful? 15 It's not helpful. I would ask you to 16 please ask questions that are useful. 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: Well, you've testified with respect 20 to your reactions to -- your emotional reactions to what 21 happened and I take it that you were saddened and very 22 upset by what happened on the night of September 6th. 23 You used the word "shattered" I believe? 24 A: I used the word "shattered," yes, I - 25 - to describe the reaction of a group of people,
811 actually, as I understood it, and certainly of my own. 2 Q: So you had feelings about the 3 Ipperwash situation on September 7th that you didn't have 4 before? 5 A: I had feelings about the death of a 6 man. 7 Q: I understand, Ms. Hipfner. And you 8 testified that you had conversations with your colleagues 9 the morning after, but you don't recall what, correct? 10 A: I don't recall testifying about 11 conversations with my colleagues. 12 Q: You testified that on the morning of 13 the 7th you went to the office and that you had some 14 conversations with your colleagues. Well do you -- 15 MS. KIM TWOHIG: I'm not sure that was 16 her evidence. I think she did say that everyone seemed 17 to be in a state of shock or words to that effect, but I 18 don't recall anything about conversations. 19 Perhaps My Friend could ask -- 20 COMMISSIONER SIDNEY LINDEN: She could 21 just ask the question: Did you have any conversations? 22 23 CONTINUED BY MS. ANNA PERSCHY: 24 Q: Do you recall having any 25 conversations with your colleagues when you came to the
821 office with respect to the news that you'd just heard 2 through the media? 3 A: I expect that we did. I don't recall 4 any details of those conversations. 5 Q: I think that's what you testified to 6 in-chief. And you testified that you were involved in a 7 review of the government's response to the situation, 8 subsequently; correct? 9 A: I'm sorry, Ms. Perschy. I'm having 10 some difficulty understanding what you -- if you could -- 11 Q: You testified that you were involved 12 in a review of the government's response to the 13 occupation? Were you -- 14 A: I don't recall testifying that I was 15 involved in a government review or a review of the 16 government's response to the occupation. 17 Q: Well, were you asked to fill out some 18 sort of questionnaire with respect to the government's 19 response; do you recall that? 20 A: No. 21 Q: Okay. But you know that there have 22 been -- you've read the papers, you've heard that there 23 have been allegations in the media and in the civil 24 litigation of political direction and influence of the 25 OPP?
831 You've heard those allegations made -- 2 A: Yes, I have. 3 Q: -- many times? 4 A: Yes, I have. 5 Q: And as a result, both of what 6 happened and any communications that you may have had 7 with your colleagues, and the allegations in the media 8 and the law suit and you mentioned, I believe, that you 9 had to review your notes in order to answer undertakings, 10 you thought back many, many times to the events of 11 September 5th and 6th? 12 A: There have been -- certainly in the 13 period of time immediately following the events it was, 14 as I said, something that enveloped my -- my professional 15 life; that was what I dealt with for a very long time. 16 Of course, that was ten (10) years ago and 17 over time one's involvement diminishes. I have, from 18 time to time, had occasion to revisit these issues 19 because I've been asked to collect notes, hand them over, 20 transcribe them, talk to various people, respond to 21 questions. 22 So, from time to time, yes, over the last 23 ten (10) years I've had occasion to sort of think about 24 these issues. 25 Of course it diminishes, the -- the --
841 until very recently of course when I've had to become 2 immersed in them again you go on and -- and my 3 involvement has diminished and the reasons for my 4 revisiting the issues have probably diminished over time. 5 Q: And you mentioned that after 6 September 6th, 1995 you understood that there might be 7 some sort of Coroner's inquest or inquiry, correct? 8 A: I understood that there might be 9 proceedings of some nature and I cited some examples of 10 the kinds of things that might have -- might have been in 11 the offing. 12 Q: And you referred to some sort of 13 climate of secrecy with ONAS, subsequently. Were you 14 told not to speak to anyone about the events? 15 A: Well, as public servants we swear an 16 oath of office and -- and secrecy and so we're not 17 permitted to discuss sensitive things publicly. 18 As a lawyer I'm subject to solicitor/ 19 client privilege, but I would say there was a certain 20 sort of self-editing that occurred after the events of 21 September 7th where, as I said, even people who had 22 shared the experience of being on the -- the -- the 23 Interministerial Committee did not discuss the events or 24 their recollections or -- or their responses to it, right 25 to the present day.
851 Q: And I take it as a lawyer you 2 understood that potential witnesses to any sort of legal 3 proceedings are frequently asked not to speak about their 4 evidence prior to appearing for whatever the proceeding 5 is? 6 A: I have a general understanding of 7 that, yes. 8 Q: And I take it you know that that's -- 9 the rationale for that is because sharing recollection 10 among -- among witnesses to an event can taint a person's 11 independent recollection? 12 A: Yes. 13 Q: Could you turn to your notes of 14 September 5? I believe it's P-510 Tab 14 of Commission 15 Counsel's documents? 16 17 (BRIEF PAUSE) 18 19 Q: At page 1 of your notes, next to the 20 number 3, you indicate that: 21 "MNR guy on the telephone and new 22 archeological evidence that there may 23 be a burial site in the Park." 24 Do you see that reference, Ms. Hipfner? 25 A: I do.
861 Q: Now, we've heard some evidence that 2 this is a reference to Dan Elliott and he's referred to 3 by name in Ms. Jai's notes. I take it that at the time 4 you didn't know Mr. Elliott or what his role at MNR was? 5 A: I still don't know. 6 7 (BRIEF PAUSE) 8 9 Q: Like yourself, Ms. -- Ms. Hipfner, 10 Mr. Elliott also provided answers to undertakings as part 11 of the civil litigation. And for benefit of My Friends 12 I'm referring to Document Number 3000407 which is a 13 letter from Counsel dated June 19th, 2003 providing some 14 answers to undertakings. 15 16 (BRIEF PAUSE) 17 18 Q: And at Undertaking Number 135 Mr. 19 Elliott -- sorry? 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER SIDNEY LINDEN: Have you 24 seen these before? 25 THE WITNESS: I don't know.
871 MS. ANNA PERSCHY: I was actually simply 2 going to refer to it and then ask Ms. Twohig -- I was 3 just -- I was just going to summarize the answer rather 4 than -- than -- than reading it in. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: Mr. Elliott provided information 8 regarding Ms. Jai's notes of his comments regarding new 9 archeological evidence, and he indicated that he would -- 10 that he would not have said that there was any new 11 evidence of a burial ground, as he wasn't aware of any. 12 And he indicated that he may have been 13 referring to the 1972 Hamelin study of the Park and that 14 his comment must have been misunderstood. 15 Is it possible that you misunderstood his 16 comment? 17 A: I have no independent recollection of 18 anybody saying this at the September 5th meeting, so I 19 don't think I can comment on that. 20 Q: Well, I'm simply asking you if it's 21 possible that you may have misunderstood; is it possible? 22 A: I don't know. 23 Q: Ms. Jai testified that she didn't 24 know of any new evidence, were -- did you? 25 A: About a burial site in the Park?
881 Q: Yes. 2 A: No. 3 Q: And in any event, even if there were 4 a burial ground, you knew, as a result of these meetings, 5 that that did not create a legal right to occupy the 6 Park. 7 A: I think I knew that anyway. My 8 understanding was that the existence of a burial site in 9 the Park would not disturb Ontario's title to the Park. 10 11 (BRIEF PAUSE) 12 13 Q: Above your notation regarding MNR, 14 there's a reference to a Court decision -- 15 A: Yes. 16 Q: And you testified that you didn't 17 independently recall, I believe you were referring to 18 your notes, that you gave an overview that the Court had 19 recently dismissed the claim by the Kettle and Stony 20 Point nation and found that the surrender of lands at 21 Kettle Point was valid. 22 And then in your testimony, you referred 23 to your note regarding Ms. Christie's comments -- 24 A: Hmm hmm. 25 Q: -- that the decision, and I'll just
891 read it, Liz: 2 "Decision affects Ipperwash Provincial 3 Park [and then a line] has effect of 4 confirming Ontario's title to the Park 5 lands." 6 And you testified that that's incorrect? 7 A: Yes. 8 Q: And I take it that what you meant by 9 your testimony to this Inquiry was that the Decision of 10 Killeen J. involved Kettle Point lands and not Stoney 11 Point lands? 12 A: Yes. 13 Q: Now, you didn't know Ms. Hutton 14 before the meeting of September 5th, 1995, correct? 15 A: No, I'd never met her. 16 Q: And you didn't know what experience 17 she'd had before her position at the Premier's office; 18 correct? 19 A: No. 20 Q: And you didn't know what her role -- 21 A: Well my -- the answer to correct is 22 yes, sorry. 23 Q: I appreciate you being clear. You 24 didn't know what her role or her specific 25 responsibilities were within the Premier's office, at the
901 time? 2 A: I knew that she was an assistant to 3 the Premier but I didn't know -- 4 Q: Other than that. 5 A: -- her specific responsibilities. 6 Q: And in the first part of the meeting 7 of September 5th, 1995, following the information 8 provided by Ron Fox and then Peter Sturdy, you have, in 9 your notes, a series of comments under the heading, 10 Options, in regard to an injunction -- 11 A: I'm sorry, what page are you at? 12 Q: Following the update -- 13 A: Yes. 14 Q: -- which is at the bottom of page 1 15 and page 2. At page 3 under the heading, Options, we 16 have a series of notations by and large referring to -- 17 to an injunction, correct? 18 19 (BRIEF PAUSE) 20 21 Q: Well, let me put it this way -- 22 A: I can't say that it's all referring 23 primarily to an injunction. 24 Q: I take it that your recollection is 25 consistent with your notes in terms of what was
911 discussed? 2 A: In what sense? 3 Q: Well that -- there were the comments 4 that were made; that Mr. Bangs said, "should consider 5 injunction first," correct? 6 A: I think that what I said is that -- 7 is that I am largely dependent on my notes, though not 8 completely dependent on my notes; that there are things 9 that I have recorded that I recall independently; there 10 are things that are not recorded that I recall 11 independently. 12 There are things that are recorded that I 13 don't recall at all, and some that fall within a grey 14 area. I don't remember, really, whether I independently 15 recall them. 16 So -- so my notes reflect a great range of 17 states of knowledge. 18 Q: All right. Well, we know what's 19 recorded in the notes. 20 A: Yes. 21 Q: Up to the notes before the first note 22 that you attribute to Ms. Hutton -- 23 A: Which is at what page? 24 Q: The next page, halfway through the 25 next page.
921 A: Okay. 2 Q: So with respect to your recollection 3 regarding that portion of this meeting that is recorded 4 under the heading, Options, in your notes, and that goes 5 on for about a page and a half, do you, today, have any 6 further recollection as to what specifically was said 7 during that part of the meeting, other than what's in the 8 notes? 9 A: Not that I can think of at the 10 moment. 11 Q: Could you turn to Ms. Jai's notes 12 which are at Tab 15 of Commission counsel's documents? 13 Do you have her notes? 14 A: I -- I do, thank you. 15 Q: At page 4, towards the top of the 16 page, Ms. Jai has a reference to a comment: 17 "What is the tolerance level of the 18 Government?" 19 And do you recall that question being 20 asked? 21 A: I'm sorry. Is it -- is it the page 22 that's marked number 4 in Julie's handwriting or is it 23 the 4th page of the entire -- 24 Q: It -- it's the fourth page of the 25 notes from September 5th. I should have clarified.
931 That's right. Commission counsel, thank you very much, 2 just reminded me they appear out of order so the notes 3 from September 5th are towards the back of the document. 4 A: Sorry, we're dealing -- I'm sorry, 5 are we dealing with notes of September 5th or September 6 6th? 7 Q: From September 5th. 8 A: Okay. Then I think I've got page 4 9 of her notes of September 5th. 10 Q: And I believe the -- there's a 11 notation about three (3) lines down on page 4: 12 "What is the level of -- what is the 13 level of tolerance level of government. 14 Do you recall the question being asked 15 like that? 16 A: I'm going to refer back to my own 17 notes for a moment, or are you telling me that they don't 18 appear in my notes? 19 Q: I don't believe they are in your 20 notes. I was simply asking as to your recollection. 21 A: I don't remember, I don't recall. 22 Q: And Ms. Jai then has a reference to 23 Serpent Mounds and then some comments which I believe she 24 attributed to Ms. Hutton. And again, I don't believe 25 they -- they appear in your notes and I'm simply asking
941 if you recall Ms. Hutton or anyone making these comments 2 with respect to Serpent Mounds. 3 A: Okay. What -- 4 Q: The comments being -- 5 A: "Also linked with Serpent Mounds 6 issue in terms of perception." 7 Q: And then below that: 8 "Premier asked why this Committee 9 didn't meet to discuss Serpent Mounds. 10 How was the decision made?" 11 Do you recall that? 12 A: I don't remember that, I don't recall 13 it. 14 Q: Ms. Jai testified that she didn't 15 recall any comment prior to this by Ms. Hutton at this 16 meeting. And -- and I take it you don't have any 17 reference to Ms. Hutton making any comments prior to this 18 in -- in the meeting. 19 And I take it you don't recall her saying 20 anything prior? 21 A: I think that the first reference in 22 my notes to Ms. Hutton is the point where she's saying 23 that the Premier is hawkish on this issue. And I don't 24 recall her saying anything in advance of that. 25 Q: And Ms. McAleer asked you about your
951 understanding of that so I won't go through that again, 2 other than one other question. 3 I take it you don't recall Ms. Hutton 4 using that word again, correct, at either of these 5 meetings? 6 A: Which word? 7 Q: Hawkish. 8 A: I recall that she used it once. 9 Q: If you can look at -- go back to your 10 notes now -- 11 A: At which tab, I'm sorry? 14? 12 Q: I believe -- 13 A: Yes. 14 Q: That that's right. Yes, Tab 14. Do 15 you have your notes? 16 A: I do. 17 Q: Yes. 18 19 (BRIEF PAUSE) 20 21 Q: If you could look at your notation 22 below that -- below the notation that follows the 23 reference to Jeff Bangs' comment about the statement of 24 political relationships? 25 A: I'm sorry, what page are you at?
961 Q: I'm sorry, I'm at page -- page 4 of 2 your notes. 3 A: Okay. I have Jeffrey Bangs saying 4 the statement of political relationship is the bigger 5 umbrella issue. 6 Q: Right. And so, we're clear, the 7 notation below that states and I'm quoting the notation 8 now, quote: 9 "Deb: Clearcut issue of Ontario's 10 ownership of property." Close quote. 11 Then below that on the next line there's 12 an open square bracket symbol and again quoting the 13 notation, quote: 14 "Something about how this may be the 15 time/place to move decisively." 16 A: Yes. 17 Q: And then close -- close quote then a 18 close square bracket symbol? 19 A: Yes. 20 Q: And that's what you recorded in your 21 notes? In square brackets: 22 "[Something about how this may be the 23 time/place to move decisively.]" 24 A: Yes. 25 Q: And you previously testified that
971 with respect to the notation in the second sentence you 2 were unable to capture the whole sentence? 3 A: I was unable to catch the first part 4 of it. 5 Q: And this notation is in square 6 brackets unlike the other notations -- 7 A: Hmm hmm. 8 Q: -- but I take it you're not 9 suggesting that all of the other notes are verbatim? 10 A: No. Well, they're accurate. I mean 11 they reflect what people were saying. 12 Q: But they're not verbatim? 13 A: No, this is not a verbatim transcript 14 of the discussion. 15 Q: And I'm going to suggest to you that 16 this notation is in square brackets because even as you 17 were writing it you knew that this notation was less 18 accurate than the others that you had made? 19 A: That it wasn't complete. 20 Q: And therefore not accurate? 21 A: In the sense of not being complete, 22 yes. 23 Q: Now, speaking generally, Ms. Hutton, 24 I take it -- 25 A: Ms. Hipfner.
981 Q: Thank you for that. Speaking 2 generally, Ms. Hipfner, you know that governments 3 frequently use the phrase that they will move decisively 4 in regard to enacting legislation, launching initiatives, 5 all kinds of things, right? 6 You've -- you've heard the expression used 7 in the media? 8 MS. KIM TWOHIG: I'm not sure she can 9 answer that question. 10 COMMISSIONER SIDNEY LINDEN: I'm not 11 sure. 12 MS. ANNA PERSCHY: I'm asking her as to 13 her own experience with respect to this phrase, 14 Commissioner. 15 COMMISSIONER SIDNEY LINDEN: All right. 16 Go ahead. 17 18 CONTINUED BY MS. ANNA PERSCHY: 19 Q: Ms. Hipfner -- 20 A: I don't know that I have any sort of 21 experience that I could describe with respect to this 22 phrase. People in my life, outside of work and perhaps 23 sometimes in the course of my employment have talked 24 about moving decisively, but I don't think it's a term 25 that's used all that frequently.
991 Q: You -- you haven't heard it in the 2 media with respect to comments made by various 3 governments, that they will move decisively? 4 COMMISSIONER SIDNEY LINDEN: You've asked 5 the question; you've got an answer. I'm not sure how 6 much more you can do with it. 7 8 CONTINUED BY MS. ANNA PERSCHY: 9 Q: Well, in of itself I'm going to 10 suggest, Ms. Hipfner, it just means that government will 11 actually make a decision and do something, right? 12 MS. KIM TWOHIG: How can this Witness 13 testify as to what the Government meant -- 14 MS. ANNA PERSCHY: I'm not asking -- 15 MS. KIM TWOHIG: -- by that phrase? 16 MS. ANNA PERSCHY: I'm not asking what 17 the Government meant. 18 COMMISSIONER SIDNEY LINDEN: What are you 19 asking? 20 MS. ANNA PERSCHY: I'm asking Ms. Hipfner 21 what she understood. And I'm suggesting to her sitting 22 now that in of itself you understand that in of itself 23 the phrase, 'move decisively' simply means that the 24 Government will actually make a decision and do 25 something.
1001 THE WITNESS: I'm not sure that I can 2 remove this sentence from the context in which it was 3 said. I -- 4 MS. ANNA PERSCHY: I'm speaking generally 5 at this point, Ms. Hipfner. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MS. ANNA PERSCHY: Your understanding 8 now. 9 COMMISSIONER SIDNEY LINDEN: You're 10 asking her a question, you have to give her a chance to 11 answer it. 12 MS. KATHERINE HENSEL: And -- and with 13 respect to My Friend, she's -- she's basing all her 14 questions on her initial question. The Witness has 15 already answered that she's not familiar with it -- the - 16 - the use of this phrase. 17 So, all of the -- the questions that flow 18 from it are not helpful and the Witness isn't in a 19 position to answer. She's -- she's stated that she 20 doesn't have experience of the use of this phrase 21 particularly. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 What -- what's your question again, Ms. Perschy? 24 25 CONTINUED BY MS. ANNA PERSCHY:
1011 Q: So, Ms. Hipfner, since you've had no 2 experience with this phrase are you indicat -- 3 A: I don't actually think I said I have 4 no experience with the phrase. What I said is is it's a 5 phrase. I've heard it, people use it, perhaps I've used 6 it but that it's -- I would say to the extent that you're 7 suggesting that it's a phrase that's used commonly within 8 government or that I've heard commonly in the course of 9 my work, I would say no. 10 Q: All right. But, in it itself, based 11 on your experience, it simply means that the Government 12 will actually make a decision and do something, right? 13 MS. KIM TWOHIG: Again, she's being asked 14 to interpret what Ms. Hutton meant when she used that 15 phrase. And My Friend previously objected to her trying 16 to guess what Ms. Hutton meant. 17 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MS. ANNA PERSCHY: Well, she has given 20 evidence on that point, and I'm simply probing with this 21 Witness what she understands by the phrase. 22 COMMISSIONER SIDNEY LINDEN: Well, when 23 you say 'in and of itself' which is the way you put it -- 24 MS. ANNA PERSCHY: Yes. 25 COMMISSIONER SIDNEY LINDEN: -- what do
1021 you mean? Do you mean these two (2) words -- the 2 dictionary meaning of these words? 3 MS. ANNA PERSCHY: I mean the two (2) 4 words. Well yes. If -- if -- 5 COMMISSIONER SIDNEY LINDEN: Out of 6 context? Out of the meeting just what these two (2) 7 words mean? How does that help? 8 Maybe it does. I don't see how it does. 9 If you could explain it then I would -- how does these 10 taking these words out of context, how? 11 MS. ANNA PERSCHY: Simply -- I'm simply 12 going to suggest that when a government states that it 13 can move decisively, it can refer to any kind of 14 government action. 15 COMMISSIONER SIDNEY LINDEN: When a 16 government states that it will move decisively? I'm 17 sorry what -- 18 MS. ANNA PERSCHY: Yes. When a 19 government -- 20 COMMISSIONER SIDNEY LINDEN: You're 21 asking her what a government means when it -- 22 MS. ANNA PERSCHY: No, I'm asking her as 23 to her interpretation. Taking it out of a context for a 24 moment, just using the words that's she's recorded, I'm 25 asking her what is her understanding of a government
1031 saying that they're going to move decisively. And I'm 2 suggesting that it can refer to any kind of government 3 action. 4 MS. KIM TWOHIG: The question might have 5 some relevance if she's able to answer in the context of 6 this meeting, but I submit it's very difficult and not 7 helpful to the Commission to try to answer in the 8 abstract. 9 COMMISSIONER SIDNEY LINDEN: I agree. 10 But -- 11 MS. ANNA PERSCHY: Well, with previous 12 witnesses, we've had dictionary definitions of words -- 13 COMMISSIONER SIDNEY LINDEN: Yes. That's 14 why I'm asking you, is that what you want? Do you want a 15 dictionary definition? 16 MS. ANNA PERSCHY: Well, there isn't a 17 dictionary definition of a phrase, Commissioner. So, I'm 18 simply asking this Witness if taking this phrase 'move 19 decisively' -- 20 COMMISSIONER SIDNEY LINDEN: Out of 21 context. 22 MS. ANNA PERSCHY: -- out of context, and 23 just referring to her understanding of the what is meant 24 by the Government going -- being -- proceeding to quote, 25 "move decisively", unquote. And I'm suggesting that it
1041 simply means that the Government will actually make a 2 decision and do something. 3 THE WITNESS: Generally, I don't disagree 4 with that. 5 6 CONTINUED BY MS. ANNA PERSCHY: 7 Q: And if quote, "move decisively", 8 close quote, could refer to any kind of government 9 action, Ms. Hipfner, it doesn't necessarily follow that 10 it would refer to police operations, correct, in general? 11 COMMISSIONER SIDNEY LINDEN: In general 12 and out of context is what you mean. 13 MS. ANNA PERSCHY: Yes. 14 COMMISSIONER SIDNEY LINDEN: It's in 15 general -- 16 MS. ANNA PERSCHY: In general. 17 COMMISSIONER SIDNEY LINDEN: -- and out 18 of context. 19 MS. ANNA PERSCHY: Her understanding in 20 general. 21 COMMISSIONER SIDNEY LINDEN: Well, it's 22 got to be in this context of this meeting or somewhere 23 else. 24 MS. ANNA PERSCHY: No, I said in general. 25 COMMISSIONER SIDNEY LINDEN: I'm not sure
1051 how much more of this in general questioning about words 2 and government's intentions is going to be useful. But, 3 okay, let's see where this goes. You've asked that 4 question. It means the Government's going to make a 5 decision? 6 MS. ANNA PERSCHY: Yes, I'm suggesting 7 that if move -- government -- that the phrase 'government 8 will move decisively -- 9 COMMISSIONER SIDNEY LINDEN: And? 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: -- could refer to any kind of 13 government action in general. It doesn't necessarily 14 follow that it would refer to police operations, correct? 15 A: I think that all words hinge on their 16 context. 17 COMMISSIONER SIDNEY LINDEN: That's 18 right. 19 THE WITNESS: And you've asked me whether 20 I believe that the words 'move decisively' can refer to 21 making a decision and then acting on that decision and my 22 answer if yes. But, I don't think I understand your 23 question. 24 25 CONTINUED BY MS. ANNA PERSCHY:
1061 Q: Well in the context of the September 2 5th, 1995 meeting -- 3 A: Hmm hmm. 4 Q: -- you assumed that that reference 5 was with respect to police operations? 6 COMMISSIONER SIDNEY LINDEN: I'm not sure 7 where it says that in this note. 8 MS. KIM TWOHIG: I don't think she's 9 testified to that affect. 10 COMMISSIONER SIDNEY LINDEN: I don't 11 think she's testified to that. 12 THE WITNESS: No. 13 COMMISSIONER SIDNEY LINDEN: She's 14 written the words down and I'm not sure what she's 15 testified. 16 MS. ANNA PERSCHY: Well, she gave some 17 testimony as to various inferences that she's drawn. 18 THE WITNESS: Hmm hmm. 19 COMMISSIONER SIDNEY LINDEN: From the 20 context of -- 21 THE WITNESS: Yeah. 22 COMMISSIONER SIDNEY LINDEN: -- the 23 discussion, from the words in the context. 24 25 CONTINUED BY MS. ANNA PERSCHY:
1071 Q: And I'm now asking her about that 2 meeting and my question is that you drew inferences, you 3 made an assumption as to what that referred to? 4 A: No. I recorded what was said. I 5 think when we were discussing this earlier and I don't 6 remember whether it was in-chief or on cross-examination, 7 I was looking -- I was being asked to identify or I did 8 identify, at any rate, a number of things that Ms. Hutton 9 said, that over the space of two (2) meetings created an 10 impression. 11 And so certainly I referred to that, but 12 at the time that it was said I'm not -- I don't recall 13 what particular meaning I attached to it. I don't think 14 that I necessarily understood it to be referring to 15 police operations. 16 At that -- at the point that it was said I 17 can't say that I -- I took that inference. 18 Q: So you didn't draw any inferences 19 from that phrase, in and of itself, when you heard it at 20 the meeting; is that what you're saying? 21 A: I -- I understood Ms. Hutton to be 22 saying that the government wanted to move swiftly and 23 decisively. 24 COMMISSIONER SIDNEY LINDEN: For what 25 it's worth, Ms. Perschy, I didn't even know it at the
1081 time. I don't have the verbatim transcript. I don't 2 have the transcript, but she left a space there. 3 MS. ANNA PERSCHY: Oh, we'll come to 4 that. 5 COMMISSIONER SIDNEY LINDEN: I won't get 6 into that and I won't interrupt you. 7 MS. ANNA PERSCHY: We'll -- we will come 8 to that. 9 COMMISSIONER SIDNEY LINDEN: I'll let you 10 deal with it. 11 MS. ANNA PERSCHY: Thank you. 12 13 CONTINUED BY MS. ANNA PERSCHY: 14 Q: Well, I asked Ms. Jai if Ms. Hutton, 15 at either of these meetings, specified any action and she 16 testified that she only recalled Ms. Hutton saying that 17 she or the Premier wanted to move quickly, but there was 18 no reference to specific action. 19 And I take it that that's consistent with 20 your recollection? 21 A: My recollection, and this is over the 22 course of two (2) meetings, was that there were two (2) 23 things that Ms. Hutton was expressing consistently. 24 The first was that the occupation be ended 25 quickly and the second was that one (1) way or another,
1091 either through -- through statements that she made that 2 suggested this belief or in the second meeting a 3 discussion about this, a desire to be able to direct the 4 police. 5 Q: Well, we'll come to that. 6 A: And those are the two (2) things that 7 I recollect. 8 Q: We'll come to that. 9 A: Okay. 10 Q: Coming back to this phrase, 'move 11 decisively' I take it you didn't ask Ms. Hutton what she 12 meant, did you? 13 A: No. 14 Q: Now, you testified, and I was coming 15 to this, that the fact that you have a space between the 16 comments we've just looked at and the next notation 17 regarding some comments by Ron Baldwin that there are 18 permanent homes and cottages nearby, suggests to you now 19 that Ms. Hutton said something more than you had 20 recorded? 21 A: Yes. 22 Q: Could you turn to Ms. Jai's notes? 23 A: And what tab are they at, please? 24 COMMISSIONER SIDNEY LINDEN: Fifteen 25 (15).
1101 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: What page 4 are we looking at, Ms. Perschy? 5 MS. ANNA PERSCHY: It's page 4 of the 6 notes of September 5th again. 7 COMMISSIONER SIDNEY LINDEN: Which is the 8 second of the two (2) groups of notes, right? 9 MS. ANNA PERSCHY: Yes. 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: Now, Ms. Jai doesn't have any 13 notations of any comments made by Ms. Hutton, following 14 the reference to the statement of political relationship. 15 Do you see that? Right after the 16 reference to: 17 "Jeff, haven't dealt with S.P.R. yet, 18 so don't have the larger framework." 19 Her next notation is the comments by Ron 20 Baldwin regarding the cottages and homes nearby so the 21 Park isn't isolated? 22 A: Yes. 23 Q: Now, Ms. Jai has testified that she 24 doesn't recall Ms. Hutton making any particular comments 25 that she hasn't recorded. And I anticipate that Ms.
1111 Hutton will testify that she didn't make any suggestion 2 to the effect that the Premier had some say in regard to 3 police operations. 4 And I take it that you will agree with me 5 that you do not, and cannot know, what, in fact, was 6 going on in Ms. Hutton's mind and what she intended to 7 mean, correct? 8 COMMISSIONER SIDNEY LINDEN: Well, I -- 9 MS. KIM TWOHIG: Mr. Commissioner, I'm 10 not sure this is a fair question to the Witness. 11 COMMISSIONER SIDNEY LINDEN: I lost track 12 of it, so I'm going to ask her to come back to that. 13 MS. KIM TWOHIG: That's not exactly what 14 Ms. Jai said in that, as I recall her testimony, it was 15 similar to Ms. Hipfner's in that she said it wasn't 16 intended to be a verbatim record. 17 She was Chairing the meeting and doing 18 other things, and she doesn't have a record of everything 19 that's said, although she didn't specifically recall any 20 additional comments. 21 COMMISSIONER SIDNEY LINDEN: That's my 22 recollection, but I don't have the transcript in front of 23 me so. 24 25 (BRIEF PAUSE)
1121 COMMISSIONER SIDNEY LINDEN: I don't 2 think any witness has said that these notes are a 3 complete verbatim transcript. 4 MS. ANNA PERSCHY: No, I appreciate that, 5 but Ms. -- and we can take the time to look it up. Ms. 6 Jai's testimony was that she didn't recall Ms. Hutton 7 making any specific comments that she hasn't recorded. 8 THE WITNESS: But my notes indicate that 9 Ms. Hutton did make additional comments. 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: Well, your notes don't state that. 13 That's -- you're reading in from the space, correct -- 14 A: No, no, no, no. 15 Q: -- the fact that -- 16 A: Julie has not recorded even the first 17 part of Ms. Hutton's comment. At least, I don't see in 18 Julie's handwritten notes a second reference to Ms. 19 Hutton making comments after Jeff Bangs has discussed the 20 statement of political relationship. 21 So Julie's notes omit something that mine 22 contain, and mine, as I've drafted them, indicate to me 23 that, in fact, I haven't captured all of the comments 24 that she made. 25 Q: Right. And that's the reference to
1131 the notation in square brackets that we just referred to? 2 A: I don't see in Julie's notes, though 3 clearly I've not had an opportunity to read them with 4 care, the comment -- the first comment that I have 5 attributed to Ms. Hutton here, which is that this is a 6 clear cut issue of Ontario's ownership of the property, 7 Julie hasn't recorded that and nor has she recorded 8 anything about this being the time and place to move 9 decisively. 10 So, all I can conclude from that is that 11 Julie has not recorded comments of Ms. Hutton that I, in 12 fact, did capture, at least in part. 13 Q: No, I understand that. And my point 14 simply was I advised you, and I can repeat it, that I 15 anticipate that Ms. Hutton will testify that she didn't 16 make any suggestion to the effect that the Premier had 17 some say in regard to police operations and that I take 18 it that you agree that you do not and cannot know what, 19 in fact, was going on in -- in Ms. Hutton's mind and what 20 she intended to mean? 21 COMMISSIONER SIDNEY LINDEN: Well, I -- 22 THE WITNESS: I expect that Ms. Hutton 23 will testify as to what she intended. 24 25 CONTINUED BY MS. ANNA PERSCHY:
1141 Q: And you don't know, for a fact, what 2 was going on in her mind -- 3 A: I don't know what was going on in Ms. 4 Hutton's mind. 5 6 (BRIEF PAUSE) 7 8 Q: And you gave some testimony with 9 respect to some comments, generally, some impressions 10 that you drew from comments that you can't recall the 11 specifics of which, and which are not recorded in your 12 notes? 13 A: Are you talking about my recollection 14 of a heated discussion on Sept -- during the meeting of 15 September 6th? 16 Q: No, I'm speaking now with respect to 17 your testimony this morning with respect to the fact that 18 in your notes you have these square brackets and then you 19 have a couple of spaces, and I believe you testified 20 previously -- 21 A: Hmm hmm. 22 Q: -- that that suggests to you that 23 there was some further comments that you haven't 24 recorded? 25 A: By the same speaker, yes.
1151 Q: And you drew certain inferences from 2 those comments that you haven't recorded? 3 A: I don't -- I don't know what those 4 comments were and so it's hard for me to speak to them. 5 Q: All right. You'll agree with me that 6 -- well, I had understood that during your cross- 7 examination by Ms. McAleer -- 8 A: Hmm hmm. 9 Q: -- that there were some comments, the 10 specifics of which you can't recall, made at around this 11 time in the meeting that you interpreted to mean that Ms. 12 Hip -- Ms. Hutton thought or may have believed that she 13 or the Premier had some ability to direct police 14 operations. 15 Did you not give some testimony along 16 those lines? 17 A: Yes. And certainly in that sense I 18 did -- did point to what I did capture which is the 19 reference to this being the time and place to move 20 decisively and suggested that -- that -- that that wasn't 21 obviously something that Ms. Hutton could decide or -- or 22 even hold an opinion about, necessarily, to the extent 23 that it was referring to police operations. 24 Q: Okay. So let me understand this. Do 25 you recall today in terms of the inferences that you've
1161 drawn with respect to what you believe Ms. Hutton 2 thought, is that to do simply with that phrase, because I 3 understood you to say that there were some additional 4 comments made subsequently that you then interpreted to - 5 - to suggest that? 6 A: I remember testifying and perhaps, 7 you know, perhaps it'll be necessary to look at the 8 transcript, but I remember testifying that there were, 9 cumulatively, remarks made over the -- over the -- during 10 the two (2) meetings that suggested to me that Ms. Hutton 11 believed that there was a role for non-police officers to 12 play in deciding police operations or police response to 13 the occupation. 14 Q: And my question to you, Ms. Hipfner, 15 is -- is that -- is that an impression that you drew, you 16 believe today -- 17 A: Hmm hmm. 18 Q: -- from some comments that may have 19 been made at this point in the meeting where you have 20 these two (2) spaces? 21 A: Yes. I think I -- well, not the two 22 (2) spaces, from the -- from the comments in total, as 23 you see them -- as you see them described here, I think, 24 yes, I began to drew an infer -- I began to draw the 25 inference that Ms. Hutton -- as I said, there were two
1171 (2) clear -- there were two (2) things that I clearly 2 understood from the meetings. 3 That Ms. Hutton, and she certainly said 4 the Premier, too, wanted the occupation ended quickly and 5 -- and this belief that there was a role for the 6 government to play in directing police operations. 7 Q: And it's the latter that -- that I'm 8 asking you about. 9 A: Hmm hmm. 10 Q: And I believe Ms. McAleer had done 11 this, but maybe we'll do it again. 12 A: Hmm hmm. 13 Q: With respect to the notes that you 14 have recorded on -- 15 A: Hmm hmm. 16 Q: -- September 5th, 1995 what are the 17 comments of Ms. Hutton that led you to drew -- draw that 18 subjective -- 19 A: That the Premier is hawkish on this 20 issue; that it would set -- something about -- and I 21 recall this independently, this being a challenge, 22 somehow, to the government. 23 Q: Well, that's not in your notes. 24 A: It's not in my notes, but I 25 remember --
1181 Q: If you can just refer -- 2 A: -- that. 3 Q: If you could just refer, at this 4 point to what is expressly in your notes. 5 COMMISSIONER SIDNEY LINDEN: What -- 6 OBJ MR. JULIAN ROY: I have an objection of 7 Ms. Perschy trying to confine the Witness in this 8 fashion. The Witness was trying to answer the question 9 that was on the table; she should not be directed with 10 that type of precision to what she should be referring to 11 when she answers it. 12 In my respectful submission -- 13 COMMISSIONER SIDNEY LINDEN: Thank you. 14 MS. ANNA PERSCHY: Well -- 15 MR. JULIAN ROY: -- is about to go on. 16 MS. ANNA PERSCHY: It was -- it my 17 question, and my question -- 18 COMMISSIONER SIDNEY LINDEN: Carry on. 19 MS. ANNA PERSCHY: -- was specific at 20 this point simply with respect to what's in the notes. 21 COMMISSIONER SIDNEY LINDEN: Yes, you're 22 trying to get what's in the notes -- 23 MS. ANNA PERSCHY: I was just -- 24 COMMISSIONER SIDNEY LINDEN: -- first. 25 MS. ANNA PERSCHY: Yeah, I'm just trying
1191 to sort out -- 2 COMMISSIONER SIDNEY LINDEN: What's in 3 the notes -- 4 MS. ANNA PERSCHY: What it is. 5 COMMISSIONER SIDNEY LINDEN: -- and what 6 other comments that aren't in the notes that may have 7 affected her impression. 8 It's not fair to just confine her to her 9 notes of other matters, also affected her impression -- 10 MS. ANNA PERSCHY: I've got some -- 11 COMMISSIONER SIDNEY LINDEN: -- but 12 you're getting there? 13 MS. ANNA PERSCHY: -- questions -- yeah. 14 I've got some questions -- 15 COMMISSIONER SIDNEY LINDEN: You're going 16 at it one at a time. 17 MS. ANNA PERSCHY: -- with respect to 18 missing notes but -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MS. ANNA PERSCHY: -- at this point, I'm 21 simply dealing with what's in the notes. 22 THE WITNESS: Hmm hmm. And what is your 23 question again? 24 25 CONTINUED BY MS. ANNA PERSCHY:
1201 Q: And my question was, again, with 2 respect to this inference that you drew as to Ms. 3 Hutton's belief, if you could tell me which comment in 4 the notes or which comments in the notes led you to draw 5 that inference? 6 "A: The Premier is hawkish on this 7 issue will set tone for how we deal 8 with these issues over the next four 9 (4) years." 10 And something about how this may be the 11 time and place to move decisively. 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 14 CONTINUED BY MS. ANNA PERSCHY: 15 Q: Okay. Any other -- any other notes? 16 A: Of the September 5th meeting? 17 Q: Yes, that led you to draw this 18 inference? 19 20 A: I haven't recorded anything else. 21 Q: All right. 22 A: I have also testified that I believe 23 that Ms. Hutton -- I recall that Ms. Hutton made more 24 remarks than I -- I actually recorded in the notes. 25 COMMISSIONER SIDNEY LINDEN: That's --
1211 MS. ANNA PERSCHY: And we're going to 2 come to that now. 3 COMMISSIONER SIDNEY LINDEN: That's Mr. 4 Roy's objection, so you're coming to that? 5 MS. ANNA PERSCHY: Yes, yes, I am. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: I believe you testified that you 9 don't recall specifically what comments Ms. Hutton may 10 have made? 11 A: That's true. 12 Q: Now, you'll agree with me that you 13 regarded it from your testimony, let me back up a second, 14 that you drew some inferences from comments that weren't 15 -- that weren't recorded with respect to this issue, with 16 respect to your belief? 17 A: What I recall is that her tone, 18 generally, was fairly aggressive, surprisingly aggressive 19 to me and that's -- that's about how I would put it. 20 Q: So you read something into her tone 21 of voice? 22 A: Her tone of voice was, yes, suggested 23 to me an aggression, as I said, that surprised me. 24 Q: So are you saying that her tone of 25 voice is what led you to draw the inference that Ms.
1221 Hutton had some beliefs with respect to possibly being 2 able to direct police? 3 A: I'm sorry, could you repeat your 4 question? 5 Q: I'm asking if it's her tone of voice 6 that led you to the inference as to her possible belief-- 7 A: Hmm hmm. 8 Q: -- with respect to the issue of -- 9 A: Ms. Perschy, I don't know -- it's so 10 difficult to parse these things. You know, it was her 11 tone of voice, it was the context in which she was making 12 comments, it was her body language, it was -- you know. 13 So, you're asking me to dissect something 14 that -- that I can only say, all of those things in total 15 suggested to me that -- that there was -- there was an 16 aggression about Ms. Hutton's approach that surprised me 17 and I don't know that I can offer you more than that at 18 this point. 19 Q: Now, coming back to specific 20 comments -- 21 A: Hmm hmm. 22 Q: You'll agree with me that the typical 23 way to keep notes is to record what you regard as 24 significant, correct? 25 A: No. Actually, sometimes you --
1231 sometimes you're just rolling with what people are 2 saying. You don't know what they're going to say as it's 3 coming out of their mouth and so you're recording it and 4 maybe it's significant and maybe it's not. 5 And I think something else I would say is 6 that sometimes really significant issues engage your 7 attention so much that you forget to take notes about 8 them. 9 And so I can't say that there is 10 necessarily a direct correlation between the significance 11 of something which you can't anticipate, necessarily, as 12 it's, you know, being issued from somebody's mouth and -- 13 and whether you recorded it or not. 14 Q: But I take it, with respect to these 15 comments that you didn't record at the time, by the end 16 of the meeting, because you're saying that you had this 17 impression, cumulatively, you believed that some comments 18 had some significance, correct? 19 A: I'm not sure that that's what I -- 20 I'm sorry. 21 COMMISSIONER SIDNEY LINDEN: Sorry I -- 22 TTHE WITNESS: Well, I'm not sure that 23 that's what I testified to. 24 25 CONTINUED BY MS. ANNA PERSCHY:
1241 Q: Well, no but -- 2 A: I think what I -- 3 Q: -- that may not have been what you 4 testified to previously. I'm simply asking, because 5 you're testifying that you had an overall impression as a 6 result of body language, et cetera -- 7 A: Hmm hmm. 8 Q: -- tone of voice -- 9 A: Hmm hmm. 10 Q: -- and that you drew certain 11 inferences with respect to what that meant or what Ms. 12 Hutton meant and I'm suggesting to you that you came to 13 that impression by the conclusion of the September 5th 14 meeting; is that what you're saying? 15 A: Came to what conclusion? Ms. 16 Perschy, I'm really having difficulty following your 17 questions, I'm sorry. 18 MS. KATHERINE HENSEL: Excuse me, 19 Commissioner. I think it would be helpful if Ms. Perschy 20 could be a little bit more specific and clearer in her 21 questioning. 22 I'm having trouble discerning what she 23 means precisely with her questioning, so if she could 24 break it down a little bit or be more specific about what 25 she's talking about.
1251 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: Well, I thought I had been, but let 4 me summarize. If I understand your testimony, there are 5 -- in addition to the notes which are recorded on the 6 page -- 7 A: Hmm hmm. 8 Q: -- in addition to that there are some 9 comments that you didn't record that you then interpreted 10 and understood or you interpreted what it was that Ms. 11 Hutton's belief was, with respect to police operations? 12 COMMISSIONER SIDNEY LINDEN: I'm not sure 13 that's a fair summary. 14 MS. KIM TWOHIG: No, I agree, Mr. 15 Commissioner. 16 COMMISSIONER SIDNEY LINDEN: It's not -- 17 MS. KIM TWOHIG: She's testified about 18 what she understood and perceived based on her own 19 experience and she said what that was based on and that 20 she can't really go beyond that. 21 MS. ANNA PERSCHY: Let me just ask a 22 couple more questions. I appreciate we're almost at the 23 lunch hour. 24 COMMISSIONER SIDNEY LINDEN: Yes, we are 25 almost at the lunch hour.
1261 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: I understood your testimony that your 4 impressions, with respect to your inferences regarding 5 Ms. Hutton's beliefs, were cumulative, they weren't 6 simply limited to the notes that you have recorded, 7 correct? 8 A: Yes. 9 Q: And you testified that you didn't 10 necessarily appreciate, at the time that words were being 11 spoken, what their significance was? 12 A: That's right. 13 Q: And -- but I'm asking you, if by the 14 end of the meeting, you had appreciated that some 15 significant -- what you regarded as significant comments 16 had been made? 17 A: Significant comments by Ms. Hutton? 18 Q: With respect to -- with respect to 19 these -- these -- these discussions, this exchange that 20 you testified took place. 21 MS. KIM TWOHIG: I'm not sure I 22 understand the question, Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 what the question was. I'm sorry, do you want to 25 rephrase that last question?
1271 MS. ANNA PERSCHY: Yes. I can't recall 2 what my last question was, but -- 3 COMMISSIONER SIDNEY LINDEN: Well, I... 4 5 CONTINUED BY MS. ANNA PERSCHY: 6 Q: I'm simply asking, you testified that 7 you came to an overall impression and that was by the end 8 of the meeting of September 5th, correct? 9 You had some impressions at the end of 10 September -- the meeting of September 5th? 11 A: Yes. 12 Q: Why don't I do it simply this way? 13 Ms. Hipfner, did you make any memo to file or other 14 notation with respect to your collective, overall 15 impression of what occurred at that meeting? 16 A: You've asked me if made other notes 17 of the meeting -- 18 Q: Yes. 19 A: -- and my answer is I don't know. I 20 have no reason to believe that I did, but I simply don't 21 know. 22 23 (BRIEF PAUSE) 24 25 Q: And I'm going to suggest to you --
1281 COMMISSIONER SIDNEY LINDEN: Yes, Ms. -- 2 MS. KIM TWOHIG: Perhaps I can indicate 3 at this point that if such notes had been discovered they 4 would have been produced to Commission -- 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MS. KIM TWOHIG: -- Counsel. 7 COMMISSIONER SIDNEY LINDEN: I'm assuming 8 that they -- 9 MS. KIM TWOHIG: Yes, yes. 10 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 11 MS. KIM TWOHIG: And I don't believe 12 there are any such notes, if that's helpful. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 15 CONTINUED BY MS. ANNA PERSCHY: 16 Q: And I'm going to suggest to you, Ms. 17 Hipfner, that the reason there are no notes is because 18 you didn't make any and you didn't make any because at 19 the conclusion of the September 5th meeting, there was 20 nothing significant, from an overall impression or 21 otherwise, with respect to what had been said, and you 22 were satisfied with the notes that you had recorded of 23 that meeting. 24 MS. KATHERINE HENSEL: Perhaps -- sorry. 25 Perhaps it would be helpful if Ms. Perschy could break
1291 that question down? I think there were several questions 2 embedded in it and -- 3 COMMISSIONER SIDNEY LINDEN: Sometimes 4 when she tries to break it down it gets more complicated 5 so -- 6 MS. KATHERINE HENSEL: Yes. 7 COMMISSIONER SIDNEY LINDEN: -- I'm not 8 sure which is easier. I don't mean any disrespect, but 9 you want to get the -- I want to help you -- 10 MS. ANNA PERSCHY: This is the last -- 11 this is the last question on this point. 12 13 CONTINUED BY MS. ANNA PERSCHY: 14 Q: To your knowledge, there are no 15 notes, there are no other notes? 16 COMMISSIONER SIDNEY LINDEN: She's 17 already said that. 18 MS. ANNA PERSCHY: I'm just -- I'm just - 19 - I was -- 20 COMMISSIONER SIDNEY LINDEN: She's said 21 that. 22 MS. ANNA PERSCHY: -- asked to break it 23 down, so -- 24 COMMISSIONER SIDNEY LINDEN: No, but -- 25 MS. ANNA PERSCHY: -- I'm breaking it
1301 down. 2 COMMISSIONER SIDNEY LINDEN: Yes, but it 3 doesn't help to say something again that's already been 4 said, in this case, several times. She has no -- she 5 doesn't know. 6 I think that's what you said earlier? 7 THE WITNESS: That is what I said 8 earlier. 9 COMMISSIONER SIDNEY LINDEN: I think 10 that's what she said. 11 12 CONTINUED BY MS. ANNA PERSCHY: 13 Q: And I'm suggesting to you that there 14 are no other notes because you didn't feel the need to 15 make any other notes, Ms. Hipfner? 16 A: I don't know why there are no other 17 notes. I -- what do you mean by, feeling the need to 18 make other notes? 19 What would I feel a need to make notes 20 about, and I realize that you're the one who's supposed 21 to be asking the questions but it might help me if I 22 understood what it is that you're getting at? 23 COMMISSIONER SIDNEY LINDEN: You see, 24 it's the way you ask the questions, again, Ms. Perschy. 25 When you say, "you didn't feel the need" to make notes, I
1311 mean what -- 2 THE WITNESS: I'm not a compulsive note 3 maker. 4 COMMISSIONER SIDNEY LINDEN: Yes. She 5 made a note of the meeting and she doesn't know of any 6 other notes that she made. I'm not sure where you're 7 going. 8 MS. ANNA PERSCHY: Well, I'm suggesting 9 to you that at the conclusion of the meeting on September 10 5th, you did not, in fact, have the impression that 11 you've testified to today. 12 COMMISSIONER SIDNEY LINDEN: Oh. 13 THE WITNESS: At the end of the meeting, 14 on September the 5th, I can say I felt a certain amount 15 of disquiet about what had happened during the meeting of 16 September 5th. 17 There had been -- leading up to the 18 election of the new government in June of 1995, and then 19 after that, a great deal of apprehension on my part and 20 on the part of my colleagues about what the election of a 21 Conservative government was going to mean for the work 22 that we did. 23 And I would say this was my first direct 24 exposure to anybody representing that newly elected 25 government. And -- and I would say that, at the end of
1321 the meeting on September 5th, 1995, the perception I had 2 developed or as you would call it, was that perhaps many 3 of our concerns were -- were well justified. 4 I -- I found -- I found the meeting of 5 September 5th disquieting in that regard. And so no, I 6 didn't make any notes about it, we were just becoming 7 acquainted with our new political masters. 8 And -- and they had made a distinct 9 impression on me that day and one that did not leave me 10 feeling very comfortable. But I can't say that I rushed 11 off and started making notes to file about it. We were 12 just becoming acquainted with the new government. 13 And -- and realizing, as I said, that the 14 concerns that we had been discussing among ourselves 15 might, in fact, hold water. 16 COMMISSIONER SIDNEY LINDEN: Do you want 17 to pursue this or do you want to break for lunch? 18 MS. ANNA PERSCHY: Well, we might as well 19 break for lunch at this -- at this point, Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. We'll break for lunch now. 22 THE REGISTRAR: This Inquiry stands 23 adjourned until 2:25 p.m. 24 25 --- Upon recessing at 1:13 p.m.
1331 --- Upon resuming at 2:26 p.m. 2 3 THE REGISTRAR: This Inquiry is now 4 resumed. Please be seated. 5 COMMISSIONER SIDNEY LINDEN: Ms. Perschy, 6 could you give me some indication of how long you think 7 you might be. 8 MS. ANNA PERSCHY: Well, it's taken me 9 much longer than I -- than I had anticipated. I'm not 10 quite sure. I -- I would assume -- I'm certainly more 11 than halfway through; I would say two-thirds of the way 12 through at this -- at this point. 13 And hopefully it'll -- it'll be much 14 faster with respect to -- to areas that I'm now going to 15 cover. 16 COMMISSIONER SIDNEY LINDEN: You had 17 originally estimated two (2) hours. 18 MS. ANNA PERSCHY: Yes. 19 COMMISSIONER SIDNEY LINDEN: And you're 20 well past that now. So, I would hope that you would make 21 your best effort to -- 22 MS. ANNA PERSCHY: I'm absolutely going 23 to make my best efforts to move this forward. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much.
1341 2 CONTINUED BY MS. ANNA PERSCHY: 3 Q: Ms. Hipfner, we were talking about 4 the meeting on September the 5th, 1995 and you testified 5 in-chief that Elizabeth Christie, at the meeting, 6 indicated that there were five (5) options and you 7 referred to your notes in regard to that. 8 And Ms. Jai testified that following the 9 meeting of September the 5th there was a legal review of 10 the statutes that were referred to at the meeting on 11 September 5th. 12 I take it you weren't a part of that 13 meeting? 14 A: No, I wasn't. 15 Q: And if you could just turn to Exhibit 16 P-634, which I believe you have in front of you, that's 17 the memo in regard to criminal and civil proceedings 18 which is Document Number 1011745. 19 A: You know, I have a number of things 20 in front of me, Ms. Perschy. Does it have a date or if 21 it's a memorandum it's -- 22 Q: It's -- it's got -- it's got an 23 exhibit number. It's a memorandum. I think it's just 24 above your binder. 25 A: So, it's entitled, Criminal and Civil
1351 Proceedings to Terminate the Occupation of Ipperwash 2 Provincial Park by the Stoney Pointers'? 3 Q: That's -- that's the one. And I was 4 simply going to ask you, have you seen this memorandum 5 before? 6 A: I don't think I have, no. 7 Q: Now, you testified that on September 8 the 6th after Ms. Hutton made the comment about the 9 Premier taking the lead in regards to communications, 10 which you were somewhat sceptical about, Ms. Hutton told 11 the group at the meeting that she was going to call the 12 Premier and that at that point all the other political 13 staff got up and went out too. 14 Do -- do you recall giving that testimony? 15 A: Yes. 16 Q: And did they all stand up in unison 17 or did Ms. Hutton stand up first and then the others? 18 Did you have any recollection as to the 19 details? 20 A: No, I don't. 21 Q: So, you don't know which political 22 staff you recall standing up and -- and walking out? 23 A: I remember Ms. Hutton saying that she 24 was going to be -- that she was going to telephone the 25 Premier and -- and leaving the room and other people
1361 leaving the room with her. 2 Q: And I think you actually testified 3 that you weren't sure if she had said the Premier or the 4 Premier's office. 5 A: That's right. On the meeting of 6 September 5th when she said that she was phoning the 7 Premier, I am completely certain that that's what she 8 said. 9 I did say that on the -- on the -- during 10 the meeting on the 6th, it was less surprising, and that 11 while I believe she said she was calling the Premier, she 12 may in fact have said that she was calling the office or 13 the Premier's office; that I'm less certain and wouldn't 14 bet my life on it. 15 Q: All right. But, you didn't just 16 testify that Ms. Hutton got up and -- and left, you 17 indicated that the political staff did as well. 18 A: That Most or all of the political 19 staff left, as well. 20 Q: And -- and I believe your testimony 21 was that they then all returned again. 22 A: No. Actually I don't know that they 23 all returned again. I know that Ms. Hutton returned 24 again. But I actually have less of a recollection about 25 people filtering back into the room than I do about them
1371 leaving the room. 2 Q: Well Ms. Jai testified that she 3 doesn't even recall if Ms. Hutton stepped out of the 4 September 6th meeting at all. I'm going to suggest that 5 whether or not Ms. Hutton stepped out at all, and frankly 6 she doesn't recall, I believe that'll be her -- her 7 anticipated evidence, it wasn't particularly noteworthy. 8 A: My recollection is that Ms. Hutton 9 again announced that she was going to be phoning the 10 Premier and left the room and that most of the political 11 staff left with her. 12 Q: If -- 13 A: Possibly all of the political staff. 14 Q: If I understood you correctly you 15 understood that Ms. Hutton, you inferred -- you assumed 16 that Ms. Hutton was going to check this point about the 17 Premier taking the lead in regard to communications; is 18 that right? 19 A: Yes. What happened of course was 20 that she -- and I'm going to refer to my notes which are 21 at page or at Tab what, the -- the notes of the 16th or 22 the 6th of September? Tab 17? 23 Q: Tab 17, yes. I believe that's right. 24 A: Yes. This was toward the end of the 25 meeting. It's at my handwritten page 7 is that Ms. --
1381 Ms. Hutton said that the Premier will take the lead. 2 And then as I said she hesitated and said, 3 well, of course this was a matter that would have to go 4 to Cabinet and she said, But I suspect the Premier will 5 be pleased to take the lead. 6 And that it was after that that she said 7 that she better make a phone call or that she was going 8 to make a phone call. 9 Q: Did you know the Cabinet was meeting 10 on September 6th, 1995, Ms. Hipfner? 11 A: No. 12 Q: Did it occur to you that Ms. Hutton 13 might have issues other than those which were discussed 14 at the IMC meeting on September 6th? 15 A: I wouldn't have known what issues Ms. 16 Hutton was dealing with. 17 Q: And you -- and you didn't ask her? 18 A: No. 19 Q: And you testified that on September 20 5th at some point Ms. Hutton had stood up and announced 21 that she was going to call the Premier, and I think I 22 made a note that -- that at the time you just about fell 23 off your chair? 24 A: Hmm hmm. 25 Q: Can you tell me when in the meeting,
1391 in reference to your notes, this -- this somewhat 2 dramatic departure took place? 3 A: No, I actually can't locate it in my 4 notes. I mean I -- it's not in my notes and when I look 5 at my notes I am not reminded of the point in time at 6 which this would have happened. 7 Q: Okay. You testified that you felt 8 that her comment was -- was some sort of rebuke -- 9 A: Yes. 10 Q: -- to everyone. 11 A: Yes. 12 Q: None of the other witnesses, who have 13 testified so far, have even mentioned this, either the 14 departure or her commenting. 15 A: Hmm hmm. 16 Q: And I anticipate that Ms. Hutton will 17 testify that she doesn't recall leaving the meeting at 18 all. And I'm going to suggest that whether or not she 19 may have left the meeting it wasn't the dramatic 20 departure that you described and that you're exaggerating 21 somewhat. 22 A: I've given you my evidence on that 23 point. 24 Q: Turning back to the meeting of 25 September 6, 1995, you testified that you talked about
1401 the situation at Oka at some point in the meeting? 2 A: I did. 3 Q: And you testified that you had read 4 previously a critique about police having been directed 5 at Oka and that that may have contributed to the tragic 6 death of a police officer. 7 Do -- do you recall giving that testimony? 8 A: I'm sorry, could you -- could you 9 repeat that? 10 Q: Sorry. You testified previously that 11 you had read sometime prior to this meeting -- 12 A: Hmm hmm. 13 Q: -- a critique about police having 14 been directed at Oka and that that may have contributed 15 to the tragic death of -- 16 A: Yes. 17 Q: -- the police officer? 18 A: Yes. 19 Q: Are you saying that you said that at 20 the meeting on September the 5th? 21 A: About having read something? 22 Q: Yes. 23 A: No, I didn't mention that I had read 24 something. 25 Q: And you -- I -- I understood that you
1411 made the point at the Interministerial Committee Meeting 2 about learning the lessons of Oka? 3 A: Hmm hmm. Yes. 4 Q: Okay. And that quite apart from the 5 impropriety of purporting to direct police operations 6 it's a bad idea because it could affect the safety of 7 police officers. 8 And occupiers and my question is: Are you 9 saying that you said all of those things at the meeting? 10 A: Yes. I don't think I said much more 11 than that, but I said that. 12 Q: Well, again, we've heard some 13 testimony with respect to these meetings and none of the 14 previous witnesses who have testified have mentioned such 15 a comment. 16 A: Hmm hmm. 17 Q: And under the circumstances it's, I 18 suggest, somewhat surprising that no one else would 19 recall these comments made by you. Now, I'm suggesting 20 that maybe you thought some of these things, but didn't 21 actually express them at the meeting. 22 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 23 Twohig...? 24 MS. KIM TWOHIG: I'm not sure if that's 25 a question that's being put to the Witness or a statement
1421 that's being made by My Friend. 2 MS. ANNA PERSCHY: It's a suggestion. 3 4 (BRIEF PAUSE) 5 6 THE WITNESS: I have a very clear 7 recollection of having made that statement at the 8 meeting. 9 10 CONTINUED BY MS. ANNA PERSCHY: 11 Q: But there's no notes? You didn't -- 12 A: I didn't -- 13 Q: -- make any notes about that? 14 A: I didn't make any notes about it. 15 Q: And you're not aware that anybody 16 else made any notes about it? 17 A: I am advised that nobody else made 18 any notes about it. 19 Q: Now, your notes of September 5th do 20 not make reference to the government protocol of no 21 direction of police operations, but your notes of 22 September 6th -- 23 A: Hmm hmm. 24 Q: -- do refer to the protocol, correct? 25 A: I think that's true.
1431 Q: Okay. If we can turn to your notes 2 of September the 6th. 3 4 (BRIEF PAUSE) 5 6 Q: I'm looking at page 3. 7 8 (BRIEF PAUSE) 9 10 Q: The first time in your notes that the 11 protocol is referred to is when the executive assistants 12 are reporting back to the Interministerial Committee the 13 directions from their ministers. 14 We've got Jeff Bangs advising as to his 15 minister's views and position and in the comments that 16 you've attributed to Peter Sturdy, the comments from Dave 17 Moran and then the comment from Kathryn Hunt. 18 And it's, according to your notes, Kathryn 19 Hunt describes the protocol about not being involved in 20 the day to day operation of police. 21 And I'm going to suggest to you that 22 that's clearly in the context of her explaining why her 23 minister doesn't want to speak to the Ipperwash 24 situation? 25 A: I don't know that that's the case.
1441 It follows a discussion about who should speak, but I 2 can't say that it necessarily is related to the earlier 3 discussion about who should and shouldn't speak. 4 Q: Well -- 5 A: About the issues. I don't -- I don't 6 know. What you're asking me is what Ms. -- if you're 7 asking me what Ms. Hunt intended by that, I don't know. 8 Q: I'm simply asking you what you 9 understood that she intended? 10 A: I don't recall what I -- 11 Q: Or did you have -- 12 A: -- understood. 13 Q: -- an understanding? 14 A: I don't recall what I understood. 15 Q: And you don't record Ms. Hutton as 16 saying anything at all in response to Ms. Kathryn -- to 17 Ms. Hunt's -- 18 A: The next comment I -- 19 Q: -- comment? 20 A: -- have is Dave Moran saying that 21 there's a huge concern about the safety of the officers-- 22 Q: So that's a "yes"? 23 A: -- and inquiring about the injunction 24 process, which is also not a comment that is not related 25 to public messaging or who should --
1451 Q: Right. 2 A: -- who should lead us, so no. 3 Q: Okay. Now, you have notes at page 7 4 of your notes which you attribute to Ms. Hutton -- 5 A: Hmm hmm. 6 Q: -- where she says something about her 7 difficulty is not wanting to give political direction to 8 the OPP and -- 9 A: That's right. 10 Q: -- you testified that you interpreted 11 her comment to indicate that she understood the advice 12 but didn't like it, and she was being ironic? 13 A: That's right. 14 Q: And according to you, your 15 recollection was that there was a heated discussion about 16 political direction on September 6th. 17 Do you recall giving that testimony? 18 A: Yes. And what -- what my belief is 19 that -- that -- that discussion preceded this -- this 20 comment from Ms. Hutton. I was asked in-chief if I 21 remembered what -- at what point in the meeting that 22 discussion took place and I said, no, but I -- I do know 23 that it preceded that -- that remark from Ms. Hutton. 24 Q: Well, Scott Hutchison testified that 25 he didn't recall anyone suggesting that the government
1461 could direct the OPP with respect to operational 2 decisions and that he would have remembered such a 3 suggestion. 4 Now, Scott Hutchison was there in person, 5 just like you -- 6 A: Hmm hmm. 7 Q: And he had an opportunity to observe 8 Ms. Hutton and I'm going to suggest to you that whatever 9 comments you heard, you misunderstood her at the time? 10 A: No. There are four (4) things I 11 remember about that discussion. They do not include how 12 lengthy the discussion was; I don't know whether it was a 13 lengthy discussion or a few points that were made with 14 the -- the sort of sharp voices. 15 But what I recall, first of all -- I've 16 just lost my train of thought, I'm going to have to 17 gather it again. 18 19 (BRIEF PAUSE) 20 21 A: The thing that I recall, primarily, 22 is that Ms. Hutton didn't -- I don't recall Ms. Hutton 23 making any sort of contribution, verbally, to the 24 discussion. That -- that what was happening is that she 25 was indicating through body language that she was -- I
1471 thought she was indicating that she was resistant to the 2 messages that she was hearing. 3 She certainly heard my remark about Oka 4 which was not, you know, a casual discussion of an 5 academic nature. I mean I felt compelled to make a 6 remark about Oka because it did not seem that Ms. Hutton 7 -- it did not seem to me that Ms. Hutton was accepting 8 the information that she was being given. 9 What I recall, very clearly, is that she - 10 - her arms were folded, that they were sort of at -- what 11 I can only describe is a scowl on her face. And that as 12 people were making these remarks to her about -- directed 13 at the issue of the OPP or being -- being in a position 14 to always exercise their own discretion about operational 15 matters. 16 What I recall is that she would sort of 17 turn her head from the speaker and roll her eyes. And I 18 know this -- I remember this because of course I wasn't 19 writing anything. I was watching Ms. Hutton as she was 20 doing this. 21 So what I recall about the meeting is that 22 I don't remember the length of the meeting. I remember 23 that at some portion there were some heated comments 24 made, directed at Ms. Hutton, who seemed to be resisting 25 them with her body. And that -- and that I wasn't making
1481 notes because I was -- I think I was just caught up in 2 the conversation. 3 And then, subsequently, Ms. Hutton made 4 this remark that I've recorded at page 7, it says you 5 know: 6 "My difficulty is not wanting to give 7 political direction to the OPP." 8 Well of course that's not a difficulty at 9 all. She didn't want to give political direction to the 10 OPP and she had just been told that of course she 11 couldn't give political direction to the OPP. 12 So, normally, of course, when somebody 13 realizes that they can't do something that they don't 14 want to do anyway, they don't describe that as a 15 difficulty. They may describe that as -- as a -- as 16 being a relief, frankly, that -- that I didn't want to do 17 it and guess what, it turns out I can't do it anyhow. 18 But, it was the delivery of this comment 19 rather than the issue around her describing this is a 20 difficulty that has stayed with me now for ten (10) 21 years. And what I remember about it is -- is the ironic 22 delivery of it with sort of a, you know, my difficulty -- 23 my difficulty she said is not -- don't want to give 24 political direction to the OPP, is recognizing that she 25 didn't really mean that her difficulty was in not wanting
1491 to give political direction to the OPP. 2 Her difficulty was that she couldn't give 3 political direction to the OPP. And this follows the -- 4 the discussion that I have just described to you where I 5 was one person -- I don't remember who else was involved 6 in it, was trying to make the point to her that you can't 7 give political direction to the OPP. 8 It's not something that anybody who's not 9 a police officer can do, this being met with the degree 10 of resistance, you know, reflected in her body language. 11 And then, finally, the -- the 12 acknowledgement by Ms. Hutton, somewhat grudging, but the 13 acknowledgement, finally, that, in fact, she recognized 14 that she couldn't give political direction to the OPP. 15 And she did two (2) things that I recall. 16 She characterized it as a difficulty as 17 I've recorded it. And she also, you know, I'm not -- the 18 other thing that I remember about this is sort of a self 19 reference, you know, the self reference in this -- in 20 this remark about -- 21 Q: The "my?" 22 A: -- yeah, My difficulty is not wanting 23 to give political direction to the OPP. 24 Q: Well let's take a look at your 25 notation. And this is, of course, what you've just
1501 testified to is your interpretation, first, of her body 2 language -- 3 A: Yes. 4 Q: -- and then with respect to the 5 comment that is in your written notes. 6 A: Yes. 7 Q: All right. So let's look at that 8 notation. That comment comes after, I'm just trying to 9 put it in context. You'll see on the previous page which 10 I believe is page 6, there's the -- Dave Carson providing 11 his legal opinion that any discovery of human remains 12 wouldn't detract, in any way, from Ontario's title to the 13 Park. 14 And then after that there's a comment by 15 Chris regarding diffusing tensions and not using the 16 mayor or Beaubien, right? 17 A: Hmm Hmm. Yes. 18 Q: And then -- and then there's your 19 comment. Or that there's your notation with respect to 20 the comment you attributed to Ms. Hutton. 21 A: Yes. 22 Q: Right. Could you look at Ms. Jai's 23 notes at page 6? 24 A: I'm sorry. Where are Ms. Jai's 25 notes?
1511 Q: Sorry. They're Tab -- 2 COMMISSIONER SIDNEY LINDEN: 15. 3 4 CONTINUED BY MS. ANNA PERSCHY: 5 Q: Tab 15. Thank you. And this time 6 around, her September 6th notes are in the front -- 7 A: Hmm hmm. 8 Q: -- and her September 5th notes are in 9 the back. 10 If you could go to page 6 of Ms. Jai's 11 notes? 12 A: So that would be the first page 6? 13 Q: I believe it's page 6. And actually 14 if you go -- there's the three (3) notations down there, 15 the comments: 16 "Re. Possible burial ground." 17 Do you see that? The page before. 18 A: Sorry. 19 Q: Sorry. Do you see the notations? 20 A: Yes, I do. 21 Q: Yeah. There's the notations with 22 respect to: 23 "Re: Possible burial ground." 24 And the comment: 25 "Doesn't affect ownership."
1521 And some references -- 2 A: Hmm hmm. 3 Q: -- to the Cemeteries Act. 4 A: Hmm hmm. 5 Q: And then a comment attributed to Tim. 6 Then references to Marcel Beaubien. 7 A: Hmm hmm. 8 Q: And then the comment by Dave Moran: 9 "Marcel Martin appropriate person to do 10 this." 11 And then there's some references to a 12 local spokesperson being the OPP and then Ms. Jai has 13 some references which are attributed to Deb. Do you -- 14 do you see that in the notes? 15 A: I've seen that, yeah. 16 Q: Now, I anticipate that Ms. Hutton's 17 evidence will be that she was well aware of the protocol 18 regarding the government not directing police operations, 19 even prior to September the 5th. 20 And that her evidence will be that she 21 accepted that premise, that protocol, and had absolutely 22 no intention of trying to direct or otherwise influence 23 police operations. And that her sole focus was to have 24 the committee identify and evaluate all of the possible 25 government responses.
1531 And I take it you didn't know what she 2 knew or what she intended? 3 A: There was a lengthy discussion -- 4 well, I don't know that it was lengthy, but there was a 5 discussion on September 6th that became quite heated at 6 which I recall people explaining and directing their 7 comments to Ms. Hutton on this point, that political 8 staff, government, could not direct the operations of the 9 OPP and being met with this, as I said, physical -- you 10 know physical suggestion of resistance to these -- to 11 these -- to the advice that was being provided to her. 12 But ultimately, and I do say this, 13 ultimately an acknowledgement from Ms. Hutton, somewhat 14 grudging, but an acknowledgement from Ms. Hutton that 15 gave me tremendous comfort I remember, feeding back to 16 people that, yes, you know I'm -- I'm not too happy about 17 this, but I accept that, you know, we can't provide 18 political direction to the OPP. She described it as -- 19 as a difficulty for her, but she seemed to accept it. 20 Q: And, Ms. Hipfner, you'd already 21 previously described your inferences, and my simple 22 question was that you didn't know until today what Ms. 23 Hutton knew with respect to the protocol or what she 24 intended by either her remarks -- 25 COMMISSIONER SIDNEY LINDEN: She --
1541 MS. ANNA PERSCHY: -- or her body 2 language. 3 COMMISSIONER SIDNEY LINDEN: She still 4 doesn't. She knows you've -- 5 MS. ANNA PERSCHY: Well, she doesn't 6 know, that's true. 7 THE WITNESS: Yeah I don't know. 8 MS. ANNA PERSCHY: You -- you don't know 9 to this day? 10 COMMISSIONER SIDNEY LINDEN: She still 11 doesn't know. 12 THE WITNESS: No. 13 MS. ANNA PERSCHY: You don't know? 14 15 CONTINUED BY MR. ANNA PERSCHY: 16 Q: And, Ms. Hipfner, you never asked Ms. 17 Hutton at the time whether she knew about the protocol 18 regarding government not directing the police, correct? 19 You didn't ask her? 20 A: I didn't ask her, no. 21 Q: I anticipate that Ms. Hutton's 22 evidence will be that her comments are reflected in Ms. 23 Jai's notes which are set out at page 7 and that her 24 evidence will be that, toward the end of the meeting on 25 September 6, she commented on her belief that MNR, as the
1551 property owner, can ask if the OPP can remove the 2 occupiers. 3 And do you recall her asking that question 4 as recorded in Ms. Jai's notes? 5 A: Hmm hmm. 6 Q: Or making that comment? 7 A: It's not inconsistent with what I 8 remember about the meeting, but I -- I'm not sure that I 9 specifically recall it. 10 Q: All right. And do you recall that 11 Scott Hutchison effectively confirms the prior comment 12 made by Deb: 13 "You can ask to remove them, you can't 14 insist or demand that they be removed?" 15 A: That's consistent with what I 16 recollect, generally about the meeting, but I don't 17 recall Scott specifically saying that. 18 Q: And then I anticipate the evidence of 19 Ms. Hutton will be that she then asked, as a factual 20 matter, whether or not that had been done. Has MNR asked 21 OPP to remove them? Do you recall that factual question 22 being asked? 23 A: Is that in my -- 24 Q: By Ms. -- it's in Ms. Jai's notes. 25 A: Ms. Jai's notes, but I'm wondering
1561 whether it's in my -- actually I guess if I have to check 2 I don't -- I don't have an independent recollection of 3 it. Though it's entirely consistent with what I do 4 remember generally about the meeting. 5 Q: Okay, yeah. And I anticipate that 6 Ms. Hutton's evidence will be that she added that they 7 could be formally requested to so, while recognising that 8 how and when was up to the OPP? 9 A: Who said that? 10 Q: Deb said that. Do your recall her 11 making a comment along those lines? 12 A: I don't recall it. 13 Q: I anticipate that Ms. Hutton's 14 evidence will be that she then addressed a possible 15 communication message about MNR making the request and 16 was concerned that the communication message be sensitive 17 to the parameters of the protocol. 18 And Ms. Jai's notes indicate: 19 "Could have that as communication 20 message. MNR has formally asked that 21 they remove them." 22 And do you recall that -- that suggestion 23 being made? 24 A: I's consistent with the discussions I 25 -- as I generally recall it, but I don't specifically
1571 recall those comments being made. 2 Q: All right. I suggest that your note, 3 if we can now back to your note... 4 5 (BRIEF PAUSE) 6 7 Q: Your note regarding Ms. Hutton's 8 difficulty -- 9 A: Hmm hmm. 10 Q: -- is simply a reference to Ms. 11 Hutton's concern about the communication message, staying 12 within the parameters of the protocol? 13 A: No. 14 Q: I'm suggesting to you that you 15 completely misinterpreted what she said. 16 A: No. 17 Q: Well, Ms. -- Ms. Hipfner, you don't 18 know what she meant by her words, correct? 19 You don't know. You -- 20 MS. KATHERINE HENSEL: I'm sorry. My 21 Friend's question sounds like argument. The Witness has 22 already testified that she doesn't -- she doesn't know. 23 She's basing it on her own interpretations and beliefs. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. KATHERINE HENSEL: We've been quite
1581 clear in that regard. 2 COMMISSIONER SIDNEY LINDEN: And you've 3 already gone over this -- you've already gone over this. 4 5 (BRIEF PAUSE) 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: And I take it you didn't ask Ms. 9 Hutton what she meant by any of her comments, did you? 10 A: No, I didn't. 11 Q: Okay. 12 13 (BRIEF PAUSE) 14 15 Q: You testified that following the 16 meeting on September 6th, you went for Chinese food with 17 Dave Carson, Leslie Currie and a couple of other lawyers, 18 correct? 19 A: That's right. 20 Q: Did you take your lunch back to your 21 office or did you -- did you sit down in a restaurant? 22 A: We sat down in a restaurant and had 23 lunch together. 24 Q: And you testified that you discussed 25 the Interministerial Committee meetings in some detail
1591 but you don't recall what. 2 A: I didn't say, "in some detail". I 3 said we discussed the -- the Committee meetings. I don't 4 remember what kind of detail we discussed those meetings 5 in at the lunch. 6 What I said was I don't remember any of 7 the details of the discussion. 8 Q: Okay. Well, the subject matter of 9 the Aboriginal Committee's -- the Aboriginal Emergencies 10 Committee meetings was to identify and evaluate the legal 11 opinions with respect to the Government's response? 12 A: I;'m sorry, what meeting was -- 13 Q: The two (2) meetings, on September 14 5th and 6th which were which -- 15 A: I don't think they were legal, sort 16 of, intended necessarily as legal meetings, although they 17 did, in fact, address legal issues. 18 Q: Right. 19 A: Yes. 20 Q: So, you discussed legal advice in 21 regards to these matters over lunch in a public 22 restaurant; is that what you're saying? 23 A: The vast majority of my lunches are 24 probably like most peoples, eaten at their desk. On the 25 occasion, when my colleagues and I go out for lunch, we
1601 invariably discuss business. There are not enough hours 2 in the day to sort of get business done without talking 3 about these things over lunch. 4 We are very cognizant of our obligation to 5 maintain the confidential nature of what we do as -- as 6 civil servants and -- and ensure that our discussions are 7 conducted in way that maintain that confidentiality. 8 And I have no reason to believe that that 9 was not also the case on that day. 10 COMMISSIONER SIDNEY LINDEN: Do you have 11 some evidence to suggest that somebody overheard this 12 conversation? 13 MS. ANNA PERSCHY: No, that's not where I 14 was going at all. 15 COMMISSIONER SIDNEY LINDEN: Okay. 16 17 (BRIEF PAUSE) 18 19 CONTINUED BY MS. ANNA PERSCHY: 20 Q: So, when you were speaking at this 21 lunch, you didn't provide a complete detailed account of 22 everything that was being discussed at these -- at these 23 meetings? 24 A: I have no recollection of what was 25 discussed at the lunch.
1611 Q: We know from Ms. Jai's testimony that 2 Leslie Currie had no involvement in the Ipperwash 3 situation in 1995 at that point, and that's right? 4 A: I'm sorry? 5 Q: That's correct. Ms. Currie didn't 6 attend the meetings, correct? 7 A: No, she didn't attend the September 8 5th and 6th meetings. 9 10 (BRIEF PAUSE) 11 12 Q: I;'m going to suggest -- 13 MS. KIM TWOHIG: Excuse me. I'm sorry, 14 Mr. Commissioner, I thought that was a double-barrelled 15 question, and that My Friend made a statement that Ms. 16 Currie had no involvement -- 17 COMMISSIONER SIDNEY LINDEN: No, she -- 18 MS. KIM TWOHIG: -- and then asked the 19 Witness -- 20 COMMISSIONER SIDNEY LINDEN: -- she -- 21 MS. KIM TWOHIG: -- whether she had 22 attended the meeting on September 6th. 23 COMMISSIONER SIDNEY LINDEN: It's the 24 latter part that's the question. 25 MS. KIM TWOHIG: Yes.
1621 COMMISSIONER SIDNEY LINDEN: The former 2 part is not part of the question. She didn't attend the 3 meeting. 4 MS. ANNA PERSCHY: I was going to ask the 5 next question. 6 MS. KIM TWOHIG: Thank you. 7 8 CONTINUED BY MS. ANNA PERSCHY: 9 Q: Ms. Jai's testimony went further than 10 that and she indicated that Leslie Currie had no 11 involvement with respect to the Ipperwash situation at 12 this point in time, September 4th, 5th, 6th of 1995. 13 A: I think that's accurate. 14 Q: Yes. 15 16 (BRIEF PAUSE) 17 18 Q: I'm going to suggest that you were 19 simply gossiping with your colleagues over lunch at this 20 meeting. You didn't have any business reason to speak to 21 Leslie Currie in regards to these matters. She wasn't 22 involved in the Ipperwash situation. 23 MS. KIM TWOHIG: The Witness has 24 testified that she doesn't recall what was discussed, and 25 I'm concerned that My Friend may be making her own
1631 assumptions -- 2 COMMISSIONER SIDNEY LINDEN: Yes -- 3 MS. KIM TWOHIG: -- that are not entirely 4 fair. 5 MS. ANNA PERSCHY: Well, Ms. Hipfner -- 6 COMMISSIONER SIDNEY LINDEN: If she 7 doesn't know what she was talking about, I'm not sure 8 what more you can get. 9 10 CONTINUED BY MS. ANNA PERSCHY: 11 Q: Well, Ms. Hipfner, do you recall any 12 reason why you would be talking about these matters with 13 Leslie Currie over lunch when she wasn't involved in the 14 Ipperwash situation? 15 MS. KIM TWOHIG: Excuse me, Mr. 16 Commissioner. She hasn't said she was discussing these 17 matters. 18 COMMISSIONER SIDNEY LINDEN: Well, she -- 19 I think she -- well, anyway, I think she may have said in 20 a general way. I don't remember -- you don't remember 21 what you -- 22 THE WITNESS: I remember -- 23 COMMISSIONER SIDNEY LINDEN: -- were 24 talking about. 25 THE WITNESS: -- I remember that we
1641 discussed -- that we were talking about the situation at 2 Ipperwash and something about the meetings would have 3 been conveyed, but I don't remember what. 4 5 CONTINUED BY MS. ANNA PERSCHY: 6 Q: No, and that wasn't my question, Ms. 7 Hipfner. You misunderstood me. 8 A: I'm sorry. 9 Q: My question was: Since Leslie Currie 10 wasn't involved in the Ipperwash situation, I'm asking 11 you why it is that you were discussing these issues with 12 her at all over lunch. 13 A: I don't remember what we were 14 discussing and so it's difficult to say why we were 15 discussing it. 16 17 (BRIEF PAUSE) 18 19 Q: Could you turn to Tab 32 of 20 Commission Counsel's documents? 21 22 (BRIEF PAUSE) 23 24 Q: These are minutes of the -- or it's a 25 summary of the meeting of the support group Ipperwash
1651 Provincial Park, dated November 29th, 1995, and you're 2 listed as one of the attendees? 3 A: Yes, I am. 4 Q: And do you recall attending this 5 meeting? 6 A: No. 7 Q: Okay. This document indicates, and 8 I'm looking at the updates from the SGC on the first 9 page, that Robert Reid, the Federal Government's 10 appointed, quote/unquote, "mediator has completed his 11 assignment" and that he'd completed his report regarding 12 the return of camp Ipperwash. 13 And then in the next bullet it states: 14 "It should be noted that Mr. Reid 15 experienced great difficulty in trying 16 to meet with the Stoney Pointers to 17 resolve the issue. 18 This was due to the fact that the 19 Stoney Pointers believed that Mr. Reid 20 was a negotiator, i.e., someone who had 21 authority to negotiate a settlement. 22 However, this was not the case. Mr. 23 Reid's role was to act as a mediator or 24 a fact finder." 25 And do you have any recollection of being
1661 advised of that information, Ms. Hipfner? 2 A: No, I don't. 3 Q: But, you have no reason to believe 4 that that -- that update wasn't provided at this meeting? 5 A: It probably was provided at the 6 meeting but I don't recollect it. 7 8 (BRIEF PAUSE) 9 10 Q: I've got one (1) more document for 11 you but it's a very short one. It's just an e-mail. For 12 the assistance of My Friends, it's Document 1004189. 13 It's an e-mail from you to Yan Lazor dated April 18th, 14 1996. 15 And it refers to your discussion with 16 Peter Allen. And it then appears that you are then 17 communicating this information to Yan Lazor. 18 "Maynard George, one of the occupiers, 19 had a discussion with the Clerk 20 Administrator of the Township, Ken 21 Williams, demanding fifty thousand 22 dollars ($50,000) to oversee the 23 construction of a water main. He told 24 Ken that if they weren't paid, they 25 would block the construction of the
1671 water main." 2 And in point 2: 3 "Onfire is going to the meeting on 4 April 28th. Maynard George has told 5 the president of Onfire that he wants 6 to speak at that meeting and that if 7 he's not permitted to, his people will 8 occupy Pinery Provincial Park. 9 Peter says that Maynard George's 10 threats should be taken fairly 11 seriously as he's generally delivered 12 on them in the past and Les Kobayashi 13 reports that the Warriors seem to be 14 mobilizing again and that the OPP are, 15 in fact, pretty concerned about the 16 Pinery." 17 Do you recall getting this -- sorry, do 18 you recall getting this information and then providing it 19 to Yan Lazor? 20 A: I recall the information contained in 21 my point number 1. The rest is -- I mean, I certainly 22 don't doubt that I did get this information from Peter 23 Allen and that I did pass it onto Yan Lazor, but I don't 24 remember -- 25 Q: Okay.
1681 A: -- the points that are made in it. 2 COMMISSIONER SIDNEY LINDEN: Do you have 3 an objection, Ms. Hensel, or are you passing? 4 MS. KATHERINE HENSEL: Based on the 5 examination-in-chief and, you know, the scope of this 6 Inquiry, I'm -- I'm having a difficult time envisioning 7 how this could be relevant to the events of September 8 1995. 9 COMMISSIONER SIDNEY LINDEN: Well, I'm 10 not sure. Are you going any further with this or is that 11 as much you're going to ask about this? 12 MS. ANNA PERSCHY: I just had one (1) 13 question and then I was going to turn to a -- to a 14 document that was -- which was in Commission Counsel's 15 documents. So, I just -- I just have one (1) question. 16 17 CONTINUED BY MS. ANNA PERSCHY: 18 Q: And the one question, Ms. Hipfner, 19 was simply, did you know who Onfire was. It's referred 20 to in your e-mail. 21 A: Yes, I did. 22 Q: Who was Onfire? 23 A: It was a -- a group of citizens who 24 lived in the area that had -- that had sort of set 25 themselves up as a group. I think -- I think it was in
1691 response to the occupation of the Park, though it may 2 have been in response to the occupation -- of the earlier 3 occupation of the Camp, I'm not certain. 4 But certainly my dealings, not that I had 5 direct dealings, but our dealings with the group tended 6 to be around issues related to the ongoing occupation by 7 the Stoney Pointers of Ipperwash Provincial Park. That 8 was the concern that those were the natures of -- nature 9 of the concerns that they were expressing to us. 10 Q: Okay. Could we make this document an 11 exhibit? 12 THE REGISTRAR: P-724, Your Honour. No. 13 COMMISSIONER SIDNEY LINDEN: Well you -- 14 MS. KATHERINE HENSEL: And could I ask on 15 what basis it's being made a -- 16 COMMISSIONER SIDNEY LINDEN: Well I -- 17 MS. KATHERINE HENSEL: -- a part of the 18 record here? 19 In reference to Onfire, that -- her 20 knowledge of Onfire doesn't depend on -- on that e-mail. 21 COMMISSIONER SIDNEY LINDEN: It's written 22 by Ms. Hipfner even though she doesn't remember it. I 23 don't see a problem with making an exhibit. We've had 24 other matters that, perhaps we should revisit the basis 25 on which we make documents exhibits, but I'm not going to
1701 do that now. So we'll make this an exhibit. 2 THE REGISTRAR: P-724, Your Honour. 3 COMMISSIONER SIDNEY LINDEN: P-724. 4 5 --- EXHIBIT NO. P-724: Document Number 1004189. 6 E-mail to Yan Lazor from E. 7 Hipfner Re. Discussion with 8 Peter Allen, April 18/'96. 9 10 COMMISSIONER SIDNEY LINDEN: I understand 11 your objection, Ms. Hensel. 12 13 CONTINUED BY MS. ANNA PERSCHY: 14 Q: And if you could turn please to Tab 15 57 of Commission Counsel's documents. 16 17 (BRIEF PAUSE) 18 19 Q: And this is an e-mail for -- it's 20 document number 1004188. It's an e-mail from you to Ms. 21 Karakatsanis and Yan Lazor dated April 18th, 1996 -- 22 COMMISSIONER SIDNEY LINDEN: No, no. 23 Sorry, carry on. 24 25 CONTINUED BY MS. ANNA PERSCHY:
1711 Q: And I take it this was just the 2 follow-up on the previous e-mail that you'd referred to? 3 You now -- you're now reporting this information to Ms. 4 Karakatsanis, correct? 5 A: I seem to have reporting -- be 6 reporting new information to Ms. Karakatsanis based on 7 information provided to me in a phone call from Scott 8 Patrick. 9 Q: And that -- and that's the 10 information that's recorded in the e-mail? 11 A: Yes. 12 Q: Okay. 13 A: It is certainly later the same day. 14 Q: And if I could have this e-mail made 15 as the next exhibit? 16 THE REGISTRAR: P-725, Your Honour. 17 18 --- EXHIBIT NO. P-725: Document Number 1004188. 19 E-mail from E. Hipfner to A. 20 Karakatsanis and Yan Lazor 21 Re. Pinery Provincial Park, 22 April 18/'96. 23 24 MS. ANNA PERSCHY: Thank you, Ms. 25 Hipfner, those are all of my questions.
1721 THE WITNESS: Thank you. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much, Ms. Perschy. 4 Yes, I think that Ms. Tuck-Jackson is 5 next. 6 7 (BRIEF PAUSE) 8 9 COMMISSIONER SIDNEY LINDEN: Thank you. I 10 haven't got my note from Ms. Tuck-Jackson, as to what the 11 length of your estimate is and what is your estimate now 12 regarding how long you might be? 13 MS. ANDREA TUCK-JACKSON: My estimate 14 continues to be approximately ten (10) to fifteen (15) 15 minutes, sir. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much. 18 19 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 20 Q: Good afternoon, Ms. Hipfner. 21 A: Good afternoon. 22 Q: My name is Andrea Tuck-Jackson, I'm 23 going to ask you some questions on behalf of the OPP. 24 A: Okay. 25 Q: And I'd like to begin, if I may, in
1731 relation to a document that I provided to you through 2 your counsel this morning and if I could provide a copy 3 of the same document to the Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Is that this 5 document? 6 THE WITNESS: Ms. Tuck-Jackson, I seem to 7 have been provided with a number of documents and I'm not 8 sure which one you're referring to. 9 MS. ANDREA TUCK-JACKSON: Yes, it's 10 entitled, "Supplementary Occurrence Report." 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 MS. ANDREA TUCK-JACKSON: A two (2) page 13 document and stapled to it is a fax cover sheet with 14 several pages of officers' notes. That doesn't appear to 15 be it. 16 You'll -- you'll notice -- in fact it's 17 right in front of you to the right of your mic; that's 18 it. 19 THE WITNESS: Thank you. 20 MS. ANDREA TUCK-JACKSON: Mr. 21 Commissioner, I can indicate that as a result of a 22 reference that Ms. Hipfner made on Thursday to another 23 incident, I made some inquiries, and the Ipperwash team, 24 as always, was extremely helpful in tracking down 25 information which took the course of the weekend, as a
1741 matter of fact, so this morning I brought copies, I've 2 provided them to all Counsel and I'm afraid that was the 3 earliest that I could do so. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 MS. ANDREA TUCK-JACKSON: If Ms. Hipfner 6 needs further time, I did provide this to her earlier 7 this morning, I don't know whether she requires a further 8 opportunity. 9 THE WITNESS: I did take a look at it 10 this morning. 11 MS. ANDREA TUCK-JACKSON: Wonderful. 12 Thank you. All right. 13 THE WITNESS: But I couldn't read the 14 handwritten notes. 15 MS. ANDREA TUCK-JACKSON: Well, that may 16 make more than one (1) of us. 17 THE WITNESS: This is my turn not to be 18 able to read somebody else's handwritten notes. 19 MS. ANDREA TUCK-JACKSON: I understand. 20 COMMISSIONER SIDNEY LINDEN: You're lucky 21 you can read your own. 22 THE WITNESS: Yeah, I know. 23 24 CONTINUED BY MS. ANDREA TUCK-JACKSON: 25 Q: You told us on Thursday, in response
1751 to a series of questions by My Friend Ms. McAleer, of an 2 incident that involved the occupation of some homes -- 3 A: Yes. 4 Q: -- and the response to that by the 5 OPP. And as a result of some inquiries that were made 6 over the days that followed your testimony I understand 7 the incident that you spoke about occurred in May of 8 1995. Does that sound right? 9 A: I don't remember. All I remember is 10 that it occurred after I had moved from the Legal Branch 11 of the Solicitor General over to the Legal Branch of the 12 Native Affairs Secretariat which was sometime in 1994, so 13 certainly it was -- it occurred sometime after March of 14 1994. 15 Q: All right. Would it be fair to say 16 that before you mentioned it, in response to Ms. 17 McAleer's questions on Thursday, that you hadn't really 18 turned your mind to the incident for -- 19 A: Yes. 20 Q: -- some ten (10) or eleven (11) 21 years? 22 A: Yes. 23 Q: All right. And -- and then, 24 clearly, it's probably self-evident to all of us, but I 25 also trust then that you hadn't had an opportunity to
1761 look at any documents to refresh your memory as to the 2 details of that? 3 A: No. 4 Q: All right. That's what I'd like to 5 do now just to -- to clarify because I'm concerned there 6 may be a little bit of misinformation on the record -- 7 A: All right. 8 Q: -- which is not a criticism, it 9 happens because of -- of failing memory in the passage of 10 time. 11 A: Yes. 12 Q: If I could take you to the occurrence 13 report, you'll notice that the date of the incident 14 appears to May the 19th, 1995 and I gather from what 15 you're telling me, you have no reason to disagree with 16 the accuracy of that? 17 A: No. 18 Q: You'll also note that the incident 19 appeared to have occurred on the Tyendingaga First 20 Nations territory? 21 A: It actually occurred in the town of 22 Shannonville who's status as reserve land or not was an 23 open question at the time. 24 Q: All right. And for those of us who 25 are not as familiar with the area, that is in Eastern
1771 Ontario, near Belleville area. 2 A: Near Belleville. 3 Q: All right. And again, because I 4 don't want to spend a lot of time with this, is it fair 5 to say that what had occurred is that the First Nation in 6 question had purchased some homes from non-aboriginal 7 individuals? 8 A: I'm not sure about that detail. 9 Q: All right. You'll notice at the 10 bottom of page 1 of the occurrence report that I'm 11 showing you, it indicates that a number of homes had been 12 purchased from, as it's termed here, non-native owners? 13 A: Yes. It was your reference to the 14 First Nation having purchased the homes. There was an 15 agreement, a memorandum of understanding, entered into 16 between the Federal Government and the Mohawks of the 17 Bosanquet, I think in 1990 or 1991, that the Federal 18 Government would purchase the legal interests of home 19 owners and property owners, generally, in the town of 20 Shannonville in an effort then to remove third party 21 interests from the land and restore the land to reserve-- 22 Q: All right. 23 A: -- belonging to the Mohawks of the 24 Bay of Quinte. So I actually just don't know who made 25 the purchases.
1781 Q: That's fair. And that's not the 2 point that I want to focus on. 3 A: Okay. 4 Q: You'll see in the document that, in 5 essence, what appears to happen is that a number of 6 individuals occupy the land without the permission of the 7 Band. 8 A: Yes. 9 Q: All right. And you'll note by the 10 document that it was the First Nations' territory police 11 that asked for intervention by the OPP to assist them; 12 does that refresh your memory? 13 A: It's entirely possible that that 14 happened. 15 Q: Thank you. And you'll also note that 16 it says in the document, third line down on the first 17 page: 18 "These houses were illegally occupied 19 and they were to be demolished by the 20 reserve." 21 And frankly this is the point that I -- 22 A: Oh. 23 Q: -- wanted to get at. You testified, 24 on Thursday, that it was the OPP that demolished the 25 houses or -- with a bulldozer.
1791 A: Hmm hmm. 2 Q: And I'm going to suggest to you, as 3 is indicated in the occurrence report, that it was not 4 the OPP who indeed demolished the houses. That was done 5 at the instance of the Band. 6 A: That may have been. I think my point 7 was that there was some co-operation required between the 8 OPP and whoever ultimately demolished the homes to work 9 co-operatively, to address this situation. 10 Q: Thank you. All right. And so it was 11 your understanding that the OPP were there to assist and 12 to maintain the peace while this dispute played itself 13 out? 14 A: To evacuate the occupiers of these 15 buildings. 16 Q: All right. All right. 17 A: Safely. 18 Q: Yes. And you'll notice that there's 19 a reference to the occurrence report that -- that the one 20 -- that the occupiers from one home were removed pursuant 21 to the Trespass to Property Act? 22 A: Yes. 23 Q: And it was following their removal 24 that the Band Council -- excuse me, the Band, took the 25 steps necessary to demolish the houses?
1801 A: Yes. 2 Q: Thank you. That's all I wanted to 3 clarify, Mr. Commissioner. 4 In the circumstances and, again, just 5 because I don't want misinformation running around in the 6 public domain, so I'll be respectfully requesting that we 7 make this document the next exhibit. 8 The only thing that's attached to the 9 occurrence report are the notes that are relevant to the 10 incident by a Sergeant Gary Roulettes (phonetic) whom I 11 understand was one of the officers on the scene. If that 12 could then be marked as the next exhibit, please? 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 THE REGISTRAR: P-726, Your Honour. 15 MS. ANDREA TUCK-JACKSON: Thank you very 16 much. 17 18 --- EXHIBIT NO. P-726: Supplementary occurrence 19 report June 12/95 and Sgt. 20 Gary Ouellette notes May 21 19/'95. 22 23 CONTINUED BY MS. ANDREA TUCK-JACKSON: 24 Q: To return to more relevant matters at 25 hand. I am interested in focussing, obviously, on the
1811 two (2) IMC meetings of September 5th and 6th, and in 2 particular, I'm interested in asking you some questions 3 about the behaviour and the words and the actions of Ron 4 Fox. 5 A: Hmm hmm. 6 Q: And I'm going to suggest to you that 7 it was quite clear, in your presence during the course of 8 both of those meetings, that then Inspector Fox disagreed 9 with a number of the views expressed by Deb Hutton? 10 A: Yes. 11 Q: And I'm going to suggest to you, by 12 his words, by his actions, that he did not appear to be 13 inhibited by Deb Hutton? 14 A: Not at all. 15 Q: No. And I'm going to further suggest 16 to you, again by his words and by his actions, it seemed 17 as though he also was not inhibited by the fact that she 18 appeared to speak on behalf of the Premier. 19 A: That's true. 20 Q: And I'm going to suggest to you that 21 during the course of those two (2) meetings, Ron Fox 22 advocated for three (3) key points. 23 First of all I'm going to suggest to you 24 that he advocated for a slow and cautious approach to the 25 -- the problem.
1821 A: Yes. 2 Q: I'm going to suggest to you secondly, 3 that he encouraged and advocated for ongoing 4 communication and negotiation with the occupiers at the 5 scene in order to diffuse the situation. 6 A: Yes. 7 Q: And thirdly, I'm going to suggest to 8 you that he advocated on behalf of the OPP that leaving 9 aside discreet incidents that might attract intervention 10 under the Criminal Code, the police were not prepared to 11 act in relation to the Park occupiers in the absence of 12 an injunction. 13 A: I think that's fair. 14 Q: I'm going to further suggest to you, 15 Ms. Hipfner, that nothing by his words or his actions 16 during those meetings, suggested to you that he was 17 seeking direction from the IMC Committee members on 18 operational matters. 19 A: He was not seeking direction from the 20 Interministerial Committee members. 21 Q: Thank you. And I'm also going to 22 suggest to you that nothing by his words or his actions 23 suggested that he was taking direction from this 24 Committee members on operational matters. 25 A: I agree.
1831 Q: You spoke of seeing him again in the 2 company of Scott Patrick after the IMC meeting on 3 September the 6th and particular one of the things that 4 stood out in your mind was that he emphasized that you 5 talk until in affect you're talking to a skeleton. 6 A: Yes. 7 Q: Communication, he was emphasizing to 8 you is important. 9 A: Absolutely. 10 Q: And I'm going to suggest to you that 11 nothing during that encounter with him following that 12 meeting suggested to you that he or the OPP were going to 13 change their course of keeping negotiation and 14 conversation and communication open and waiting for an 15 injunction. 16 A: That's correct. 17 Q: Thank you, Ms. Hipfner, those are my 18 questions. 19 COMMISSIONER SIDNEY LINDEN: Thank you 20 very much, Ms. Tuck-Jackson. 21 I believe Mr. Nash, now -- was it Mr. Nash 22 now would have some questions on behalf of the 23 Municipality of Lambton Shores? 24 Mr. McGilp, you don't have questions I 25 gather?
1841 MR. IAN MCGILP: We have no questions. 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 MR. DAVID NASH: Thank you. 4 5 CROSS-EXAMINATION BY MR. DAVID NASH: 6 Q: Ms. Hipfner, I'm -- we're counsel for 7 the municipality and back then it was the Township of 8 Bosanquet. 9 A: Yes, okay. 10 Q: And I may refer to Town or Township 11 or municipality and that's what I'm referring to. 12 A: Thank you. 13 Q: And I just wanted to actually try and 14 clarify a few items as well with you that I think almost, 15 maybe, inadvertently were referred to in prior testimony. 16 And really what I -- 17 A: In my prior testimony? 18 Q: Yeah, in the questions -- actually 19 coming from the questioner more than from the answer. 20 It's just with respect to the terminology. 21 Throughout some of the questions there was reference to 22 the Aboriginal community and the tensions between the 23 Aboriginal community and the non-Aboriginal community. 24 And all's I'm going to ask you to help me 25 with for clarification is that when you were in the
1851 meetings on the 5th and the 6th that the community, the 2 Aboriginal community that was being discussed was the 3 Stoney Pointers. Those who are occupying the Provincial 4 Park. 5 A: I'd have to know with somewhat more 6 precision and what was being discussed. 7 Q: I can help you, I think, because from 8 the meetings of the 5th and the 6th, there were minutes 9 taken of those meetings. 10 A: Yes. 11 Q: And in those -- you would have 12 received those minutes. 13 A: Yes. 14 Q: And if there had been any mistakes, 15 obviously, in the minutes, you would have intervened and 16 said I think there's a mistake, so -- I take it when you 17 received copies of the minutes. There's no trick to 18 this. 19 A: Hmm hmm. 20 Q: I'm simply going to refer you to the 21 -- to the minutes of the 5th which ref -- which give us 22 this background. And all's I'm trying to do is to 23 clarify that it's not the Aboriginal community in whole, 24 it's -- there's a Stoney Point group that are occupying 25 the Park and that's -- when people are talking about the
1861 tensions that's what they're referring to. 2 A: Okay. Now, you're aware that I 3 didn't draft the minutes of the meetings. 4 Q: I'm just going to show them -- 5 perhaps, what we'll do is refresh your memory to the fact 6 that there is a distinction in the Band in terms of the 7 Aboriginal community. 8 I'm -- I'm referring -- I just have it 9 perhaps Counsel can help me. It's 1011712. It's the 10 first one in September 5th. 11 12 (BRIEF PAUSE) 13 14 Q: Exhibit 509, and... 15 A: Katherine, I'm sorry, can you direct 16 me to where that might -- they are in my document binder 17 somewhere. 18 MS. KATHERINE HENSEL: Tab 13. 19 THE WITNESS: Thank you. 20 MR. DAVID NASH: Tab 13. Thank you. 21 22 CONTINUED BY MR. DAVID NASH: 23 Q: And as I say, I'm trying to get you 24 to assist in a clarification here, just because of the 25 way the questions were asked.
1871 A: Hmm hmm. 2 Q: If you take a look at the meeting 3 notes, can you see there? 4 A: Yes. 5 Q: All right. In that document, if you 6 look on background -- 7 A: Hmm hmm. 8 Q: -- under number 1, it says the: 9 "Stony Pointers are a dissident group 10 from the Kettle and Stony Point First 11 Nation who are not recognized as an 12 independent under the Indian Act." 13 Do you see that? 14 A: Yes. 15 Q: Does that bring back now -- recall 16 for you the fact that when we're talking about the 17 Aboriginal people, in the Ipperwash situation, that there 18 was the Stoney Point group -- 19 A: Oh, yes, I'm well aware of that. 20 Q: Yes. 21 A: There was the Indian Act Band, which 22 was the Kettle and Stony Point First Nation -- 23 Q: Right. 24 A: And there was this, they're variously 25 referred to as different things, but this dissident group
1881 who called themselves the Stoney Pointers, and who 2 occupied the Army Camp and the -- and Camp Ipperwash or-- 3 Q: Right. 4 A: -- Ipperwash Provincial Park. 5 Q: And if you can just then -- just for 6 clarification, when -- in terms of the Aboriginal people 7 in your meeting on the 5th and the 6th, when there were 8 discussion about tensions; you recall there were 9 discussions about tensions in the community? 10 A: Hmm hmm. 11 Q: The tension from your recall, I would 12 suggest, was the tension arising from the Stoney Point 13 Band and the community? 14 Can you recall that? 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MS. KATHERINE HENSEL: There was a great 17 deal of -- there's been a great deal of discussion over 18 the last couple of days about those two (2) separate 19 meetings. So, I would ask, if possible, if you could 20 direct her to particular points in the conversation. 21 It might be helpful for... 22 23 CONTINUED BY MR. DAVID NASH: 24 Q: Well, overall, at the meetings and my 25 suggestion to you would be that the focal point of the
1891 meetings on the 5th and the 6th were the reduction of 2 tensions between Aboriginal people who were being 3 discussed at the meetings -- 4 A: Hmm hmm. 5 Q: -- and the community. That was one 6 of the focal points; is that fair? 7 A: I wasn't aware of any particular 8 tensions between the Indian Act Band -- 9 Q: Right. 10 A: -- and local -- the larger community. 11 Q: Thank you. And that never really -- 12 there was nothing in the meetings that would have 13 suggested that there was tension between the Indian Act 14 Band and the locals? 15 A: Not that I can recall. 16 Q: Thank you, that's what I was looking 17 for. 18 Now, the second item that I would like to 19 draw your attention to is, with respect to these minutes 20 that we -- you have in front of you, the minutes of the 21 meeting -- 22 A: Yes. 23 Q: -- right? I would just suggest to 24 you that when I go through all three (3) pages of the 25 minutes, there is no reference to the minutes of the
1901 meeting of August or September 5th, 1995 that there was a 2 concern or that a concern had been raised regarding 3 safety issues where persons were being threatened or 4 where there's a reference in the minutes to safety. 5 And I'll take you ahead to why I'm asking 6 -- okay, go ahead, sorry. 7 A: My recollection is that somebody, and 8 it may have been Peter Allen, I suppose I should refer to 9 my notes, before I do this, actually described the 10 situation as one that was stable. 11 Q: Yes, in that -- in the September the 12 5th -- 13 A: On September 5th. 14 Q: Right. And if I could simply -- and 15 you may just be able to recall, even, on the September 16 6th meeting, the issue of safety came up again and actual 17 -- the notes from that meeting indicate that safety -- 18 public safety was a priority. 19 I mean that the outcome of the September 20 6th meeting was to actually put in the minutes that 21 public safety was a priority and maybe I can just take 22 you to that one then? 23 24 (BRIEF PAUSE) 25
1911 Q: This is the meeting of September 6th. 2 A: And can I be assisted to locate those 3 in -- 4 Q: Yes, My Friend -- 5 A: -- my documents? 6 Q: -- just going to give me the exhibit 7 number here. 8 MS. KATHERINE HENSEL: This is also 9 Exhibit P-509. 10 MR. DAVID NASH: P-509. 11 MS. KATHERINE HENSEL: Inquiry document 12 1012252. 13 MR. DAVID NASH: One (1) -- 14 MS. KATHERINE HENSEL: One zero one two 15 (1012) -- 16 MR. DAVID NASH: Zero one two (012)? 17 MS. KATHERINE HENSEL: Two five two 18 (252). 19 MR. DAVID NASH: Two five two (252). 20 I've got a -- 21 MS. KATHERINE HENSEL: Tab 15. 22 MR. DAVID NASH: Tab 15, thank you. 23 COMMISSIONER SIDNEY LINDEN: I'm sorry, 24 Tab 50 or 15? Fifteen (15)? 25
1921 (BRIEF PAUSE) 2 3 MR. DAVID NASH: Tab 16. 4 COMMISSIONER SIDNEY LINDEN: I didn't 5 think it was 15. Tab 16. 6 THE WITNESS: Okay. I have them. 7 8 CONTINUED BY MR. DAVID NASH: 9 Q: Now, what I'm going to ask you to 10 help me with here is when you look at the minutes of this 11 particular meeting, on page 2 you will see that the 12 minutes have actually recorded some specific items. 13 And I'm going to draw your attention to 14 see if you can recall on the second point on page 2 the 15 Stoney Pointers appear to have ignited a controlled fire 16 in the middle of County Road 21, cut down trees -- 17 A: Hold on just a second, I -- 18 Q: Do you see -- 19 A: -- I don't -- oh, I see, it's 20 actually page -- 21 Q: Can you read that? 22 A: No, I actually can't find it. 23 COMMISSIONER SIDNEY LINDEN: Okay. I'm 24 not with you, what page? 25 MR. DAVID NASH: Page 2.
1931 COMMISSIONER SIDNEY LINDEN: Of the 2 minutes of September 6th? 3 MR. DAVID NASH: Yes. 4 COMMISSIONER SIDNEY LINDEN: And the -- 5 MR. DAVID NASH: My Friend might be able 6 to help. 7 MS. KATHERINE HENSEL: I can -- just to 8 clarify for Mr. Nash, we have or we anticipate that we 9 will hear and we have heard from Ms. Jai that there were 10 two (2) copies, two (2) versions of these minutes 11 circulated. I believe the version that you're referring 12 to was the initial draft, not the final -- not the final 13 version. 14 MR. DAVID NASH: Okay. Somehow 15 that's... 16 MR. WILLIAM HENDERSON: Yeah, and the 17 comments that you're referring to were actually edited 18 out for the final version. 19 MR. DAVID NASH: All right. 20 MS. KATHERINE HENSEL: Thank you. Would 21 you like a copy of it? 22 23 CONTINUED BY MR. DAVID NASH: 24 Q: Sure. Perhaps that -- that leads to 25 the other question that I had and I'll jump ahead to
1941 that. 2 With respect to the minutes of the -- of 3 the meeting themselves did you receive the minutes 4 contemporaneously within hours of the meeting or how soon 5 after did you get the minutes? Do you remember? 6 A: We got them the same day. 7 Q: Same day? 8 A: Yes. 9 Q: So, your ability to -- you were given 10 the ability to comment on them I take it and then the 11 minutes would be -- people would be invited -- who 12 participated in the meeting would be invited to comment 13 on a draft and then a final version would come out; is 14 that fair? 15 A: I don't -- sorry -- 16 MS. KATHERINE HENSEL: We have also heard 17 evidence that that actually was not the process that was 18 followed. It was an articling student that drafted the 19 minutes and then Ms. Jai finalized them. 20 21 CONTINUED BY MR. DAVID NASH: 22 Q: I was -- I was just going to ask you 23 if you recall having any input to the finalization? 24 A: I actually do remember having some 25 input into the -- the production of the September 6th
1951 minutes. On the afternoon of September 6th Julie Jai 2 asked me if I would work with Nathalie Nepton to -- to 3 prepare a set of minutes -- 4 Q: Right. 5 A: -- and I think I may have had a hand 6 in some of the editing that -- that occurred between the 7 first draft that we have and the second. Although Julie 8 would undoubtedly have done some further editing after. 9 Q: Right. 10 11 (BRIEF PAUSE) 12 13 Q: No, that's the 5th. 14 15 (BRIEF PAUSE) 16 17 Q: I'll go on actually. I'm going to 18 leave that point. The -- the references in the minutes 19 refer to -- I think you'll -- you'll recall this because 20 you've been cross-examined on it, on the 6th refer to the 21 -- the mayor's reign of terror document. 22 You recall that and you've testified to 23 that? 24 A: It's not something that I have much 25 of an independent recollection about.
1961 Q: Oh, I see. 2 A: Yeah. 3 Q: All right. And I just wanted to ask 4 you about the -- some of the protocol with respect to the 5 committee that you might be able to help us with. 6 As I read the minutes of the 5th and the 7 6th the -- the participants at the meeting appear to have 8 all been partici -- provincial government participants. 9 They were either civil servants or they were political 10 staffers; is that fair? 11 A: And on the -- at the meeting of 12 September 5th there was also an MPP in attendance. 13 Q: Right. 14 A: But yes, we were all within 15 government, you might say. 16 Q: And I just wanted to clarify, just 17 that no municipal official participated in either a 18 meeting on the 5th or the 6th? 19 A: No. 20 Q: And is that -- from the rules or from 21 the protocol, to your knowledge of these meetings, was 22 that prohibited to -- to bring in a municipal official -- 23 A: I don't know. 24 Q: All right. And when the -- when the 25 reference was made to the newspaper article, the "Reign
1971 of Terror" article, you may recall, without getting into 2 the specifics, the newspaper article edit actually had 3 some quotations in it attributed to the mayor. 4 Do you recall that? 5 A: No. 6 Q: All right. And when the newspaper 7 article -- it was brought to your attention, you didn't 8 see it, somebody brought it to your attention I 9 understand. 10 A: All I remember is a comment from 11 Chris Buhagiar who was an aide to MPP Dan Newman. I'd 12 have to turn to my notes to be precise. But commenting 13 on this -- this headline or perhaps it was a -- this 14 headline and about it not having being particularly 15 helpful in the circumstances. 16 Q: And as I understand it from your 17 evidence earlier in your -- in your testimony, you had 18 indicated that there was a general feeling in the room 19 that perhaps the mayor had gone too far with his 20 comments. 21 A: That his comments were perhaps ill 22 advised and unhelpful. 23 Q: All right. But you could help me on 24 this. To the best of your knowledge, nobody ever phoned 25 the mayor or contacted the mayor to ask him about his
1981 comments? 2 A: It's not something that I would have 3 any knowledge of. 4 Q: All right. It's not minuted so if 5 it's not minuted it probably didn't happen within the 6 context of the meeting I take it. 7 A: I have no recollection of such a 8 thing being discussed. 9 Q: Right, all right. Now my last item 10 is -- I'm just going to take you now, My Friend has given 11 me a copy of the actual meeting notes of September 6th 12 which would be number 16, Exhibit 16 and we'll go back to 13 that exhibit. 14 A: My Tab 16 seems to include or seems 15 to consist of the earlier draft of the minutes. 16 Q: Yes. I think that's where -- if we 17 can locate the final version for you. There's just one 18 reference I'm just going to ask you once we get it up. 19 20 (BRIEF PAUSE) 21 22 Q: I just want to go to the point under 23 "Communications," number 4, which on my document is page 24 2. 25 It's just one (1) more. That's it.
1991 That's fine. Thank you. 2 If you'll just look -- all's I'm going to 3 draw your attention to is the item of communication and 4 we're now looking at the final document of the minutes of 5 the meeting of September 6th. And right at the bottom, 6 the third bullet point, it says: 7 "Public safety and removing the 8 trespassers 9 from the Park are the key objectives." 10 And I'm just going to point out to you 11 that the issue of public safety has now been formally 12 minuted; is that fair? 13 A: Yes. 14 Q: So that from the 5th, when it didn't 15 seem to be a focal point, it's -- is it fair to say it's 16 now become a focal point, as of the 6th? 17 A: It's now been identified as something 18 that should be included in the public messaging. 19 Q: Yes. But I take it if it's being 20 included in the public messaging and being actually 21 minuted, it's also an area that had been discussed and 22 felt it had a priority; is that fair? 23 A: I think that's probably fair. 24 Q: Thank you. And -- and really the 25 point that I'm making here is the -- the mayor's
2001 comments, unfortunate as they may have seemed to some of 2 you, the fact is, after the -- after it had been made and 3 had been provided to the Committee and everything else, 4 public safety became a part of -- very much a part of the 5 meeting, and whether it was the cause and effect, the 6 fact is the information from the Mayor, through the 7 newspaper article, precedes the minuting of this meeting; 8 is that fair? 9 A: I'll answer that last question. 10 Q: Yes. 11 A: Yes. 12 Q: And then with respect to the 13 involvement of the municipality, is it fair to say that 14 from the Committee perspective, from your knowledge of 15 the Committee, it would be appropriate for the Mayor of 16 the municipality to call upon either the Federal or 17 Provincial Government to act, rather than have the 18 Municipal Government attempt to act on its own; is that 19 fair? 20 A: Could you put that question to me 21 again? 22 Q: It would be appropriate for the Mayor 23 of a municipality, and here in the town, to call on the 24 Provincial or Federal Government to act -- to do -- to 25 take any legal action, as opposed to them trying to go it
2011 alone and take action on their own? 2 That was the preferable route -- 3 A: It's appropriate, sure. 4 Q: Yes. Thank you very much. 5 A: Okay. Thank you. 6 COMMISSIONER SIDNEY LINDEN: Thank you 7 very much, Mr. Nash. 8 MS. KATHERINE HENSEL: I'm in your hands, 9 or we're in your hands, Commissioner. I understand Mr. 10 Alexander would be next; whether now would be an 11 appropriate time to take a break? 12 COMMISSIONER SIDNEY LINDEN: Let's do a 13 quick assessment because, quite frankly, I haven't got 14 the estimates in front of me. I would like to know where 15 we are. 16 Mr. Alexander, do you have any questions? 17 MR. BASIL ALEXANDER: Pardon me? 18 COMMISSIONER SIDNEY LINDEN: Do you have 19 any questions? 20 MR. BASIL ALEXANDER: Yes, I do. Our 21 original estimate was one (1) to two (2) hours. I can 22 advise you our estimate is now half an hour to an hour 23 and I presume -- I expect it will be closer to half an 24 hour. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
2021 Thank you very much, Mr. Alexander. 2 And is there anybody -- Ms. Esmonde...? 3 MS. JACKIE ESMONDE: Yes. My estimate 4 has come down to half an hour to forty-five (45) minutes. 5 COMMISSIONER SIDNEY LINDEN: Fine. Now 6 do you have any questions on behalf of the residents? 7 MR. CAMERON NEIL: I anticipate no 8 questions, Your Honour. 9 COMMISSIONER SIDNEY LINDEN: No 10 questions? And the First Nation...? 11 MS. COLLEEN JOHNSON: Yes, our original 12 estimate was for half an hour, but we anticipate now that 13 we will have no questions. 14 COMMISSIONER SIDNEY LINDEN: And the 15 Chiefs, Mr. Horner? 16 MR. MATTHEW HORNER: Our original 17 estimate was for twenty (20) minutes. I imagine it will 18 be less than that depending on what My Friends do. 19 COMMISSIONER SIDNEY LINDEN: Aboriginal 20 Legal Services, Mr. Roy...? 21 22 (BRIEF PAUSE) 23 24 MR. JULIAN ROY: My recollection is we 25 said in an hour and a half to two (2) hours, and I think
2031 that probably stands. I haven't heard from -- from 2 people on -- from My Friends as to what specifically 3 their questions are going to be and that may change. 4 But right now I think it -- as I look at 5 my notebook now, it's an hour and a half to two (2) 6 hours. 7 COMMISSIONER SIDNEY LINDEN: And then the 8 Province may have some re-examination, depending on -- is 9 that correct, Ms. Twohig? 10 MS. KIM TWOHIG: We may, but at this 11 point it would be very brief. 12 COMMISSIONER SIDNEY LINDEN: Well, 13 there's a good chance -- well, I don't know if we'll 14 finish today, but we should come close. 15 I think this would be a good time to take 16 a break. 17 THE REGISTRAR: This Inquiry will recess 18 for fifteen (15) minutes. 19 20 --- Upon recessing at 3:39 p.m. 21 --- Upon resuming at 3:59 p.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed; please be seated. 25 COMMISSIONER SIDNEY LINDEN: Yes, Mr.
2041 Alexander...? 2 3 CROSS-EXAMINATION BY MR. BASIL ALEXANDER: 4 Q: Good afternoon, Ms. Hipfner. 5 A: Good afternoon. 6 Q: My name is Basil Alexander and I'm 7 one of the Counsel for the Estate of Dudley George and 8 several members of the George family, including Sam 9 George. 10 Before I get started, I want to make sure 11 that you have the right documents, because I know we've 12 been throwing documents at you while you've been on the 13 stand for the last couple of days. 14 What I will be referring to is your binder 15 of -- that the Commission prepared for you and sent 16 around, as well as the paper clipped documents. There 17 should be four (4) documents that I provided you, the 18 Commissioner and other people, as well as including your 19 Counsel. 20 21 (BRIEF PAUSE) 22 23 Q: All set? 24 A: Yes. 25 Q: All right. I'm going to start by
2051 taking you to the -- your September 6th notes, which is 2 Tab 17 in your binder. 3 For My Friends' reference, that's Inquiry 4 document number 1011784 and that's Exhibit P-636. I'm 5 going to take you to page 6. 6 7 (BRIEF PAUSE) 8 9 Q: What I'm interested in at this stage 10 is, right now at the very bottom of the page where you've 11 got, "Dave" and "provincial obligations regarding alleged 12 burial site." 13 A: Hmm hmm. 14 Q: If I recall your evidence, that is 15 Dave Carson and this is regarding what are the provincial 16 obligations that arise out of a potential burial site in 17 the Park, correct? 18 A: Not provincial obligations per se but 19 the scheme of the Cemeteries Act and -- and what happens 20 if an Aboriginal burial site is discovered. 21 Q: So what I hear is that that is really 22 about the scheme of the Cemeteries Act and I also notice 23 you've noted down the Heritage Act as well; is that 24 correct? 25 A: Yes.
2061 Q: So these are both elements of 2 statutory law at the end of the day, correct? 3 A: Yes. 4 Q: Now when I look through this section 5 I have not seen any reference to potential common law 6 obligations that may arise. Is there -- I just don't see 7 them in the notes. 8 Am I reading the notes correctly on that 9 part? 10 A: There's no reference in the notes to 11 the common law. 12 Q: Do you recall any references during 13 the meeting to any potential common law obligations? 14 A: No, I don't. 15 Q: I'm going to go back to your 16 September 5th notes now, which is at Tab 14, it's Inquiry 17 Document 1011739, Exhibit P-510. And I'm going right to 18 the very top of your notes where you talk about -- where 19 you mention the court decision. 20 And do you recall your testimony about the 21 fact that the decision of Killeen J. had the affect of 22 confirming Ontario's title to the Park lands? 23 A: I believe my testimony was that I 24 provided a summary of the court decision and that 25 Elizabeth Christie added afterwards that the decision
2071 affects Ipperwash Provincial Park that it had the affect 2 of confirming Ontario's title to the Park lands. 3 Q: Thank you for that clarification. 4 And then upon questioning by Ms. Perschy, you explained 5 why that is no longer -- why that was incorrect. 6 A: Yes. 7 Q: And that was specifically because the 8 surrender in question involved different land; it was a 9 different surrender. 10 A: It was a surrender in 1927 of lands 11 at Kettle Point rather than the 1928 surrender of lands 12 at Stoney Point Reserve. 13 Q: But at the time, did you view it as - 14 - did you view that information as correct, or did you 15 understand that information to be correct? 16 A: I don't remember Elizabeth making a 17 comment and I don't think it played any significant part. 18 And apart from Elizabeth's comment I don't recall it 19 being referred to again in either of the meetings. 20 Q: Okay. I'm going to explore that a 21 little bit more as to whether or not it plays a part in 22 the meetings. 23 And one of the reasons why I want to 24 explore this a little more is I suggest to you that one 25 of the reasons why this was important is because it dealt
2081 with a surrender of nearby lands. 2 A: By the same community? 3 Q: By -- it just dealt with a surrender 4 of nearby Treaty lands. And throughout the various notes 5 we hear -- there are lots of references including your 6 notes and I can take you to a few of them, that Ontario 7 had good title to the Park lands. 8 A: Yes. 9 Q: And in -- with respect to Tim 10 McCabe's briefing he said that there's no challenge to 11 the surrender so that seemed to form a little bit of the 12 basis -- a significant basis, actually, of the 13 injunction. 14 I can take you to that if you'd like. 15 A: Are you asking me a question? 16 Q: I will. But I want to confirm that 17 title played a significant role in terms of the seeking 18 of the injunction. 19 A: Yes. 20 Q: And in order for there to be good 21 title, there needed to be a good surrender, correct? 22 A: Yes. 23 Q: So you would agree with me that the 24 surrender was the rationale for Ontario's position that 25 it had good title to the Park lands?
2091 A: Ontario purchased the lands from a 2 previous owner of the lands who I think had obtained them 3 from the Federal Government who was the original 4 patentee. He'd obtained them from the Federal Government 5 after the surrender. 6 We could get into issues around whether 7 Ontario was a bona fide purchaser for value without 8 notice since case law in Sarnia has -- has an affect on 9 this. But of course Sarnia hadn't been decided in 1995 10 and I guess in a general way what I could say is that -- 11 it's not clear to me that even if there had been a defect 12 in the surrender, Ontario's title to the lands would have 13 been disturbed. 14 Q: I'm going to go and take you now to 15 Tim McCabe's notes on this issue -- 16 A: Okay. 17 Q: -- and I just want to explore this a 18 little bit. 19 If you go to your September 6th notes 20 which is Tab 17 -- 21 A: Thank you. 22 Q: -- and I'm looking at page 4. That's 23 at the very bottom of the page. 24 A: Hmm hmm. 25 Q: Where it appears that Mr. McCabe --
2101 A: I'm sorry, yes. 2 Q: -- where the -- thank you, Ms. 3 Hipfner. We're at the bottom of the page. Mr. McCabe 4 outlines several of the key things required for the 5 injunction and it appears that it says: 6 "Prove Provincial Park. Prove 7 provincial lands. No challenge to 8 surrender, no frailty to title." 9 A: Yes. He was saying that there was 10 simply a bald assertion as to title at that point. 11 Q: So it seems the surrender is very key 12 to the assertion that Ontario had good title? 13 A: The -- whether there was a frailty in 14 the surrender was certainly an issue that needed to be 15 considered. 16 Q: Right. 17 A: And we had no information. The -- 18 the occupiers of the Park had provided no information to 19 the Province and have not to this day concerning any 20 allegation that there is some defect with the surrender. 21 Q: But at that time it was your 22 understanding that it was... 23 A: It's an important issue. 24 Q: Yes, okay. Setting aside the legal 25 validity of the surrender are you aware of any assessment
2111 about or consideration of the fairness of the surrender? 2 A: We're talking at this point about the 3 meeting notes of September 6th. There had been no 4 information provided by the occupiers of the Park to the 5 Province concerning the reasons for the occupation of the 6 Park on -- when we met on September 5th. 7 When we met on September 6th we knew two 8 (2) things only, one (1) was that -- and I think they're 9 recorded on the first page of my notes of the meeting of 10 September 6th. In Ron Fox's update he says: 11 "They [meaning the occupiers] have made 12 no demands. They've asserted it's 13 their land. Have raised issue of 14 burial grounds." 15 That is the full extent of my knowledge of 16 the situation at that time and it -- it's my -- almost my 17 full extent of the -- my -- the full extent of my 18 knowledge of the -- of the circumstances today. 19 Q: And to be clear my question is not 20 about what information may or may not have been 21 exchanged. My -- my question is about: Are you aware of 22 any assessment about or consideration about the fairness 23 of the surrender, not from a legal perspective; I'm 24 looking more from a social, political, or moral 25 perspective?
2121 COMMISSIONER SIDNEY LINDEN: At what 2 point in time are you referring to? The time -- 3 MR. BASIL ALEXANDER: At the time of -- 4 at the time when this occurred as well as since then. 5 COMMISSIONER SIDNEY LINDEN: Ms. 6 Twohig...? 7 MS. KIM TWOHIG: Mr. Commissioner, I 8 have no objection if he's referring to the timeframe of 9 the meeting, but I'm not sure whether consideration of 10 those issues since then is relevant. 11 COMMISSIONER SIDNEY LINDEN: Well, she's 12 no longer part of the Provincial Government so I don't 13 know if she would know what -- 14 MR. BASIL ALEXANDER: And to be clear, I 15 don't intend to explore this issue any further, I just 16 want to know if she's aware of any information along that 17 line. 18 MS. KATHERINE HENSEL: Excuse me. It's 19 our position that anything that happened after 1995 would 20 not be relevant -- 21 COMMISSIONER SIDNEY LINDEN: No. 22 MS. KATHERINE HENSEL: -- in -- in terms 23 of our discussions here today. 24 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 25 Twohig, have you got the same observation?
2131 MS. KIM TWOHIG: It -- it may also be 2 privileged if it's -- 3 COMMISSIONER SIDNEY LINDEN: Yes. Well-- 4 MS. KIM TWOHIG: -- referring to a later 5 time. 6 COMMISSIONER SIDNEY LINDEN: Well, why 7 don't you ask about the time in question, Mr. Alexander. 8 MR. BASIL ALEXANDER: I have no problem 9 with that. 10 COMMISSIONER SIDNEY LINDEN: It looks 11 like you have no objection to that. 12 13 CONTINUED BY MR. BASIL ALEXANDER: 14 Q: At the time, so September 5th, 6th, 15 in that general area, were you aware of any assessment 16 about or consideration of the fairness of the surrender? 17 A: An assessment by whom? 18 Q: Assessment by anyone. And when I -- 19 I have to be clear when I'm talking about the word, 20 "fairness." I don't mean it in the legal point, I mean 21 it in the sense from a social, political, or moral 22 perspective. 23 COMMISSIONER SIDNEY LINDEN: Well, 24 perhaps you'd better explain your word, "assessment," 25 rather than fairness. What do you mean by an assessment?
2141 By whom and about what? 2 MR. BASIL ALEXANDER: Did anybody look at 3 the issues that I just addressed, particularly with 4 respect to the three (3) areas I brought up? 5 COMMISSIONER SIDNEY LINDEN: I'm not sure 6 how she would know if anybody looked at it. You can ask 7 her -- 8 MR. BASIL ALEXANDER: Is she aware -- 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 MR. BASIL ALEXANDER: -- is she aware of 11 anybody? 12 COMMISSIONER SIDNEY LINDEN: Okay. 13 THE WITNESS: "Anybody" is awfully broad. 14 Do you mean within government? Do you mean whether there 15 have been an academic who had considered the issue? I -- 16 I don't understand what you're asking me. 17 18 CONTINUED BY MR. BASIL ALEXANDER: 19 Q: I'm just trying to understand your 20 knowledge. I'm trying -- 21 A: I had no knowledge. 22 Q: You had no knowledge, that's -- 23 A: I -- all I knew -- because the only 24 information that we had been provided by the Stoney 25 Pointers as at September 6th, 1995 was that it's their
2151 land and that they had raised the issue of burial 2 grounds. 3 We had -- there was no elaboration of 4 either of those assertions. 5 Q: Thank you. I can move on from there. 6 Now, you've testified that you've heard and observed Deb 7 Hutton at both IMC meetings, correct? 8 A: Yes. 9 Q: And it was clear to you that she was 10 speaking on behalf of the Premier, correct? 11 A: Yes. 12 Q: And she clearly indicated, on 13 September 5th, that the Premier was 'hawkish' and wanted 14 the occupiers removed as soon as possible, correct? 15 16 (BRIEF PAUSE) 17 18 Q: I believe that's the language that 19 you gave in-chief. It's very similar to that, you said 20 as quickly as possible. 21 A: Well, I reiterate whatever I said in- 22 chief. 23 Q: Yeah. 24 A: Yes. 25 Q: Which is similar to what I just said.
2161 A: Well, similar sometimes isn't good 2 enough. 3 Q: Hmm hmm. 4 A: You know -- sorry, I'm looking at my 5 notes of September 6th. 6 7 (BRIEF PAUSE) 8 9 A: On September the 4th, Ms. Hutton says 10 that the Premier is hawkish on this issue. She said it 11 would set the tone for how we deal with these issues over 12 the next four (4) years. She said it's a clear cut issue 13 of Ontario's ownership of the property and she said 14 something about how this may be the time and place to 15 move decisively. 16 As I've indicated, I think I did not 17 capture all of the remarks that she -- I know that I did 18 not capture all of the remarks that she made that day. 19 Q: Do you recall your testimony on Thurs 20 -- on Thursday when you said that you understood that the 21 Premier -- that the Premier was hawkish and that Deb 22 Hutton was indicating that she wanted the occupiers 23 removed as soon as possible? 24 A: She wanted the occupation ended as 25 soon as possible.
2171 Q: And that would involve the occupiers 2 leaving? 3 A: Well, either the occupiers -- 4 Q: Leaving the disputed area? 5 A: -- could leave, in which case there 6 was no longer an occupation and no longer a trespass or 7 the police would have to go into the Park and make 8 arrests or escort people out informally. 9 Q: And you've also indicated that you 10 viewed this as aggressive, correct? 11 A: It was -- yes. 12 Q: And you also indicated that when this 13 comment occurred, that you felt it was a bit of a rebuke? 14 A: No, the reference to a rebuke was 15 when Ms. Hutton told the group that she was going to 16 phone the Premier. 17 COMMISSIONER SIDNEY LINDEN: Yes. You're 18 not just going to go over the evidence that's already 19 been heard or are you going somewhere? 20 MR. BASIL ALEXANDER: I'm getting to the 21 -- I'm getting to a point. 22 COMMISSIONER SIDNEY LINDEN: All right. 23 That's fine. 24 MR. BASIL ALEXANDER: Yeah. 25 THE WITNESS: The -- the timing of that
2181 comment and the tone of the comments suggested to me that 2 it was something of a rebuke. 3 4 CONTINUED BY MR. BASIL ALEXANDER: 5 Q: Okay. I suggest to you that the 6 Committee was under what -- what you viewed as aggressive 7 pressure from the Premier to remove the occupiers as soon 8 as possible. 9 10 (BRIEF PAUSE) 11 12 A: Ms. Hutton was clearly indicating the 13 Premier's preference to -- to see that the occupation of 14 the Park ended quickly. There was also, in Ms. Hutton's 15 comments, a suggestion that the Premier or Ms. Hutton, 16 that a government believed that they could direct the 17 Ontario Provincial Police to do so. 18 I think that's my evidence. 19 Q: Now, when I look at the notes and I 20 see you've talked about the tension and you've talked 21 about the change -- 22 A: Hmm hmm. 23 Q: What I really see though are only 24 options that result in ending the occupation and result 25 in removal of the occupiers.
2191 A: What do you see that you're -- that 2 you're referring to? 3 Q: Specifically I look to your September 4 5th minutes, which is at Tab 14, at page 5. 5 A: Hmm hmm. 6 Q: And you see a, "Liz" half way down 7 the page? 8 A: Yes. 9 Q: And there's five (5) options? 10 A: Yes. 11 Q: Criminal Code, mischief, provincial 12 offences and the injunction. 13 A: Yes. Elizabeth was describing the 14 legal mechanisms available in the case of the injunction, 15 available to the province, and in the case of the other 16 four (4) available to law enforcers to address the 17 occupation of the Park. 18 So they were the formal, legal mechanisms 19 that were available to do so. 20 Q: But you were looking at these 21 mechanisms in the context of removing them as quickly -- 22 removing the occupiers as quickly as possible from the 23 Park? 24 A: Certainly it was our under -- it was 25 my understanding that that was the preference of the
2201 Premier. 2 Q: Okay. Now I want to put something to 3 you and to get an idea of what, "as quickly as possible," 4 refers to. 5 And if you look at the documents I've 6 provided to you, it should be the first document on the 7 very top? 8 A: The handwritten note? 9 Q: The handwritten note. It's Inquiry 10 document 3000776 and this has been marked as Exhibit P- 11 550. 12 A: Do you know who they belong to? 13 Q: I was about to get to that. 14 A: Thank you. 15 Q: The evidence has been, and I 16 anticipate the evidence will further show that these are 17 the handwritten notes of Larry Taman during September 18 6th, 1995. 19 And what I want to bring to your attention 20 is the line, the third line which starts with, "AG"; do 21 you see it? 22 A: I do. 23 Q: And it says: 24 "AG instructed by P. that he desires 25 removal withing twenty-four (24) hours.
2211 Instruction to seek injunction." 2 We understand that to -- we understand 3 that to be Attorney General instructed by the Premier 4 that he desires removal within twenty-four (24) hours. 5 What I want to focus on is the number twenty-four (24) 6 hours and the time period. 7 Is twenty-four (24) hours consistent with 8 your recollection of the tone and timelines to remove the 9 occupiers as quickly as possible? 10 A: I don't recall there ever being a 11 specific timeline provided. I think it could be 12 consistent with the tone. 13 Q: It was consistent with the tone 14 though. I wasn't -- 15 A: I think so. 16 Q: Yeah. I wasn't asking about is -- 17 was there a specific date or time? 18 A: There was no specific time provided 19 but it's consistent with the tone. 20 Q: It's very -- but it was consistent 21 with the tone in your understanding that Ms. Hutton 22 indicated that they wanted the occupiers out of the Park 23 as soon as possible? 24 A: Yes. 25 Q: I'm also going to suggest to you that
2221 one of the consequences of the requirement of Ms. 2 Hutton's comments on behalf of the Premier, that they 3 wanted the occupiers out of the Park as soon as possible, 4 is that left very little time to research other issues, 5 and that time would also be reduced after the events of 6 September 6th in light of what happened? 7 A: I'm sorry, I'm not sure I understand 8 your question. 9 Q: The occupation occurred on September 10 4th, correct? 11 A: Late in the day. 12 Q: The first meeting was on September 13 5th, correct? 14 A: That's right. 15 Q: The issue of the surrender was raised 16 on September 5th, correct? 17 A: Tim mentioned -- yes, the surrender. 18 Q: The surrender was men -- 19 A: No. Tim mentioned a surrender on 20 September 6th. 21 Q: I'm sorry. Let me -- I'll -- I'll be 22 more precise. The issue of the surrender likely being 23 the -- I'll start again. 24 The issue of the case of reinforcing 25 Ontario's title was mentioned on September 5th?
2231 A: Yes. 2 Q: On September 6th, Tim mentioned the 3 issue of the injunction and the relation of proving title 4 and the importance of surrender in that, correct? 5 A: Yes. 6 Q: And there was also the briefing that 7 was looked at the statutory law regarding burial grounds? 8 A: Yes. 9 Q: And in all of this, the context that 10 this was all occurring in was that the occupiers were to 11 be removed as soon as possible, correct? 12 A: Yes. 13 Q: And it appears from the note I've 14 just shown you that that would be about twenty-four (24) 15 hours within September 6th. 16 A: I have no knowledge of that though. 17 Q: But, it's consistent with the tone 18 that you -- the tone and what you saw and what you 19 heard -- 20 A: Yes. Yes. 21 Q: -- at the meeting. 22 A: Absolutely. Yes. 23 Q: And in light of this and in light of 24 the focus of getting the materials prepared for the 25 injunction, and preparing for the injunction, there would
2241 have been little time to determine any issues with 2 respect to the surrender or the burial grounds, 3 particularly the common law obligations to the burial 4 grounds? 5 A: Any attempt at that point to research 6 issues, and don't forget, some had already been done 7 before this time, but -- but you know, the effort to -- 8 to research possible technical deficiencies or on a 9 fairness basis, any problems with the surrender were just 10 completely beyond the their scope of anything that we 11 could do, certainly in that timeframe, but more to the 12 point because we had no information from the occupiers of 13 the Park about what under 14 -- underpinned their assertion of ownership of the Park. 15 Anything that we would have done would 16 have been speculative and unguided because we had no 17 helpful information from the occupiers of the Park 18 concerning why they were occupying it. 19 Q: I'm focussing on the time frame. 20 Focussing specifically on the timeframe. The timeframe 21 did not allow for that either, correct? 22 A: But, I'm suggesting there were other 23 things that played into that. 24 Q: But, to my -- the timeframe was 25 definitely a major contributing factor, correct?
2251 A: I didn't help prepare the injunction 2 application materials. But -- but from little I know of 3 that appli -- injunction application material there would 4 have had to be some research done in order to support the 5 -- the application. I was -- I didn't participate in 6 that and I don't know what -- what that entailed. 7 Q: But, you would agree it was a short 8 period either way as it was two (2) days at the end -- 9 from where this all started on September 5th? 10 A: Yes, it was a short period. 11 Q: Okay. And after September 6th, 12 obviously given the events of September 6th, there was 13 significant things that were going on within government 14 and within everything, so time was not easily available 15 at that point either? 16 A: I don't know that after September 6th 17 there were issues about the time that might have been 18 available. There was still a complete lack of 19 information about -- 20 Q: But there were other -- 21 A: -- why the occupiers had occupied 22 Ipperwash Provincial Park. 23 Q: But there were other priorities in 24 terms of dealing with what had happened as a result of 25 the events of September 6th?
2261 A: Certainly a -- a great deal of -- of 2 ONAS' resources were directed at -- at reacting to the -- 3 the shooting. 4 Q: Okay. 5 A: Yes. 6 Q: I'll move onto another area. 7 Now, from your notes of September 6th and 8 from your testimony regarding that meeting it appears 9 clear that the civil injunction experts, which I 10 understand to be Tim McCabe and Elizabeth Christie, were 11 -- indicated that this was not a case for an ex parte 12 injunction? 13 A: I think Tim qualified it by saying, 14 essentially, unless there are some public safety concerns 15 essentially that we're not aware about, but yes, Tim's 16 very clear advice to the committee was that this was not 17 a situation in which we were very likely to be successful 18 in seeking an ex parte application. 19 Q: Okay. I want -- 20 A: Injunction, I'm sorry. 21 Q: If I can take you to page 6 of those 22 notes. 23 A: Of my handwritten notes? 24 Q: Of your handwritten notes. This is 25 September 6th Inquiry Document 1011739 Exhibit -- oh, I'm
2271 sorry, that's the wrong Inquiry Document Number. The 2 Inquiry Document Number is 1011784 and it's at Tab 17 and 3 the exhibit number is P-636. 4 5 (BRIEF PAUSE) 6 7 Q: And what I'm looking at is I'm 8 looking about two-thirds (2/3's) of the way down the page 9 where it says, "Tim." 10 A: I see that. 11 Q: And this appears to be an indication 12 of the steps that would be involved in the injunction. 13 COMMISSIONER SIDNEY LINDEN: Which page 14 in the -- 15 MR. BASIL ALEXANDER: Page 6 of the 16 September 6th notes. 17 COMMISSIONER SIDNEY LINDEN: Page 6 of 18 September 6th. 19 THE WITNESS: Not quite. Tim had 20 actually started his discussion of how we would proceed 21 to obtain an injunction at page 4 of my notes at the 22 bottom. 23 24 CONTINUED BY MR. BASIL ALEXANDER: 25 Q: Hmm hmm.
2281 A: Or actually midway -- midway down the 2 page. On page 6 he sort of covered that ground and he's 3 now talking about they -- I -- I think being the Stoney 4 Pointers -- seeking an adjournment of the motion for an 5 interlocutory injunction and if they do, you know, we'll 6 argue this. 7 So, he's actually well along in his 8 description about the process for obtaining an injunction 9 and the considerations that attach to it. 10 Q: Thank you for correcting me on that. 11 It's not material for what I'm going to be going to. 12 A: Okay. 13 Q: What I'm interested in is the next 14 line, actually, which seems to be about the injunction 15 would be enforced. 16 And the following line as well where it 17 says: 18 "Sheriff enforces order, asks the OPP 19 --" 20 A: "Asks for OPP assistance to do so." 21 Q: Assistance. 22 A: "Police discretion as to how." 23 Q: Hmm hmm. And then the next -- sorry. 24 A: And then he says: 25 "If -- if a refusal to move, these
2291 people are in contempt and we go back 2 to court." 3 Q: Okay. So, what I understand from 4 this is even if there is not -- even if the order is 5 obeyed it's not an automatic removal of people from the 6 Park, there would be a requirement to go back to court? 7 A: I'm not an expert on injunctions and 8 what I know is what it says here essentially. 9 Q: Okay. But is that a fair 10 interpretation of what it says here? 11 A: I -- I had understood the reference 12 to going back to court to being if -- if the occupiers 13 didn't leave, they're in contempt but that you would go 14 back to court to have the contempt issue dealt with. 15 Q: And that's my point -- 16 A: Okay. 17 Q: -- is that in order to move the next 18 step you have to go back to court to do the contempt. 19 And I'll take you to actually your September 5th notes at 20 page 5. 21 COMMISSIONER SIDNEY LINDEN: That's 22 assuming non compliance. That's assuming that they don't 23 comply. 24 MR. BASIL ALEXANDER: This is assuming 25 non compliance, yes.
2301 2 CONTINUED BY MR. BASIL ALEXANDER: 3 Q: And the Commissioner has actually 4 made my point right at the bottom of the page from where 5 Elizabeth Christie, after she talks about her options, 6 and she says -- and it's stated: 7 "The problem arises when they don't 8 comply with the order. Civil or 9 criminal contempt proceedings. And if 10 they don't leave it comes down to using 11 force." 12 A: That's right. 13 Q: But the contempt proceeding is an 14 important part of that. 15 A: Again, I'm not a civil litigator and 16 if you're asking for my opinion about the importance of 17 contempt proceedings, it's just not something I can speak 18 to. 19 Q: Okay. What I'm going to suggest to 20 you is, in light of this, is that even though the 21 injunction would be heard on Friday at the earliest 22 because that was the indication that Tim indicated at the 23 meeting. 24 A: Yep. 25 Q: Removal of the occupiers would not
2311 necessarily occur on Friday. 2 A: That's correct. 3 COMMISSIONER SIDNEY LINDEN: Again, if 4 they refuse to comply. I mean there's always the 5 possibility that once the injunction's obtained. I just 6 want to make sure because I thought earlier you said even 7 if there was compliance they would have to be returned to 8 court. 9 MR. BASIL ALEXANDER: No, you are -- 10 you're correct. If they -- 11 COMMISSIONER SIDNEY LINDEN: I think if 12 they comply there's no need to go back to court. 13 MR. BASIL ALEXANDER: If they comply, 14 totally different issue. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 MR. BASIS ALEXANDER: If they refuse to 17 comply. 18 COMMISSIONER SIDNEY LINDEN: Right, yes. 19 20 CONTINUED BY MR. BASIL ALEXANDER: 21 Q: So it would not -- the entire issue 22 would not be dealt with within one (1) or two (2) days or 23 twenty-four (24) hours, correct? 24 A: It didn't seem so. 25 Q: In fact it may even take two (2)
2321 weeks to get it done. 2 A: I -- 3 MS. KIM TWOHIG: I'm sorry, Mr. 4 Commissioner. It seems as though the Witness is being 5 asked to speculate about the possible affects of certain 6 civil procedures if the injunction is not complied with. 7 And she's indicated that she can't really answer those 8 questions. 9 COMMISSIONER SIDNEY LINDEN: Well, she 10 certainly can't be specific regarding times in the event 11 of non compliance. 12 MS. KIM TWOHIG: Yes. 13 14 CONTINUED BY MR. BASIL ALEXANDER: 15 Q: Regardless, it would take more than 16 just Friday in terms of getting everything done and it 17 would reasonably take a few more -- some more time before 18 it actually went on, correct? 19 A: Well that would be a decision to be 20 taken by the sheriff and the -- and the OPP who would be 21 responsible for enforcing the injunction. 22 Q: And that's the other elements of this 23 is that both the sheriff and the OPP would be involved 24 and there would -- their discretions would be involved in 25 terms of the enforcement of the order.
2331 A: That's my understanding. 2 Q: Okay. And then only if there's non 3 compliance would you go back for contempt? 4 A: That's my understanding. 5 Q: Okay. Now we've heard evidence from 6 Ron Fox, during the testimony of Ron Fox that the 7 Minister of Natural Resources Chris Hodgson said to him: 8 "Well, even if we get this enjoining 9 order, like how long would the police 10 sit on it -- two weeks?" 11 Is that consistent with the idea of there 12 would need to be a time lapse before -- between getting 13 the order, the requirements if non-compliance occurs and 14 doing -- 15 A: I'm sorry to do this to you. Could 16 you ask the question again? 17 Q: We've heard evidence during the 18 testimony of Ron Fox that the Minister of Natural 19 Resources Chris Hodgson said to him that: 20 "Well, even if we get this enjoining 21 order, like how long would the police 22 sit on it -- two weeks?" 23 I'm trying to determine if that is 24 consistent with your understanding of the fact that, if 25 non compliance occurs, it would not -- the issue would
2341 not be dealt with in twenty-four (24) hours. 2 MS. KIM TWOHIG: I'm sorry, Mr. 3 Commissioner. The question seems to be asking Ms. 4 Hipfner to interpret what Mr. Fox, Inspector Fox might 5 have meant and then to try to apply that to a certain set 6 of circumstances. And I'm not sure that's a fair 7 question. 8 COMMISSIONER SIDNEY LINDEN: What the 9 Minister might have thought or meant; the Minister's 10 statement. The two (2) weeks comes from the Minister's 11 statement I gather. 12 MR. BASIL ALEXANDER: Yes. 13 COMMISSIONER SIDNEY LINDEN: Yes. So 14 you're trying to speculate what the Minister meant. 15 MS. KIM TWOHIG: Yes. But I understand 16 she's also being asked to interpret what Inspector Fox 17 meant when he said we would, you know, how long would we 18 sit on it, what that actually means. 19 MR. BASIS ALEXANDER: I can clarify what 20 the police meant in terms of -- I can try to clarify that 21 for My Friend, if I would. 22 COMMISSIONER SIDNEY LINDEN: Well -- 23 MR. BASIL ALEXANDER: I am interested in 24 the two (2) weeks, is my point at the end of the day. 25 COMMISSIONER SIDNEY LINDEN: The two (2)
2351 weeks comes from a statement from the Minister; is that 2 correct? 3 MR. BASIL ALEXANDER: It comes from the 4 transcript, yes. 5 COMMISSIONER SIDNEY LINDEN: It comes 6 from the transcript. You might want to put where that's 7 from, just mention it, just so that she knows what you're 8 talking about. 9 10 CONTINUED BY MR. BASIL ALEXANDER: 11 Q: If you look in the package of 12 documents I've given you, it's the last document. 13 14 (BRIEF PAUSE) 15 16 Q: And this is a transcript of a 17 telephone or an excerpt of a transcript of a telephone 18 call between John Carson, Ron Fox and Chris Coles, on 19 September 6th at 1995, at two o'clock -- at approximately 20 2:00 p.m. and this has been marked previously as Exhibit 21 P-44 -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. BASIL ALEXANDER: -- 4(a), Tab 37. 24 25 CONTINUED BY MR. BASIL ALEXANDER:
2361 Q: And where this line is coming from, 2 is it's coming from page 266 which should be the second 3 last page -- 4 A: Okay. 5 Q: -- in your package, in this 6 particular document. And if you look where it says "Fox" 7 -- actually I'll go back a step. 8 If you look at page 265, at the very 9 bottom it says: 10 "No, no, no. This is the Minister of 11 Natural resources." 12 A: Okay. 13 Q: And then there's some discussion and 14 then at the bottom of page 266 it appears that he's 15 recounting a conversation with the Minister and he says: 16 "Well, even if we get this adjoining 17 [which we understanding to be 18 enjoining] Order, like how long will 19 the police sit on it? Two (2) weeks." 20 Is that consistent with the issue that if 21 there's non-compliance of the Order, there will be a time 22 lag between returning back to the Court? 23 MS. KATHERINE HENSEL: Excuse me. The 24 witness has already provided an answer to the question of 25 whether she had any knowledge of the process or even
2371 really the timelines that might be contemplated within 2 the process or the police's -- you know, she can't 3 comment on what the police might or might not do and what 4 their timelines might be. 5 COMMISSIONER SIDNEY LINDEN: I think 6 that's correct, Mr. Alexander. 7 MR. BASIL ALEXANDER: I can move on. 8 9 CONTINUED BY MR. BASIL ALEXANDER: 10 Q: Now, you were aware of the difference 11 of ex parte without notice, versus a with notice 12 injunction, correct? 13 A: I was aware because Tim explained it. 14 Q: And -- 15 A: At the September 6th meeting. 16 Q: And at the September 6th meeting, the 17 decision was to proceed -- the recommendation was to 18 proceed as a normal injunction, although perhaps abridge 19 the notice period, correct? 20 A: I don't know that there was, in fact, 21 that firm a decision taken by the Committee. 22 My recommendation is that Tim had said -- 23 Tim had recommended that this was not a case for an ex 24 parte injunction and that that was accepted by the group. 25 Q: We've heard testimony from Julie Jai
2381 that that indicated that it meant that it would be a 2 regular injunction, not an ex parte injunction. 3 A: That was my understanding, yes. 4 Q: Okay. When did you find out that the 5 injunction was proceeding ex parte? 6 A: I think it was -- well, actually, I 7 don't know. I know that I knew it at the point where Tim 8 and I had a discussion on the telephone sometime on 9 September 7th, that he had applied for an ex parte 10 injunction. 11 I don't know -- I don't remember whether I 12 knew that, though, before my discussion with Tim. I 13 simply don't remember that. 14 Q: In light of your -- in light of your 15 understanding, though, were you at all surprised that the 16 injunction had -- had proceeded on an ex parte basis? 17 A: I remember being surprised, yes. 18 Q: Why were you surprised? 19 A: Because the -- the view of the 20 Committee, the previous day had been that, in accordance 21 with Tim McCabe's advice, there just wasn't much -- much 22 likelihood of succeeding with an application for an ex 23 parte injunction. 24 So, my expectation had simply been, and my 25 understanding had been, that the -- the injunction
2391 application would be proceeded with in the normal way, 2 recognizing, however, that the -- the Government can 3 always change its mind. 4 It can always change -- can always decide 5 that it doesn't want to follow the recommendations that 6 are made to it by civil servants or -- including the 7 civil servants who are lawyers. 8 Q: But it was consistent -- it was 9 inconsistent with the recommendations that had been done 10 at the end of the IMC, correct? 11 A: It was inconsistent with my 12 recollection that the Committee agreed that a normal 13 injunction would be -- would be recommended. 14 Q: During the discussions at the IMC 15 meeting on September 6th were there general discussions 16 about the general content of the order? 17 A: Certainly there was some. I recall 18 Tim talking -- Tim McCabe, discussing the sorts of things 19 that you would include or that you would have to do in 20 order to support an injunction application. 21 And do you want me to find that? 22 Q: That would be helpful. I see on -- 23 A: Well, I -- I guess it's at the bottom 24 of page 4 -- 25 Q: Hmm hmm; that's what I was going to
2401 take you to -- 2 A: -- of my notes. 3 Q: -- as well. That seems to be the 4 grounds of the injunction. 5 Was it your impression or understanding 6 that the injunction would be directed against the 7 occupiers? 8 A: The -- it was the conduct of the 9 occupiers that was at issue, that was creating the 10 trespass. 11 Q: So, it -- 12 A: So, my understanding is that -- is 13 that the injunction would be directed at the occupiers of 14 the Park, yes. 15 Q: I know it's an obvious question, I am 16 going somewhere with it. 17 A: Okay. 18 Q: Now, looking through your notes, 19 particularly through September 6 there's many references 20 to MNR and I don't propose to take you to all of them in 21 the interest of time, but it seems to summarize that MNR 22 did not really want to carry the thing any -- did not 23 really want to carry this issue anymore. 24 They were concerned that it was spiralling 25 out of their hands and Peter Allen I believe it was made
2411 specific reference to staff accompanying the OPP to serve 2 notice and being asked to wear bulletproof vests; does 3 that sound familiar? 4 A: It all sounds familiar to me, yes. 5 Q: Okay. I'm going to take you to 6 specifically page 7 of the September 6th notes. And if 7 you look about halfway down the page, but it says, 8 "Bangs." 9 "MNR may withdraw its staff from area. 10 Not have them participate any longer." 11 Do you recall that statement being made at 12 the Committee? 13 A: No. 14 Q: Okay. And I want to take you to a 15 document in your package. It's one (1) of the single 16 page documents, Document Number 1012311. 17 Do you have it? 18 A: I have it. 19 Q: This appears to be a memorandum to 20 Peter Sturdy from Ron Vrancart who was the Deputy 21 Minister of Natural Resources and it's dated September 22 6th, 1995. 23 And I'm looking at the first paragraph 24 where it says: 25 "I've discussed with the Minister our
2421 mutual concerns for the safety of 2 Ministry of Natural Resources staff 3 working at Ipperwash Park. Given the 4 current uncertainty of circumstances in 5 the Park I'm requesting that the Park 6 staff be reassigned to other duties 7 until such time as the situation at 8 Ipperwash returns to normal." 9 Have you ever seen this letter at all? 10 A: No, I haven't. 11 Q: Does it appear consistent with the 12 comment made by Mr. Bangs that they may be withdrawing 13 MNR staff from the Park? 14 A: Yes. 15 Q: Okay. 16 17 (BRIEF PAUSE) 18 19 Q: Was it your understanding from what 20 you saw and heard at the meeting on September 6th that 21 the MNR staff and MNR officials did not want to be 22 involved with the Ipperwash Park situation anymore and 23 didn't want to go to the grounds anymore, and if they 24 went, they went with OPP officers? 25 A: There's more than one (1) question in
2431 there. 2 Q: Hmm hmm. 3 A: And what was the first of them? 4 Q: The first one was that the MNR, by 5 September 6th, clearly from what I've seen in your notes 6 did not want to be at the Ipperwash Park anymore? 7 A: That's -- 8 MS. KIM TWOHIG: I understood -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MS. KIM TWOHIG: -- that as a statement 11 rather than a question. 12 COMMISSIONER SIDNEY LINDEN: Well, I 13 assume your question is, is that your understanding? 14 MR. BASIL ALEXANDER: Is that your 15 understanding? Yes. 16 17 CONTINUED BY MR. BASIL ALEXANDER: 18 Q: And I can take you to a number of MNR 19 statements on this. 20 COMMISSIONER SIDNEY LINDEN: No, no, 21 you've already asked her the question. She's about to 22 answer it. 23 THE WITNESS: My notes reflect Jeffrey 24 Bangs saying that MNR may withdraw its staff from the 25 area, not have them participate any longer.
2441 I don't recall this statement being made. 2 It's certainly consistent, generally, with the discussion 3 that we had at the meeting, but I don't think that I can 4 add anything to what's in my notes. 5 6 CONTINUED BY MR. BASIL ALEXANDER: 7 Q: Okay. But you were aware that if MNR 8 staff were going to the Park and they would only go with 9 OPP officers. 10 A: I'm not sure that I knew that. 11 Q: Okay. But that is consistent with 12 what's in your notes on page 6 of the September 6th 13 notes. 14 COMMISSIONER SIDNEY LINDEN: Which date? 15 THE WITNESS: Where do you see that? 16 17 CONTINUED BY MR. BASIL ALEXANDER: 18 Q: September 6th, page 6. 19 COMMISSIONER SIDNEY LINDEN: Yes. What 20 statement are you referring to? 21 MR. BASIL ALEXANDER: Peter Sturdy. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. BASIL ALEXANDER: The second bulleted 24 note: 25 "I've got staff there right now
2451 accompanying OPP to serve notice, being 2 asked to wear bulletproof vests." 3 4 CONTINUED BY MR. BASIL ALEXANDER: 5 Q: And you've testified that Mr. Sturdy 6 seemed excited -- 7 A: Yes. 8 Q: -- on the phone? 9 A: Yes. 10 Q: And seemed concerned about what was 11 going on, on the ground? 12 A: Yes. 13 Q: So it appears the inference I'm 14 drawing from what I've read in the notes and your 15 testimony is that the MNR staff did not want to be there. 16 COMMISSIONER SIDNEY LINDEN: I'm not sure 17 where that comes from, from the notes; that's what I was 18 asking. I'm not sure if that's clear from the notes. 19 You could draw that inference, perhaps, but you'd have to 20 ask her if she draws that inference. 21 22 CONTINUED BY MR. BASIL ALEXANDER: 23 Q: Was it your understanding, based on 24 what you heard and saw at the meeting, that the MNR staff 25 were concerned about the safety of their people --
2461 A: Yes. 2 Q: -- at the Park? And that they did 3 not wish to be attending at the Park? 4 A: I think that's probably fair. 5 Q: And if they did attend at the Park, 6 they attended with OPP officers? 7 A: Well, I know that they attended with 8 an OPP officer to serve the notice, at least that's what 9 Peter Sturdy reported to the group. I don't know 10 generally whether they -- whether they had decided that 11 they would only attend with police officers; I just have 12 no knowledge of that. 13 Q: And it appears that, at the deputy 14 minister level, there was a request from the deputy 15 minister to remove people -- remove MNR staff from the 16 Park? 17 COMMISSIONER SIDNEY LINDEN: I'm not sure 18 how important it is, but it doesn't say that they would 19 only go with OPP, so that's the point that you're drawing 20 that I'm not sure where it comes from the material, and 21 it doesn't come from the Witness. 22 23 CONTINUED BY MR. BASIL ALEXANDER: 24 Q: I'm going to take you to Tab 35 of 25 your binder of documents to see if this assists with your
2471 memory. 2 3 (BRIEF PAUSE) 4 5 Q: Which is Inquiry document 103982. 6 THE REGISTRAR: 100? 7 MR. BASIL ALEXANDER: 100, yes. 8 9 (BRIEF PAUSE) 10 11 CONTINUED BY MR. BASIL ALEXANDER: 12 Q: This appears to be an e-mail from you 13 dated Thursday November 30th, 1995. 14 A: Yes. 15 Q: And the second paragraph indicates -- 16 states: 17 "MNR is indicating that its employees 18 will not go into the Park while any 19 member of Stoney Pointers may be in it, 20 despite the OPP's assurances that they 21 can provide MNR employees with adequate 22 protection." 23 MS. KATHERINE HENSEL: Excuse me, 24 Commissioner. Sorry, Mr. Alexander. This is two (2) 25 months later, two and a half (2 1/2) -- almost three (3)
2481 months later, so I'm not sure how My Friend can be asking 2 the Witness to draw a connection between the -- 3 COMMISSIONER SIDNEY LINDEN: Yes, the 4 date on this is November the 30th. The time period 5 you're asking about is September 6th. 6 MR. BASIL ALEXANDER: No, I'm going to 7 ask if this helps her memory in terms of whether or not 8 any discussions occurred or if she was aware of anything 9 on September given this statement two (2) months later. 10 MS. KATHERINE HENSEL: It would appear 11 from the document Mr. Alexander is referring to that the 12 -- that the MNR was insisting effective November 30th. 13 So what they were insisting November 30th, 14 it's difficult for me to see how that would refresh Ms. 15 Hipfner's memory with respect to September 5th or 16 September 6th. 17 COMMISSIONER SIDNEY LINDEN: Yes, it 18 looks like it's proscripted. We'll not go into the Park. 19 It doesn't look like its what was the situation on 20 September 6th. That's what it looks like from the note. 21 MR. BASIL ALEXANDER: Well can we mark -- 22 can we mark at least the previous document for 23 identification, 1012311? 24 COMMISSIONER SIDNEY LINDEN: Which 25 document was that?
2491 MR. BASIL ALEXANDER: The memorandum to 2 Peter Sturdy from Ron Vrancart, Deputy Minister. 3 COMMISSIONER SIDNEY LINDEN: Yes. That's 4 dated September the 6th. 5 MR. BASIS ALEXANDER: That's dated 6 September the 6th. And I read the first paragraph into 7 the record. 8 COMMISSIONER SIDNEY LINDEN: Yes. What 9 number is that? 10 THE REGISTRAR: What document number is-- 11 MR. BASIS ALEXANDER: 1012311. 12 THE REGISTRAR: P-727, Your Honour. 13 COMMISSIONER SIDNEY LINDEN: 727, 14 1012311. 15 16 --- EXHIBIT NO. P-727: Document Number 1012311. 17 Memorandum to P. Sturdy from 18 R. Vancart Re. Staff safety - 19 Ipperwash Prov. Park, Sept 20 06/'95. 21 22 CONTINUED BY MR. BASIL ALEXANDER: 23 Q: Now I want to take you to the order 24 that was sought at the Hearing of the injunction 25 application which is the last document on the package
2501 that I gave you. 2 It's an excerpt from what I've given you 3 or provided to you and the Commissioner, is an excerpt 4 from Exhibit P-551 which was -- the entirety of the 5 exhibit is the motion record of what was provided. 6 And what I've provided you for ease of 7 reference is the notice of motion without notice. And 8 for your general context and reference I anticipate the 9 evidence will be -- that attempts were made to have the 10 motion heard on the evening of September 6th and the 11 morning of September 7th and that it was actually heard 12 on the morning of September 7th. That's just for -- 13 MS. KIM TWOHIG: I have no idea where Mr. 14 Alexander got that idea. And there's certainly no 15 evidence to that affect. 16 COMMISSIONER SIDNEY LINDEN: Which idea, 17 that the motion was supposed to be heard? 18 MS. KIM TWOHIG: That -- that they had 19 hoped to have it heard on the evening of September 6th. 20 I don't believe there was any evidence to that affect. 21 Nor is there likely to be. 22 COMMISSIONER SIDNEY LINDEN: Do you have 23 any recollection to that, Ms. Hensel? 24 MS. KATHERINE HENSEL: Unless Mr. 25 Alexander can point to something specific, it's new to
2511 me. 2 MR. BASIL ALEXANDER: I'd have to discuss 3 it with Mr. Klippenstein. Mr. Klippenstein is the one 4 who has -- who has advised me of this, of that 5 anticipated evidence given his familiarity of the 6 documents. And I unfortunately do not -- I'm not able to 7 contact him at this particular point. 8 COMMISSIONER SIDNEY LINDEN: Well just 9 carry on. Just carry on with your examination then. 10 11 CONTINUED BY MR. BASIL ALEXANDER: 12 Q: I want to take you to Clause 3 of the 13 relief sought which is page 7. And I'll read parts of 14 it: 15 "In order that such officers, agents 16 and servants of the Government of 17 Ontario, that are directed to do so by 18 any minister or deputy minister remove 19 forthwith..." 20 It lists -- 21 A: I'm going to stop you just for -- I 22 don't see where you are. 23 Q: Sorry? 24 A: I don't see where you are. 25 Q: It should -- there should be a page 7
2521 in the top right-hand corner. 2 A: Okay. 3 Q: And there's a number 3. 4 A: Found it. 5 Q: Okay. 6 "In order that such officers, agents 7 and servants of the Government of 8 Ontario that are directed to do so by 9 any minister or deputy minister remove 10 forthwith all camping equipment, 11 vehicles, blockades and other things 12 whatsoever that have been placed on the 13 road or public highway..." 14 I'll skip to the last line. 15 "Within or at any entrance to the 16 Park." 17 Do you recall anything of this nature 18 being discussed at the IMC? 19 A: Yes. I recall somebody reporting 20 that -- well I should probably actually go to my minutes 21 of the meeting. 22 23 (BRIEF PAUSE) 24 25 Peter Sturdy, at the bottom of page 2 of
2531 my notes of the September 6th meeting, reported that 2 there was heavy equipment work being done in the Park, 3 Park buildings have been broken into. That doesn't 4 actually address the issue of things being placed in the 5 road, but yes, I do recall some discussion about things 6 being placed in the road. 7 Q: What I'm interested in is the part 8 about -- the first part of this clause which says: 9 "An order that such officers, agents 10 and servants of the Government of 11 Ontario, that are directed to do so by 12 any Minister or Deputy Minister, remove 13 forthwith." 14 A: I didn't prepare the injunction 15 application materials. This may be the first time I've 16 ever looked at this paragraph and I don't think that I 17 have any information about it that might -- that would 18 assist you. 19 Q: The only question I have in terms of 20 whether you recall is: Do you have any recollection that 21 any part of the order would be directed against civil 22 servants? 23 A: It just wasn't within my knowledge. 24 Q: Okay. 25
2541 (BRIEF PAUSE) 2 3 Q: I -- 4 MS. KIM TWOHIG: Mr. Commissioner, while 5 we're here perhaps I could just raise the issue that I'm 6 not sure it's accurate to say that the paragraph of the 7 order that Mr. Alexander is referring to is directed 8 against civil servants as he suggests. 9 Rather, one could read it as enabling 10 ministers or deputy ministers to give direction to staff 11 which would be sanctioned by the Court and I think that's 12 a very different thing. 13 COMMISSIONER SIDNEY LINDEN: Well, I 14 don't want to get into that at this point unless you have 15 to, Ms. Twohig. She doesn't know anything about it. She 16 didn't prepare it, she doesn't know anything about it. 17 I assume this is going to come up again. 18 Mr. Klippenstein raised it in his examination and I 19 assume we're going to see this again. I don't know if 20 this is an ordinary clause or an extraordinary clause. 21 MR. BASIL ALEXANDER: No. 22 COMMISSIONER SIDNEY LINDEN: I assume -- 23 MR. BASIL ALEXANDER: And I don't tend to 24 explore that with this Witness. 25 COMMISSIONER SIDNEY LINDEN: -- we're
2551 going to hear more. 2 3 CONTINUED BY MR. BASIL ALEXANDER: 4 Q: No. What I want to focus on is the 5 words, "any minister," and bring that back to your 6 experience at the IMC. 7 8 (BRIEF PAUSE) 9 10 Q: If we assume that, "any minister," 11 refers practically to the ministers involved or 12 interested in Ipperwash as present at the 13 Interministerial Committee, I suggest the key ministers 14 would be the Minister of Natural Resources and the 15 Premier; would you agree with me? 16 COMMISSIONER SIDNEY LINDEN: The 17 Interministerial Committee? I'm sorry, I don't mean to 18 interrupt, but there are more than just your Minister of 19 Natural Resources and the Premier represented here. 20 MR. BASIL ALEXANDER: I'm not disagreeing 21 with you, I'm asking based on this Witness' experience at 22 the Interministerial Committee. 23 COMMISSIONER SIDNEY LINDEN: She has no 24 experience with this particular issue, though she has 25 experience at the -- at the committee. She was there,
2561 she didn't have experience, but I'm not sure how that's 2 going to help her to answer questions about the language 3 in this order. 4 MR. BASIL ALEXANDER: Okay. 5 COMMISSIONER SIDNEY LINDEN: I'm just not 6 sure how that's a question that this Witness can answer 7 given the answers she's given about her lack of knowledge 8 about this process. 9 10 (BRIEF PAUSE) 11 12 MR. BASIL ALEXANDER: Let me ask the 13 question this way: From what you saw and observed and 14 heard at the Interministerial Committee the ministries 15 and ministers who seemed to be most involved were the 16 Minister of Natural Resources and the Premier; would that 17 be correct? 18 MS. KATHERINE HENSEL: Excuse me, Mr. 19 Alexander. The ministers weren't -- just to be clear -- 20 weren't present at the Committee meeting, there were 21 representatives there from several ministries and it's -- 22 I'm not sure that this is a fair question to be asking 23 the Witness to assess. 24 COMMISSIONER SIDNEY LINDEN: I'm not 25 sure, it depends on what issue at the Committee.
2571 Different ministries were most involved which is the 2 expression you use depending on the issue that was being 3 discussed. 4 I'm not sure that the Premier and the 5 Minister of Natural Resources were the ones who were 6 mainly involved, even in the preparation of this 7 document. The Attorney General was involved in it as 8 well, I presume. 9 MS. KATHERINE HENSEL: Including in his 10 capacity as Minister -- 11 COMMISSIONER SIDNEY LINDEN: Yeah. 12 MS. KATHERINE HENSEL: -- Responsible for 13 Native Affairs. 14 MR. BASIL ALEXANDER: Well, let's go 15 through the ministers who were involved. 16 COMMISSIONER SIDNEY LINDEN: Well, I'm 17 not sure what -- how -- where you're going, what are you 18 doing? I'm not sure what you're trying to do, Mr. 19 Alexander, with all due respect. 20 MR. BASIL ALEXANDER: I'm trying to 21 draw -- 22 COMMISSIONER SIDNEY LINDEN: With this 23 Witness. I mean, you may have an objective but I'm not 24 sure how you achieve whatever it is with this Witness. 25 She really does not have a great deal of
2581 information regarding this particular process or this 2 order or this language. 3 MR. BASIL ALEXANDER: I'll move on and 4 I'll finish off with one more point. 5 6 (BRIEF PAUSE) 7 8 MR. BASIL ALEXANDER: A moment, Mr. 9 Commissioner, I just need to find the right reference. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. BASIL ALEXANDER: 14 Q: If I can take you to your September 15 6th notes, page 3. And if we go to the bottom third of 16 the page where it says -- oh, I'm sorry, about half way 17 down the page where it says "Moran?" 18 A: Yes. 19 Q: I believe your evidence was that this 20 was Dave Moran? 21 A: Yes. 22 Q: And you indicated that the last line 23 of that point was: 24 "With respect to public carriage of the 25 issue, we are open to direction from
2591 the centre." 2 Correct? 3 A: That's what it says. 4 Q: And you indicated that -- I want to 5 focus on the issue of direction from the centre. Now, if 6 I recall your testimony in-chief, you indicated that this 7 related to direction from the Premier's office, correct? 8 A: I'm sorry, could you repeat your 9 question for me? 10 Q: If I recall your testimony in-chief 11 correctly, direction from the centre referred to 12 direction from the Premier's office? 13 A: Yes, under the Conservative 14 Government they developed a practice of referring to the 15 Premier's office as the centre. 16 Q: And was the Premier's office involved 17 in issues on a regular basis? 18 A: I don't know. 19 Q: But this was not a term that was used 20 prior to the Conservative Government? 21 A: No, the term the centre seemed to be 22 something that arrived with the new government. 23 Q: And it was something that was used 24 more with the new government? 25 A: Well, I don't recall it being used at
2601 all before then. 2 Q: Okay. Those are all my questions, 3 Mr. Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Thank you. 5 MR. BASIL ALEXANDER: And I'd like to 6 thank you, Ms. Hipfner. 7 THE WITNESS: You're welcome. 8 COMMISSIONER SIDNEY LINDEN: Thank you, 9 Mr. Alexander. 10 You have a problem, Mr. Roy? I'm sorry. 11 MR. JULIAN ROY: Just a quick 12 clarification of something that Ms. Twohig said on the 13 record in objecting to one of Mr. Alexander's questions, 14 and I thought it ought to be corrected because it was 15 said on the record and what Ms. Twohig said, in fact, was 16 incorrect. 17 That is when Mr. Alexander suggested that 18 there was some discussion about the injunction being 19 heard on the 6th and Ms. Twohig got up and said that 20 there was absolutely no evidence -- 21 COMMISSIONER SIDNEY LINDEN: No evidence 22 of that. 23 MR. JULIAN ROY: Well, in fact, there is 24 evidence. It's Exhibit P-515 which is which Ms. Jai's 25 memo of her discussion with Ron Fox where Ron Fox is told
2611 by Tim McCabe that an OPP officer is to be ready to give 2 viva voce evidence on that day, the -- 3 COMMISSIONER SIDNEY LINDEN: All right. 4 MR. JULIAN ROY: -- date of the note was 5 September 6th and Ms. Jai also testified to this effect 6 on September 13th at page 184. 7 So I just thought it would be important to 8 correct that, because Ms. Twohig, in fact, was wrong. 9 She'd misstated the evidence. 10 COMMISSIONER SIDNEY LINDEN: Well, I 11 wasn't sure when she raised that -- 12 MR. JULIAN ROY: Yeah. 13 COMMISSIONER SIDNEY LINDEN: -- I thought 14 there might be some evidence -- 15 MR. JULIAN ROY: Yes. 16 COMMISSIONER SIDNEY LINDEN: -- that 17 there was some reference to it. 18 MR. JULIAN ROY: In your Counsel -- your 19 Counsel had forgotten about that reference as well -- 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 MR. JULIAN ROY: -- so I thought I'd -- 22 we'd better clear it up now. 23 MR. BASIL ALEXANDER: I appreciate My 24 Friend's assistance -- 25 COMMISSIONER SIDNEY LINDEN: Thank you
2621 very much -- 2 MR. BASIL ALEXANDER: -- with that. 3 COMMISSIONER SIDNEY LINDEN: -- Mr. Roy, 4 that's helpful. 5 It's five o'clock now and I know the next 6 couple of cross-examinations are expected to be very 7 short. Should we push ahead and try to get some 8 completed? I think we should. 9 Ms. Esmonde...? 10 MS. JACKIE ESMONDE: I'm next and I had 11 anticipated half an hour to forty-five (45) minutes. I'm 12 not sure that that's very short. I'm happy to go ahead 13 if that's the direction. 14 COMMISSIONER SIDNEY LINDEN: Half hour -- 15 MS. JACKIE ESMONDE: Correct. 16 COMMISSIONER SIDNEY LINDEN: -- to forty- 17 five (45) minutes. 18 MS. KATHERINE HENSEL: Perhaps we should 19 check in with Ms. Hipfner. 20 COMMISSIONER SIDNEY LINDEN: She may have 21 had enough for the day. How long did you say and how 22 long do you expect now? 23 MR. CAMERON NEIL: It appears as though I 24 will have a few questions, probably less than ten (10) 25 minutes.
2631 COMMISSIONER SIDNEY LINDEN: I understand 2 there might be some and that your estimates haven't 3 changed since you gave them earlier? 4 I think we will adjourn now and I'm not 5 going to begin a cross-examination that's expected to 6 last a half hour to three-quarters of an hour. It's five 7 o'clock so I think we'll adjourn now and reconvene 8 tomorrow morning at nine o'clock. Thank you very much, 9 Ms. Hensel. 10 11 (WITNESS RETIRES) 12 13 THE REGISTRAR: This Public Inquiry is 14 adjourned until tomorrow Tuesday, September the 20th at 15 9:00 a.m. 16 17 --- Upon adjourning at 5:02 p.m. 18 19 Certified Correct 20 21 22 ________________________ 23 Dustin Warnock 24 25