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 27th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) (np) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) (np) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) (np) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) (np) Chiefs of Ontario 13 Matthew Horner ) (np) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) (np) 19 Erin Tully ) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 ELIZABETH ANNE CHRISTIE, Resumed 6 Cross-Examination by Ms. Anna Perschy 8 7 Cross-Examination by Ms. Andrea Tuck-Jackson 42 8 Cross-Examination by Ms. Janet Clermont 55 9 Cross-Examination by Mr. Murray Klippenstein 61 10 Cross-Examination by Mr. Peter Rosenthal 175 11 Cross-Examination by Mr. Cameron Neil 264 12 Cross-Examination by Mr. Jonathon George 281 13 Cross-Examination by Mr. Julian Roy 300 14 Cross-Examination by Ms. Kim Twohig 308 15 Re-Direct Examination by Mr. Donald Worme 321 16 17 18 Certificate of Transcript 327 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-746 Document Number 6000043. Fax cover 4 sheet to inspector Linton OPP from E. 5 Christie/T. McCabe, Sept.06/'95. 54 6 P-747 Document Number 1005990. Letter to 7 the registrar, Ontario court, Windsor, 8 Att. G. Chittle from J.T.S. McCabe, 9 Sept.06/'95; two (2) fax cover sheets 10 Sept.06/'95 and two (2) transaction 11 reports Sept.06/'95. 325 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:02 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. I think we're up to Anna Perschy on behalf of 8 Ms. Hutton. 9 Good morning, Ms, Perschy. 10 MS. ANNA PERSCHY: Good morning, 11 Commissioner. Good morning, Dr. Christie. 12 THE WITNESS: Good morning. 13 MS. ANNA PERSCHY: Thank you for allowing 14 me not to split my cross-examination. I was able to 15 provide Ms. -- Dr. Christie with some of the documents 16 that I'm going to refer to so I think that may -- 17 COMMISSIONER SIDNEY LINDEN: May help 18 us -- 19 MS. ANNA PERSCHY: -- help us to stay on 20 -- on track and -- 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 MS. ANNA PERSCHY: -- stay within the 23 estimate. 24 25 ELIZABETH ANNE CHRISTIE, Resumed;
81 CROSS-EXAMINATION BY MS. ANNA PERSCHY: 2 Q: Dr. Christie, you testified yesterday 3 in regards to a couple of Interministerial Committee 4 meetings that you attended back in 1993 and I just had a 5 few questions in -- in that regard. 6 If you could turn to the Interministerial 7 Committee meeting minutes of June 4th, 1993 which are at 8 Tab 2 of Commission Counsel's documents. These are 9 Inquiry Document 3000141, I believe that's been made 10 Exhibit P-745. 11 And under the heading, Camp Ipperwash, 12 there's a subheading 'C' and a reference to Doug Scott. 13 Do you see that, Dr. Christie? 14 A: Yes. 15 Q: Do you recall who Doug Scott was? 16 A: No, I don't. 17 Q: Well, according to the -- to the 18 meeting minutes, I'm looking at the second paragraph, 19 Doug summarized the draft legal options under review by 20 the Constitutional Law Unit available to the OPP should 21 they be asked to take action by the Military. 22 The preferred option by the OPP was -- 23 would be to ask the Military to first seek an injunction 24 and then use negotiation. And then the District 25 Superintendent at Camp Ipperwash informed Doug Scott that
91 around a thousand (1000) cadets were expected and 2 presence of Stoney Point people could pose problems for 3 the Military. 4 Do you recall Doug Scott providing 5 information in this regard? 6 A: I recall, generally, being at the 7 meeting. I don't recall the specifics of -- I believe 8 the minutes as they are recorded but I don't recall the 9 specifics. 10 Q: Okay. If you could take a look at 11 one of the documents that I provided to you, and this is 12 Document Number 2001225. It's a memo from Eileen Hipfner 13 to Doug Scott dated June 2nd, 1993 re. -- or forwarding 14 obligations of the OPP with respect to trespass by Stoney 15 Point community members on civil defence establishment at 16 Ipperwash. 17 Have you seen this document before? 18 A: I just had a chance to review it last 19 night. 20 Q: You -- you haven't seen it before 21 last night or you don't recall? 22 A: I may have seen it in '93 but I don't 23 recall. In '93 when I -- that was the first time that I 24 was asked to go and attend the meeting so it was very, 25 very fresh to me then.
101 Q: We've heard some evidence that Ms. 2 Hipfner prepared a legal opinion, actually this legal 3 opinion in regard to the OPP being asked to take action 4 by the Military and that the opinion was -- was reviewed 5 by the Constitutional Law Unit. 6 And having -- having reviewed the -- 7 A: I didn't work at the Constitutional 8 Law Unit. 9 Q: Sorry? 10 A: Just to be clear, I didn't work with 11 the Constitutional Law Unit. 12 Q: No, no. I appreciate that but the -- 13 the minutes indicate that Doug summarized the draft legal 14 options which were under review by the Constitutional Law 15 Unit. 16 And I'm just wondering if having had an 17 opportunity to review this document which is dated June 18 2nd, 1993, the memo of Eileen Hipfner, if that assists 19 your recollection at all in regard to Doug Scott's 20 providing a summary of draft legal options at the meeting 21 on June 4th? 22 A: No, I'm sorry, it doesn't. 23 Q: Okay. 24 COMMISSIONER SIDNEY LINDEN: Do you have 25 a copy of that memo for me?
111 MS. ANNA PERSCHY: I've provided several 2 copies. You should have a vanilla folder with -- 3 COMMISSIONER SIDNEY LINDEN: In this -- 4 MS. ANNA PERSCHY: -- of a bunch of 5 documents. 6 COMMISSIONER SIDNEY LINDEN: I'm sorry. 7 MS. ANNA PERSCHY: Yes. 8 COMMISSIONER SIDNEY LINDEN: I looked 9 through it, I didn't see it. What -- 10 MS. ANNA PERSCHY: It -- it should be the 11 one right at the top. It's Document Number -- 12 COMMISSIONER SIDNEY LINDEN: 1011784? 13 MS. ANNA PERSCHY: No. 2001225. It's 14 the memo from Eileen Hipfner -- 15 COMMISSIONER SIDNEY LINDEN: Just want to 16 make sure. 17 MS. ANNA PERSCHY: -- dated June 2nd, 18 1993. 19 COMMISSIONER SIDNEY LINDEN: 225, yes, I 20 have it. Thank you. 21 22 CONTINUED BY MS. ANNA PERSCHY: 23 Q: The minutes of the meeting of June 24 4th, 1993, the Interministerial Committee meeting, 25 indicate that the preferred option of the OPP would be to
121 ask the military to first seek an injunction. 2 Do you recall being advised of that at the 3 meeting? 4 A: Not specifically, but it doesn't 5 surprise me. 6 Q: And you don't recall in any great 7 detail what occurred at the meetings in 1993, and that's 8 -- that's understandable since that now occurred twelve 9 (12) years ago, but I take it that your memory of the 10 meetings that you attended in 1993 would have been better 11 in 1995 than it is today? 12 A: Yes. 13 Q: Other than your handwritten notes 14 with respect to the 1995 Interministerial Committee 15 meetings on September 5th and 6th, which I think are at 16 Tabs 9 and 14 of Commission Counsel's documents, I take 17 it you made no other contemporaneous notes of what 18 occurred at the meetings in 1995, on September 5th and 19 6th, the Interministerial Committee meetings? 20 A: Those are the only notes that I made 21 at the meetings. 22 Q: And the meetings of the 23 Interministerial Committee on Aboriginal Emergencies on 24 September 5 and 6 were specifically to address the 25 occupation of the Ipperwash Park, correct?
131 A: Yes. 2 Q: Prior to September 5, 1995, you had 3 become aware that the Province had acquired the lands 4 which later became Ipperwash Provincial Park by buying 5 them from private citizens; you knew that prior to the 6 meetings? 7 A: Yes. 8 Q: And, as I understand it, your 9 understanding was that the Province acquired the lands 10 the same way that any other person could, simply by 11 buying them; they bought them from -- from other private 12 parties? 13 A: Yes. My best recollection is that we 14 reviewed that, sort of, fact -- set of facts in the 1993 15 context. 16 Q: At the meeting of September 5, 1995, 17 I believe you testified that there was some mention of 18 the recent court decision by Justice Killeen -- 19 A: Yes. 20 Q: -- regarding the West Ipperwash beach 21 lands? 22 A: I'm not sure that I made mention of 23 it but I certainly recall that it was -- 24 Q: Could you take -- 25 A: -- raised.
141 Q: -- could you take a look at Document 2 Number 3000605? 3 A: Yes. 4 Q: It's a -- a decision of Justice 5 Killeen dated August 18th, 1995, between the Chippewas of 6 Kettle and Stony Point, the Attorney General of Canada, 7 the Corporation of the Town of Bosanquet and a number of 8 private parties, individuals. 9 I take it this is the decision which was - 10 - which was mentioned at the meeting on September the 11 5th, as best you can recall? 12 A: Yes. 13 14 (BRIEF PAUSE) 15 16 Q: And at the meeting on September 5th, 17 it was clear that this decision of Mr. Justice Killeen 18 did not involve the claim against the Ipperwash 19 Provincial Park? 20 A: Well, the -- the Province of Ontario 21 is not a party. 22 Q: No. I -- I appreciate that, but it 23 was clear at the meeting that it was dealing with 24 different lands? Well, if I can -- 25 A: I'm not sure --
151 Q: -- assist your recollection, if you 2 turn to -- I believe it's Tab 11 of Commission Counsel's 3 documents. It's the minutes, the official minutes of the 4 meeting on September the 5th and under Background and 5 Related Issues there's the reference to the lawsuit. And 6 then the second sentence says: 7 "There was a recent decision August 8 18th, 1995 confirming the validity of a 9 surrender by the Stony and Kettle Point 10 First Nation of land in the west 11 Ipperwash area. This did not deal with 12 the Park." 13 Does that assist your recollection? 14 A: Yes. I -- I guess that -- I mean I 15 don't -- I don't recall at this point the specifics of -- 16 of the surrender as I certainly would have known them at 17 the time. 18 But, whether the surrender was -- whether 19 it was all originally back in the early Twentieth Century 20 one (1) surrender to the Federal Government and then got 21 split up, I just -- it was a fairly convoluted path of 22 title onto the Park, but I can't -- and I can't recall 23 the specifics of it. 24 Q: You can't recall today, but you 25 likely would have back -- back at the time.
161 A: Yes at the time I probably would have 2 read the decision and... 3 Q: And the view at the meeting on 4 September 5th was that Ontario had good title to the 5 Park? 6 A: Yes. 7 8 (BRIEF PAUSE) 9 10 Q: Now, I believe your notes which are 11 at Tab 9 from the September 5th meeting, Inquiry Document 12 1011749. 13 MR. DONALD WORME: P-742. 14 MS. ANNA PERSCHY: P-742, thank you. 15 Thank you, Commission Counsel. 16 17 CONTINUED BY MS. ANNA PERSCHY: 18 Q: At page 1 of your notes, there's a 19 reference to new -- new archaeological evidence which may 20 have been obtained. 21 A: Yes. 22 Q: And I won't take you to it but in 23 Julie Jai's notes, they attribute a similar comment to 24 Dan Elliott. 25 Do you recall if Dan Elliott made a
171 comment along these lines? 2 A: Was Dan Elliott a Ministry of Natural 3 Resources -- 4 Q: Individual? Yes. 5 A: -- individual? I -- I believe that's 6 -- so, my recollection was that it was a Ministry of 7 Natural Resources individuals. Whether it was Dan 8 Elliott or not, I'm not sure. 9 Q: And I take you -- you don't know Dan 10 Elliott. 11 A: I don't remember him, no. 12 Q: Well, Mr. Elliott provided some 13 answers to undertakings in the civil litigation, and I 14 provided a copy to Ms. Twohig and I was just going to 15 summarize his answer. For the assistance of other 16 counsel, it's Document 3000407. It's the letter from 17 counsel dated June 19th, 2003 and it's Undertaking Number 18 135. 19 And in that answer Mr. Elliott was 20 provided the reference in -- in Ms. Jai's notes regarding 21 new evidence of archaeological evidence and he indicated 22 that he would not have said that there was any new 23 evidence of a burial ground as he wasn't aware of any. 24 He indicated that he may have been 25 referring to the 1972 Hamelin (phonetic) study of the
181 Park and that his comment must have been misunderstood. 2 And I'm wondering is it possible that you 3 misunderstood his comment? 4 A: I -- 5 MR. DONALD WORME: Commissioner, I don't 6 think this Witness testified that she knew Dan Elliott 7 that -- or knew of him making a statement. 8 COMMISSIONER SIDNEY LINDEN: No, but she 9 wrote something in her notes and your asking her about 10 what she wrote in her notes. 11 MS. ANNA PERSCHY: Precisely, yes. 12 COMMISSIONER SIDNEY LINDEN: Yes, all 13 right. 14 THE WITNESS: So, my recollection is as 15 is reflected in my notes that someone from the Ministry 16 of Natural Resources made a comment that new 17 archaeological evidence may have been obtained. 18 My, sort of, independent recollection is 19 that -- that the further discussion of that was that -- 20 that this was -- it wasn't certain, it wasn't clear 21 evidence, but there was something that was known of that 22 needed to be further looked into to see whether or not 23 there was anything to it. It hadn't been analysed or 24 assessed. 25
191 CONTINUED BY MS. ANNA PERSCHY: 2 Q: Right. And with respect to this new 3 evidence, did you have any further understanding of what 4 it was? 5 A: No. I mean, that's why for -- later 6 in the meeting I -- I had made the -- or, sort of, made 7 the comment that if we had some obligations under the 8 Cemeteries Act with respect to a burial ground, then we 9 ought to fulfill them, so we needed to, sort of, look 10 into this more. 11 Q: And I believe you testified that, in 12 any event, even if there were a burial ground, you knew 13 that that didn't create a legal right to -- to occupy the 14 Park? 15 A: It didn't create a legal right to 16 title to the Park, that's for sure. 17 18 (BRIEF PAUSE) 19 20 Q: And you may -- you testified that 21 there was mention at the meeting of looking into the 22 issue of the Province's rights and responsibilities if 23 there were an Aboriginal burial site, and you just made 24 reference to that again. 25 I anticipate that the evidence of Ms.
201 Hutton will be that she asked at the meeting that someone 2 find out the process for dealing with the burial site 3 issue. 4 Do you recall somebody making -- making 5 that request, that that be looked into? 6 A: Yes. And, indeed, it was. So 7 there's -- a memo by David Carson provided at the next 8 meeting, the next day. 9 Q: You didn't know Ms. Hutton before the 10 meeting on September 5th, correct? 11 A: I had met her on a couple of other 12 occasions at -- not at Interministerial meetings but at 13 other briefings. 14 Q: Did you know what her experience was 15 prior to her current position -- then current position? 16 A: No. 17 Q: And I take it you didn't know what 18 her role or specific responsibilities were within the 19 Premier's office? 20 A: No. I understood that she was the 21 spokesperson for the Premier, she was political staff to 22 the Premier; that was my understanding of her role. 23 Q: But, beyond that you didn't -- you 24 didn't have any further information with respect to her 25 role and responsibilities?
211 A: I -- I had never seen her job 2 description, no. 3 4 (BRIEF PAUSE) 5 6 Q: If you could just turn back, sorry, 7 to your notes of September 5th for a moment. There's a 8 reference at, I believe it's page 4 of the notes, while 9 you're getting the update and you mentioned it in your 10 testimony yesterday. It's a reference to a London Free 11 Press article, and it's the bottom of page 4 of the 12 notes. 13 A: Yes. 14 Q: And I was wondering if you could turn 15 to one of the other documents that I provided to you in 16 the vanilla folder, and it's an article entitled, 17 Ipperwash Park Seized by Natives. And it's an Inquiry 18 Document Number 1003741. 19 And there's a reference that's similar to 20 the reference in your notes on the right-hand side of the 21 article with respect to a native with the breakaway 22 Stoney Point Band who asked not to be named, said, 23 Sunday's actions to take the Park was planned. And he 24 said there was a confrontation with the OPP in the 25 takeover and, We almost had a riot, he said. And that's
221 similar to the notations in your -- in your notes. 2 And I'm wondering, is this the article 3 that your notes refer to? 4 A: I wasn't actually shown the article. 5 Q: Okay. 6 A: We were just advised at the meeting 7 that there was some media coverage and that was the gist 8 of it. 9 Q: All right. Now, your notes refer to 10 a question, and I think you referred to it yesterday in 11 your testimony, following the update and some discussion 12 of an injunction, there was a question raised: What is 13 the tolerance level of the Government if there is an 14 escalation? 15 Do you recall that question being asked? 16 A: Yes. 17 Q: And -- and we've heard evidence that 18 Ms. Hutton didn't make any comments prior to this 19 question being raised. 20 I take it that's consistent with your 21 recollection? 22 A: Generally, yes. 23 Q: We've heard evidence at this Inquiry 24 that representatives from MNR expressed some different 25 views and that some of the representatives of MNR, on the
231 ground expressed some concerns regarding the situation. 2 Is that consistent with your recollection? 3 A: I'm not -- I'm not sure I understand 4 which -- what concerns -- 5 Q: Just -- just generally, do you recall 6 concerns being expressed by some of the MNR people on the 7 ground? 8 A: Sure, MNR people were concerned about 9 the situation. Everybody was concerned about the 10 situation. 11 Q: And we've heard evidence at this 12 Inquiry that other than a reference to an injunction, Ms. 13 Hutton didn't specify a particular course of action. 14 And I take it that's consistent with your 15 recollection? 16 A: Yes. 17 Q: Now, there was a discussion at the 18 meeting on September 5th with respect to options and you 19 listed a number of statutes and an injunction at the 20 meeting, correct? 21 A: Yes. 22 Q: And there was a decision at this 23 meeting to strike a legal subcommittee to analyse these 24 statutes and the injunction and report back at the next 25 meeting?
241 A: It's probably a slightly more formal 2 summary of it. So -- 3 Q: But -- but -- but a number of -- a 4 number of the lawyers were asked to get together to -- to 5 conduct a further review. 6 A: Yes. It was primarily the job of Tim 7 McCabe and myself with -- with input from ONAS lawyers or 8 MNR lawyers as appropriate and the Crown Law Criminal 9 counsel. 10 Q: Hmm hmm. So, there was no detailed 11 review of the statutes and how they might apply to the 12 situation at the September 5th meeting, that -- that was 13 the work of the subcommittee following the meeting? 14 A: That's right. 15 Q: And at the meet -- 16 A: We -- well, actually to clarify that, 17 my -- my recollection is that I -- that I had actually 18 had discussions with Tim McCabe. And I -- and I believe 19 I had actually talked to Scott Hutchison the criminal 20 lawyer in advance of the September 5th meetings. 21 It didn't happen until later in the 22 morning, in anticipation of -- of need to provide some 23 preliminary advice about what our options were. So, you 24 know, there hadn't been detailed analysis at that point, 25 but I was speaking to people much more senior than I who
251 knew some of those statutes like the back of their hand. 2 So -- so, there was some -- there had been 3 some preliminary assessment. These -- these weren't just 4 pulled out of a hat. 5 Q: So, when you referred to some of 6 these statutes for instance, this was as a result of some 7 of the prior communications that you'd had both with Tim 8 McCabe and Scott Hutchison? 9 A: Yes and my own knowledge of them, 10 yeah. 11 Q: And at the meeting on September 5th, 12 I take it that none of the -- none of the lawyers who 13 were present provided, sort of, further explanation or 14 advice regarding what might be the Government's legal 15 rights as a property owner beyond the discussion of these 16 -- of these -- of these statutes and the reference to the 17 injunction? 18 A: Well -- well, in general terms, I 19 guess, that's right although that encompasses a fair 20 amount of discussion. 21 Q: Now, Ms. Jai testified that she 22 provided some briefings to the new government in the 23 summer of 1995, and I was wondering if you could turn to 24 one of the documents that I provided to you previously. 25 This is Document Number 3001721.
261 (BRIEF PAUSE) 2 3 Q: And this is the memorandum to Rita 4 Burak dated August 10th. And as I mentioned to 5 Commission counsel, you didn't need to review the entire 6 document. I was interested, if you could take a look at 7 -- there's a numbering system, it's page 10 and 8 following. 9 A: Yes. 10 Q: And there's a brief overview there of 11 the law of a Province and Aboriginal peoples and Ms. Jai 12 had testified that she had used these briefing materials. 13 And I just wanted to find out from you if 14 this overview is generally consistent with your 15 understanding of the law as of August or September of 16 1995? 17 A: Yes. My recollection is that -- and, 18 as mentioned yesterday, I was involved in a -- in a 19 briefing that -- that included Guy Giorno and -- and 20 others, and the cover sheet of this makes it clear that 21 this is -- clear to me anyway, that this is the -- the 22 briefing -- some of the briefing material that was 23 prepared as a result of that meeting. 24 And I recall being involved in the 25 preparation of these materials and in particular this
271 part of it, sort of. 2 Q: If I could turn now to the meeting of 3 September 6. Ron Fox testified that his sense, on the 4 morning of September 6, was that the situation at the 5 Park was escalating, getting worse, and that that would 6 have been obvious from his update to the Committee. 7 And do you recall that that was your sense 8 at the meeting from his update? 9 A: Yes. 10 Q: And if you could turn to Ms. 11 Hipfner's notes of September 6, and those are Document 12 Number 1011784. 13 A: These -- the handwritten notes, 14 they're in the package you gave to me? 15 Q: Yes. 16 A: Okay. 17 Q: And there's an Inquiry Document 18 Number in the top left-hand corner. 19 A: Yes. 20 21 (BRIEF PAUSE) 22 23 Q: And there's a reference on page 1 to 24 a comment that Ms. Hipfner attributed to Peter Allen, and 25 the comment is:
281 "Term negotiate was used, police 2 context but we shouldn't use term 3 negotiate at all because denotes 4 certain things that are not happening, 5 will not happen." 6 Do you recall Mr. Allen making a comment 7 along these lines? 8 A: I don't recall the specifics of that 9 comment but it's certainly consistent with my general 10 recollection. 11 Q: And I believe you testified yesterday 12 that you understood that the mandate of the 13 Interministerial Committee was not to get into 14 substantive negotiations while a blockade or an 15 occupation was ongoing? 16 A: That's right. 17 Q: Now, you gave some testimony 18 yesterday regarding your recollection of a comment that 19 you had attributed to Ms. Hutton, and which is reflected 20 in your notes. 21 22 (BRIEF PAUSE) 23 24 Q: And Mr. Downard asked you some 25 questions about that, and I don't want to tread on -- on
291 the same ground, but there's the reference: 2 "Premier's office doesn't want to be 3 seen to be working with Indians at 4 all." 5 COMMISSIONER SIDNEY LINDEN: Is this the 6 September 5th of 6th meeting? 7 8 CONTINUED BY MS. ANNA PERSCHY: 9 Q: The 6th meeting. And I anticipate 10 that Ms. Hutton will testify that she doesn't and didn't 11 in '95 use the term 'Indians' to refer to First Nations 12 people. 13 And -- and I suggest that your notes 14 reflect the summary of what you understood rather than 15 what was actually said? 16 A: My -- my best recollection is that 17 that's a verbatim quote. 18 Q: And I take it you didn't ask Ms. 19 Hutton what she meant or what her concern was? 20 A: No, not at the time. 21 Q: And I believe you testified that on 22 September 6, '95, the Interministerial Committee 23 recommended that the Government proceed with an 24 injunction as soon as possible. Is that -- 25 A: Is --
301 Q: Sorry. On September the 6th, the 2 recommendation of the Committee was that the Government 3 proceed with an injunction as soon as possible? 4 A: Yes. 5 Q: And I believe you testified that you 6 anticipated that the Government would take legal action 7 of some kind in that you were making notes to yourself, 8 even during the meeting of September the 5th in -- 9 A: I was at those meetings -- 10 Q: -- anticipation of that? 11 A: Well, I was at those meetings as the 12 litigator. So, whenever I was at those meetings, I was 13 making notes to myself thinking if we're having 14 litigation -- if litigation arises out of this, what are 15 the things I need to deal with. 16 Q: Fair enough. And I believe I 17 understood that you began working on injunction materials 18 on September 5th; is that right? 19 A: Yes. 20 Q: And we've heard some evidence that 21 prior to the occupation that OPP and MNR had discussed 22 the government bringing an injunction, in the event that 23 there was an occupation of the Park, and I'm wondering, 24 do you have any information regarding whether any work 25 was done to prepare any materials in anticipation of an
311 injunction, prior to the work that you did on September 2 5th? 3 A: You mean, was any injunction material 4 produced before the 5th of September? 5 Q: Any -- any work done in regards to 6 that? 7 A: Back around -- well, back in '93 8 there had been some -- some sort of initial discussions 9 about it. I don't recall any -- certainly not preparing 10 any Motion materials or anything. 11 Q: But you're not aware of anything in 12 1995? 13 A: No. 14 Q: Okay. Now, you gave some evidence 15 yesterday regarding Ms. Hunt, who was the executive 16 assistant to the Solicitor General making a comment about 17 the protocol of the Solicitor General. 18 I was wondering if you could turn back to 19 Ms. Hipfner's notes of September 6th, which again are 20 document 1011784. 21 And at page 3... 22 23 (BRIEF PAUSE) 24 25 Q: Under the heading, Direction From
321 Ministers, there's a number of references. And there's 2 the name, "Sturdy" and then it's crossed out and there's 3 the comment: 4 "Also question of what ministers can 5 say if OPP are handling this, 6 especially now that charges have been 7 laid." 8 And then a reference, it appears to be 9 from Dave Moran: 10 "Can't have OPP speak on --on behalf of 11 government." 12 And then below that, there's the reference 13 to Ms. Hunt: 14 "Runciman's reservation comes from fact 15 that Solicitor General's protocol is 16 not to be involved in day-to-day 17 operations." 18 And is that consistent with your 19 recollection that that's when that -- that comment was 20 made by Ms. Hunt? 21 A: Yes. 22 Q: And if you could turn to Ms. Jai's 23 notes which I believe are at Tab 12 of Commission 24 Counsel's documents. 25
331 (BRIEF PAUSE) 2 3 Q: And if you could look at, using the 4 numbering system that's in the notes, it's page 6. And 5 right at the top of the page there's the notation, "Local 6 spokesperson to the OPP"; do you have that page? 7 A: Yes. 8 Q: The notes indicate: 9 "Deb: Feels MNR as property owners can 10 ask OPP to remove people. 11 Scott: You can ask them to remove 12 them, you can't insist or demand that 13 they be removed. 14 Deb: Has MNR asked OPP to remove 15 them? They could be formally requested 16 to do so but how and when they do it is 17 up to them. Could have that 18 communication message. MNR has 19 formally asked that they remove them." 20 You don't have any notes on this point, 21 but I take it that's consistent with your recollection? 22 A: Yes, it is. 23 Q: And we've heard evidence that when 24 there were reports of automatic gunfire, Ms. Hutton at 25 the September 6th meeting requested that that be
341 confirmed. 2 Do you recall her asking for confirmation? 3 A: I don't recall her, specifically, 4 asking for confirmation. I certainly recall discussion 5 about the need for confirmation. 6 Q: And at some point during the meeting 7 there was a confirmation of gunfire though not that it 8 was automatic gunfire. 9 Is that consistent with your recollection? 10 A: Yes. I mean as you say that, I 11 believe that's right, that -- that I think that makes 12 sense. By the end of the meeting Ron Fox had actually 13 made contact and confirmed that there might have been 14 some gunfire. I guess that's right. 15 Q: And if I could have you turn to Tab 16 19 of Commission Counsel's documents which is P-551. 17 This is the motion record that was used on the 18 application for the injunction. 19 A: Yes. 20 Q: And -- just looking at the -- the 21 Notice of Motion, specifically paragraphs 10 and 11. 22 Paragraph 10 and 11 of the Notice of Motion, this is -- 23 this is P-551. 24 It appears that provisions of the Criminal 25 Code, the Public Lands Act, the Trespass to Property Act
351 and the Provincial Parks Act were all relied upon in 2 support of the application for the injunction; is that 3 right? 4 Those are all some of the statutes that 5 you relied upon? 6 A: Yes. As evidence of the illegal 7 nature of the -- of the occupation. 8 Q: And if you could turn to Tab 20 of 9 Commission Counsel's documents, this is the transcript of 10 the court proceedings, it's Document Number 3000504. I 11 believe it's been made P-737. 12 13 (BRIEF PAUSE) 14 15 Q: And if you could turn, using the 16 numbering system within the transcript to the bottom of 17 page 2, and there's -- there's an exchange between Mr. 18 McCabe and Mr. Justice Daudlin regarding the issue of 19 notice. 20 And Justice Daudlin indicated that he: 21 "Had been here..." 22 And I'm quoting now: 23 "...since Tuesday of this week much has 24 been said in the media in terms of this 25 and these events since that time. It
361 was being widely broadcast and indeed 2 being represented by representatives of 3 the OPP that the Government was indeed 4 seeking an injunction as early as 5 Tuesday. And you are telling me that 6 that decision was taken only 7 yesterday." 8 And do you recall Mr. Justice Daudlin 9 making comments in that regard? 10 A: Yes. 11 Q: And of course, the junction -- the 12 injunction was, of course, brought on September 7 which 13 was the Thursday, but do you have any information in 14 regards to any representations by the OPP or anyone from 15 government, that the Government would be seeking an 16 injunction as early as Tuesday, September 5th? 17 A: No, I don't have any personal 18 information about that, no. 19 Q: And Mr. Justice Daudlin indicated 20 that he was expecting that the Motion was going to be 21 made on Notice and we've heard evidence that the decision 22 to bring the injunction was -- was actually made on the 23 Wednesday. 24 But was it your impression, having been 25 there in person, that it was, in part, because of this
371 confusion about when the decision was made to bring the 2 injunction that there was an expectation that the Motion 3 was going to be brought on Notice? 4 Did -- do you have an impression? 5 A: I'm not following the question, 6 sorry. 7 Q: The question is simply that Mr. 8 Justice Daudlin, from -- from the transcript and from 9 your recollection, indicates that he had understood 10 earlier in the week that the Government had made a 11 decision to bring the injunction as early as Tuesday and 12 he was expecting that. 13 And my question to you, having been there 14 in person, is whether that misunderstanding, with respect 15 to that issue, may -- may have been one of the reasons 16 why there was an expectation that the Motion was going to 17 be brought on notice? 18 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 19 Twohig...? 20 MS. KIM TWOHIG: Mr. Commissioner, I'm 21 not sure this witness can answer a question about why Mr. 22 Justice Daudlin may have been -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MS. KIM TWOHIG: -- mistaken. 25 MS. ANNA PERSCHY: I'm simply asking as
381 to whether or not she had an impression from having been 2 there in person. 3 COMMISSIONER SIDNEY LINDEN: No, I don't 4 think that you're asking her a question that she can 5 answer. 6 7 CONTINUED BY MS. ANNA PERSCHY: 8 Q: Could you turn to, I believe it's 9 page 40, of the transcript? 10 11 (BRIEF PAUSE) 12 13 Q: There's a couple of references there 14 I wanted to take you to. One is at the bottom of page 40 15 and it's a reference to the Court, Mr. Justice Daudlin, 16 and he indicates: 17 "You will agree with me, I take it, 18 that the ministers in both of them and 19 the ministries in both of them are 20 currently possessed of a number of 21 mechanisms and ways by which they 22 could, without the benefit of an 23 injunction, enforce the cessation of 24 the occupation of the Park." 25 And then again at page 41, the second
391 reference to -- to the Court, the last sentence: 2 "I take it by that, that it goes 3 without saying that there are other 4 avenues that can be pursued, pursuant 5 to statues." 6 Did you see those two (2) references? 7 A: Yes, I see them. 8 Q: And do you recall those comments and 9 questions being made? 10 A: Yes. I mean, I wouldn't have 11 independently been able to run them off, but when I read 12 it, it certainly -- I certainly recall it. 13 Q: And could you tell us what you 14 understood Mr. Justice Daudlin was saying in regards to 15 that? 16 COMMISSIONER SIDNEY LINDEN: Again, I'm 17 not sure it's -- Mr. -- well, Mr. McCabe responds in the 18 transcript. There's an exchange there, if you want to 19 read the whole thing. 20 Right after the question that you just 21 read, I take it that there are other avenues. Mr. McCabe 22 said, 23 "So, there are -- there are charges 24 that could be laid. They could be in 25 effect and Provincial Offences and so
401 on, that's correct, is it?" 2 There's a discussion of it there. 3 MS. ANNA PERSCHY: Yes, and that's -- 4 that's the exchange between -- between -- 5 COMMISSIONER SIDNEY LINDEN: Between Mr. 6 McCabe -- 7 MS. ANNA PERSCHY: -- Mr. McCabe and Mr. 8 Justice Daudlin. I was simply asking this Witness as to 9 -- as to her understanding since she was also present. 10 11 CONTINUED BY MS. ANNA PERSCHY: 12 Q: Was that consistent with your 13 understanding that that's what Mr. Justice Daudlin was 14 referring to, or did you have an understanding? 15 A: It's not a -- 16 COMMISSIONER SIDNEY LINDEN: Again, I 17 don't understand how she can be asked any more about what 18 Mr. Justice Daudlin may or may not have meant or said. 19 I mean, what he said is in the transcript. 20 21 CONTINUED BY MS. ANNA PERSCHY: 22 Q: I take it you were present for all of 23 these submissions that were made by Mr. McCabe? 24 You were present throughout the Motion, I 25 take it?
411 A: Yes. 2 Q: And as I understand it, you didn't 3 make any submissions yourself? 4 A: That's correct. 5 Q: You'll be relieved to hear those are 6 all of my questions. Thank you very much. 7 COMMISSIONER SIDNEY LINDEN: Thank you, 8 Ms. Perschy. I believe Ms. Tuck-Jackson is up next. 9 Just give Ms. Perschy a chance to gather her materials. 10 It's not the easiest place in the world to set everything 11 out. Thank you. It's quite... 12 13 (BRIEF PAUSE) 14 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 MS. ANNA PERSCHY: Thank you, 17 Commissioner. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 Yes, Ms. -- oh, not quite. 20 Yes, Ms. Tuck-Jackson? 21 MS. ANDREA TUCK-JACKSON: Good morning, 22 Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Good 24 morning. 25
421 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 2 Q: And good morning, Dr. Christie. 3 A: Good morning. 4 Q: My name is Andrea Tuck-Jackson and 5 I'm going to ask you some questions on behalf of the OPP. 6 I'd like to begin, if I may, with your 7 August 2nd notes, which appear at Tab 6 of your binder, 8 they've been marked as Exhibit P-735. And I noted when I 9 reviewed them that you have sourced some of the 10 information contained in them to then-Inspector John 11 Carson. 12 A: In -- sorry. I believe you. I -- 13 I'm looking. 14 Q: I can take you to the specific 15 passages but to be quite honest with you, I'm not 16 interested in the substance of what you've written. I 17 want to clarify one point. Excuse me. 18 You'd agree with me that John Carson was 19 not a participant in that meeting? 20 A: I don't think he was, no. 21 Q: If it assists you in that regard, I 22 can take you to the actual minutes of the meeting. 23 They're at Tab 5 of your materials and they've been 24 marked as Exhibit P-506. 25 And if you look at the second page in,
431 you'll see a collection of the attendees of the meeting, 2 and you'll agree with me that John Carson's name does not 3 appear as someone who attended in person or by way of 4 conference call? 5 A: Correct. And that -- and that's my 6 recollection, that was -- that he wasn't there -- 7 Q: Fair enough. That's all I wanted to 8 clarify. Thank you. 9 I want to go forward in time to your 10 account of the meetings of September the 5th and 11 September the 6th. And I'm particularly interested in 12 your observations of then-Inspector Ron Fox's conduct at 13 those meetings. 14 And in particular I'm going to suggest to 15 you that Ron Fox, during the course of those two (2) 16 meetings, left you with an impression that he was a very 17 level-headed individual? 18 A: Yes, he did. 19 Q: That he was approaching the issues 20 that were under discussion at those meetings in a very 21 conscientious manner? 22 A: Yes. 23 Q: And also that he was approaching the 24 issues in a very calm manner? 25 A: Yes. I can say that in my sense, and
441 I recall at least one (1) of those meetings sitting 2 physically very close to -- to Ron and walk -- and 3 talking to him after the meetings, but my -- so my sense 4 was that he was conducting himself at the meeting very 5 calmly despite my impression that he was very frustrated. 6 Q: I understand. 7 A: So, I was even more struck by how he 8 was managing to maintain his calm despite the fact that 9 my impression was -- I can't speak for him but that my 10 impression was that he was quite frustrated some -- with 11 some things. 12 Q: I understand. And -- and I am only 13 interested in your impressions. You've told us, and 14 you've given an example to us, that he openly disagreed 15 with some of the views that were expressed by Ms. Hutton? 16 A: Yes. 17 Q: And yesterday you used the example of 18 her assertion that Aboriginal and non-Aboriginal 19 individuals were to be treated the same? 20 A: Yes. 21 Q: All right. And -- and you've 22 explained to us that he took issue with that and tried to 23 explain to her why that was not the case? 24 A: Yes. 25 Q: And I trust, sir -- ma'am, rather,
451 that he left you with the impression that he was no way 2 inhibited by Ms. Hutton? 3 A: I -- I don't think I can really 4 comment on -- on -- I don't really know if he was feeling 5 inhibited or not. I really don't. 6 Q: I was simply asking you again your 7 impression, the fact that he was prepared to stand up to 8 her and take issue with some of her positions. I'm going 9 to suggest -- suggest it to you that he wasn't inhibited 10 by her? 11 A: I really don't know. I mean, I do 12 think he was holding back. 13 Q: Okay. I understand. I'm also going 14 to suggest to you that during the course of the meeting 15 he advocated three (3) key positions on behalf of the OPP 16 and I'm going to suggest to you that he advocated a slow 17 and cautious approach to the problem in general. 18 A: Yes, that's fair. 19 Q: I'm going to suggest to you secondly, 20 that he advocated ongoing and communication -- ongoing 21 communication and negotiation with the occupiers in order 22 to diffuse the situation. 23 A: That's fair. 24 Q: And I'm also going to suggest to you, 25 Dr. Christie, that he made it very clear that apart from
461 dealing with very specific instances that might attract 2 intervention under the Criminal Code, the police did not 3 want to move upon the Park occupiers in the absence of a 4 civil injunction. 5 A: I think that's a little less clear. 6 In -- certainly the initial -- my -- my recollection of 7 the initial -- well maybe it's not -- maybe it's not 8 unclear actually. So, my recollection in the initial 9 situation is that they didn't necessarily feel an 10 injunction was -- was needed at that point. 11 Q: Right. 12 A: But -- but, I guess if you want to 13 say, did they want to move forward without an injunction, 14 I don't recall him specifically making that comment, but 15 that's consistent with the police operations commonly at 16 these kinds of -- at blockades and that sort of thing. 17 The police often like to have an injunction in their 18 hand. 19 Q: Yes. And I noted your -- your 20 evidence this morning when -- when My Friend, Ms. 21 Perschy, took you to the minutes back to the June 1993 22 meeting and you indicated it wasn't surprising that Doug 23 Scott was taking the position that the police wanted the 24 Military to have an injunction in place before the police 25 were going to do anything in respect to the occupiers.
471 A: Right. 2 Q: And again, I'm going to suggest to 3 you that -- that what Ron Fox was conveying, that the OPP 4 preferred an injunction before they were going to move on 5 the occupiers? 6 A: Yes. I think that's fair. 7 Q: All right. And I'm also going to 8 suggest to you, Dr. Christie, that at no time during 9 either of those meetings did Ron Fox either say or do 10 anything that suggested he was seeking direction from the 11 Committee on police operational matters. 12 A: Absolutely. 13 Q: And further I'm going to suggest to 14 you that there was nothing by his words or his actions 15 that suggested he was taking direction from the Committee 16 on police operational matters. 17 A: That's correct. 18 Q: And indeed, as you indicated 19 yesterday, it was quite the contrary because he engaged, 20 as I understand it from your evidence, in a discussion, 21 along with others, with Ms. Hutton explaining to her, 22 that the police were -- enjoyed an arm's length 23 relationship with the Government and they could and would 24 not take direction from the Government on operational 25 matters.
481 A: Correct. 2 Q: Thank you. You told us yesterday 3 about some of the contact that you were witness to 4 between Mr. McCabe and you indicated it was Mark Wright. 5 A: Yes. Some police officers in the... 6 Q: Okay. And I wanted to clarify some 7 of the contact that -- that did occur. I don't want to 8 go into the substance of it but for example, I trust you 9 were aware that on the afternoon of the 6th that Mr. 10 McCabe was having some contact by telephone with 11 Inspector John Carson and you may not be aware of that. 12 A: Yeah. So, I know that he had had 13 contact with people -- my specific recollection is at the 14 end of the evening his contact with -- was with Sergeant 15 Wright. 16 Q: We're going to get to that in a 17 minute. 18 A: That he -- that he had telephone 19 conversations earlier in the day. I knew that he had had 20 telephone conversations earlier in the day and, in fact, 21 last night when I was reviewing some notes that were 22 given to me by somebody, I was reminded by it that in 23 fact he was earlier in the day talking to Inspector 24 Carson. 25 Q: All right.
491 A: And then there was a discussion about 2 what -- who should be in court the next day. 3 Q: Right. And -- and I anticipate that 4 we're going to hear that during -- during a conversation 5 that occurred shortly after 4:00 p.m., it was determined 6 that it was going to be then-Detective Sergeant Mark 7 Wright who would be attending on behalf of the OPP. 8 Does that assist your recollection at all? 9 A: Yes. 10 Q: Okay. Now I also anticipate we're 11 going to hear that there was a telephone call between Mr. 12 McCabe and a gentleman by the name of Dale Linton at 13 around twenty-five to 8:00 on the night of the 6th. 14 Does that ring a bell? 15 A: As I say, I know that he spoke 16 several times to police officers and I know the final one 17 was with Detective Wright and I honestly am not sure 18 specifically who. 19 Q: All right. 20 A: I'm sure that will be clear at some 21 point. 22 Q: It will. I could assure you it will. 23 This morning I put a document, I think that thick file 24 folder -- oh, you got it. Perhaps I could hand up a copy 25 to Commissioner Linden, please, and for the benefit of My
501 Friends, it's Document 6000043. 2 You told us yesterday that you faxed some 3 documentation to the OPP in an effort to have it served 4 upon the occupiers? 5 A: Yes. 6 Q: And this appears to be a fax cover 7 sheet. It's dated September the 6th, 1995. There's a 8 time on it of 7:47 p.m. Is that your handwriting? 9 A: Yes, it is. 10 Q: All right. And you'll notice that 11 it's sent to the attention of Inspector Dale Linton? 12 A: Yes. 13 Q: All right. Not that it makes a great 14 deal of difference but, indeed, the materials weren't 15 initially sent to Mark Wright. They were sent, it would 16 appear, to Dale Linton? 17 A: That's correct. 18 Q: All right, and we'll hear some more 19 about that tomorrow from -- from Mr. McCabe. 20 I wanted to move on to the morning of 21 September the 7th, and I trust that you first met Mark 22 Wright on that morning? 23 A: Yes. 24 Q: All right. If I could take you, 25 please, to Tab 20 of your binder. It's a transcript of
511 the proceedings; it's been marked as Exhibit P-737. And 2 in particular, I want to take you to page 21. 3 4 (BRIEF PAUSE) 5 6 Q: And I read with interest, and I'm not 7 going to burden you with why, at the moment, but I read 8 with interest at the top of the page that, during the 9 course of his testimony, Detective Sergeant Wright 10 revealed that as of the time of his testimony, which I 11 presume would have been at some point mid-morning on 12 September the 7th, by that point he had been up since 13 5:00 a.m. the previous day. 14 Do you recall hearing that evidence? 15 A: Yes. 16 Q: And further, I noted, at page 47, at 17 around line 20 of the transcript that His Honour, Justice 18 Daudlin also took the time to note on the record the 19 following: 20 "I'm fully cognizant of the fact that 21 he [referring to Detective Sergeant 22 Wright] has been thirty (30) hours plus 23 without sleep." 24 And again, I trust you were present when 25 that comment was made?
521 A: Yes. 2 Q: And I also trust that from your own 3 observation of Officer Wright, that he appeared quite 4 exhausted? 5 A: He appeared quite agitated. 6 Q: Okay. 7 A: So, it was -- I didn't -- I wouldn't 8 notice fatigue, because his -- he was wired, if you will. 9 Q: Wired, all right, which no doubt from 10 your training now that you've become a physician, is 11 consistent, arguably, with someone who is suffering from 12 exhaustion? 13 A: Absolutely. 14 Q: Thank you. 15 16 (BRIEF PAUSE) 17 18 Q: One final point. If I could take 19 you, please, to Tab 28 of your binder. This is a 20 transcription of the comments that Mr. McCabe made before 21 the Court on September the 11th. They've been marked as 22 P-743. 23 24 (BRIEF PAUSE) 25
531 Q: And as you indicated yesterday, the 2 reason that the Province was prepared to withdraw the 3 Motion, was out of respect for the funeral of Mr. George. 4 That's the way I heard it yesterday and I 5 wanted to clarify that a little, because I think it was a 6 little more than just that. 7 A: Sure. I'm not really in a position 8 to tell you why the Province decided to withdraw. I 9 mean, I was taking instructions with Tim McCabe from a 10 client, so I -- if I -- if I said that it -- that they 11 made the decision because of -- of the death of Dudley -- 12 Dudley George, I'm -- there might be more to it. 13 I'm not -- I really am not the person to 14 ask about that. That's -- that's fine. 15 Q: All right. And that's, frankly, what 16 I wanted to clarify. Were you present for any of the 17 conversations that Mr. McCabe may have had, for example, 18 with a senior member of the OPP on this issue? 19 A: I'm not sure about the senior member 20 of the OPP, I was certainly present when Tim was speaking 21 to various members of -- of government about the -- about 22 the issue. 23 Q: Does the name Chief Superintendent 24 Chris Coles ring a bell, for example? 25 A: Yes.
541 Q: All right. And did it become 2 apparent to you from the conversation that the request 3 was actually coming from the OPP to have the motion 4 withdrawn? 5 A: I don't know that. 6 Q: All right. 7 A: Yeah. 8 Q: Perhaps then I'm going to save that 9 line of questioning for Mr. McCabe. Dr. Christie, thank 10 you very much for your time. 11 A: Thank you. 12 Q: Oh, yes. I'm sorry, My Friend, Mr. 13 Worme, reminds me that I did not make the fax cover sheet 14 an exhibit. If it could be marked as the next exhibit, 15 please. 16 THE REGISTRAR: What was that document 17 number? 18 MS. ANDREA TUCK-JACKSON: I'm sorry, yes, 19 6000043. 20 COMMISSIONER SIDNEY LINDEN: Four (4) 21 zeros. 22 THE REGISTRAR: Thank you. P-746, Your 23 Honour. 24 25 --- EXHIBIT NO. P-746: Document Number 6000043. Fax
551 cover sheet to inspector 2 Linton OPP from E. 3 Christie/T. McCabe, 4 Sept.06/'95. 5 6 MS. ANDREA TUCK-JACKSON: Thank you, very 7 much. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 Yes, I think Counsel on behalf of Municipality of Lambton 10 Shores is next. 11 12 (BRIEF PAUSE) 13 14 COMMISSIONER SIDNEY LINDEN: Good 15 morning. 16 MS. JANET CLERMONT: Commissioner. 17 COMMISSIONER SIDNEY LINDEN: Good 18 morning. 19 20 CROSS-EXAMINATION BY MS. JANET CLERMONT: 21 Q: Good morning, Dr. Christie. 22 A: Good morning. 23 Q: My name is Janet Clermont and I'm one 24 of the lawyers that represents the Municipality of 25 Lambton Shores, which was formerly Bosanquet Township.
561 And my questions are -- are really limited to one of the 2 references in the August 8th, 1995 notes from the 3 Minister's briefing. And that's at your Tab 6, Document 4 Number 1011749, Exhibit 735. 5 And if you turn to page 1, two thirds 6 (2/3's) down the page; do you have it there? 7 A: Yes. 8 Q: You'll see the reference: 9 "DM [equals] should work on 10 communication strategy." 11 A: Yes. 12 Q: And the -- the 'DM' is in reference 13 to the Deputy Minister? 14 A: Yes. 15 Q: And that's the Deputy Minister of the 16 Attorney General; is that correct? 17 A: Yes. 18 Q: And at the time that was Larry Taman; 19 is that -- 20 A: Yes. 21 Q: -- is that correct? All right. And 22 you indicated in-chief that -- that those were 23 instructions by the Deputy Minister? 24 A: Yes. That's a comment made by the -- 25 Q: All right. And --
571 A: -- Deputy Minister. I don't know if 2 there -- who they were instructions to, but -- 3 Q: Okay. That -- that was my question. 4 A: Yeah. 5 Q: So, you're not sure who they were 6 directed towards? 7 A: Well -- yeah. 8 Q: All right. And do you recall any -- 9 any other details surrounding the context of that 10 comment? 11 A: Well, the -- the context is sort of 12 laid out in the notes. It's -- 13 Q: And -- and that being the takeover of 14 the -- the Base and the potential takeover of the 15 Provincial Park? Is -- 16 A: Yes. 17 Q: -- that your understanding? Okay. 18 And was there any indication as to who or what parties 19 would be included in the communication strategy? 20 A: Who or what parties -- 21 Q: What parties, what government bodies 22 or ministries would be included in this communication 23 strategy? 24 A: Well -- I mean, I don't have a 25 specific recollection of the Deputy asking about a
581 communication strategy for -- on that day, but -- but I 2 can tell you that in -- that it's entirely consistent 3 with what would commonly happen in this sort of a 4 situation. 5 We told the Minister and the Deputies 6 there about what we know about a -- about a situation 7 that's going on and the Deputy says, We need to work on a 8 communication strategy. So, given that it's the Attorney 9 -- we're -- we're dealing here with the Attorney General 10 Ministry. 11 Q: Right. 12 A: So, this isn't the Interministerial 13 Committee. So, it would have been -- it would have been 14 an -- like, an internal. 15 Q: An internal communication strategy. 16 A: Although it -- yeah. And it may have 17 -- certainly, a communication strategy would -- we would 18 have likely been in consultation with the relevant 19 ministries and -- and Ontario Native Affairs 20 Secretariate, for example, to see what their 21 communication strategies were. 22 Q: Okay. 23 A: But -- but I -- I can't tell you 24 exactly who it was. 25 Q: Okay. And then just, specifically,
591 do you recall whether it was anticipated that the 2 municipality, then-Bosanquet Township, would be included 3 in any communication strategy? 4 A: I'm not sure what you mean by 5 "included". Would they have been consulted about what 6 the Government should say about this? 7 Q: No. Whether -- whether it was 8 anticipated that there would be any type of communication 9 with the municipality surrounding the -- surrounding the 10 potential takeover of the Park, if they had been 11 consulted? 12 A: I don't recall specifically with -- 13 Q: Was that anticipated? 14 A: -- with respect to this briefing. I 15 do recall -- and -- and I honestly can't tell you whether 16 it was August or -- or -- I can't tell you whether it was 17 August or September, but certainly there was discussion 18 about talking to the Township. 19 I believe in August, there may have been 20 some discussion about talking to the township, but I'm 21 not sure. I can't remember if it was September. 22 I certainly know there was talk about -- 23 abut communicating with the Township about what the 24 Township's view on things were. And certainly by the 25 September meetings we knew what the Township's view or at
601 least we had reports on it. 2 Q: Okay. And that was from the MNR 3 staff who were on the ground, is that -- 4 A: Yes. 5 Q: -- is that correct? Okay, thank you. 6 Those are my questions. 7 A: Thank you. 8 COMMISSIONER SIDNEY LINDEN: Thank you. 9 I think you're up now, but I guess we could take a 10 morning break now. 11 Would that suit you to take the break 12 before we start? 13 Okay, let's take our morning break now and 14 then we'll hear from Mr. Klippenstein. 15 THE REGISTRAR: This Inquiry will recess 16 for fifteen (15) minutes. 17 18 --- Upon recessing at 10:08 a.m. 19 --- Upon resuming at 10:38 a.m. 20 21 THE REGISTRAR: This Inquiry is now 22 resumed. Please be seated. 23 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 24 Klippenstein? 25 MR. MURRAY KLIPPENSTEIN Thank you,
611 Commissioner. 2 3 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN 4 Q: Good morning, Dr. Christie. 5 A: Good morning. 6 Q: As you may know, I'm one of the 7 Counsel for the Estate and family of Dudley George. 8 We've heard evidence from various 9 witnesses that in September or on September 4th and 5th 10 of 1995, the then-Premier Harris wanted to have the 11 native protesters out of the Ipperwash Park. 12 Is that consistent with what you saw and 13 heard? 14 A: So, in -- well, I guess what I can 15 tell you is that the Premier's representative at the 16 meeting of the 5th and of the 6th certainly made 17 statements to the effect that the Premier wanted the -- 18 the occupiers out of the Park, yes. 19 Q: Right. And we've heard evidence that 20 the Premier wanted the protesters out of the Park as soon 21 as possible. 22 Is that also consistent with what saw and 23 heard? 24 A: Yes. 25 Q: And we've heard evidence from Ms.
621 Julie Jai, based on her notes, that the Premier's 2 representative, Deb Hutton, said in one of the meetings 3 that the Premier wanted them out in a day or two (2). 4 A: Yes. 5 Q: Is that consistent with what you saw 6 and heard? 7 A: Yes. 8 Q: And according to a handwritten note 9 of Larry Taman, the Deputy Minister, the Premier desired 10 removal of the protesters within twenty-four (24) hours. 11 Is that also consistent with what you saw 12 and heard overall? 13 A: I'm not familiar with that note or -- 14 Q: Okay. 15 A: -- or -- 16 Q: I'll take you to that in a few 17 minutes. 18 And is it fair to say that in the various 19 discussions that occurred at the IMC meeting and 20 elsewhere, that one assumption was that the civil 21 injunction was put forward as a way to do just that, in 22 other words, to get the protesters out of the Park the 23 way the Premier wished; is that fair? 24 In other words, the injunction -- 25 A: That --
631 Q: -- was -- was a way to implement 2 that. 3 A: Well, it -- as I -- as I think I 4 described yesterday, certainly the Committee had been 5 made aware of the fact that by virtue of obtaining the 6 injunction wasn't necessarily going to result in a -- in 7 the departure of the First nations people from the Park. 8 So, it certainly -- 9 Q: Right. Then it -- 10 A: -- it certainly seemed to be a tool. 11 It was certainly a tool in the -- in the -- in the group 12 of tools that -- that could be used to try and expedite 13 things as quickly as possible, for sure. 14 Q: Right. And I certainly want to ask 15 you about what you've just mentioned, but in that 16 context, the injunction was seen as a way to implement 17 the Premier's wishes, which was to -- to have the 18 protesters removed from the Park; is that fair? 19 A: Yes. 20 Q: And as you've just mentioned, there's 21 more to the story than just getting a Court Order for an 22 injunction. 23 A: Yes. 24 Q: I believe you mention in your 25 evidence that you explained to the Committee at one of
641 the points that when you get an injunction, you have to 2 do some follow-up; is that right? 3 A: Yes. 4 Q: And is it fair to say that there's 5 two (2) parts, conceptually; one is getting the Order for 6 an injunction and the second part is implementing it? 7 A: Sure. That's fair. 8 Q: And when we hear evidence that the 9 Premier wanted them out of the Park, merely having the 10 injunction doesn't accomplish that, there has to be an 11 implementation as well; is that fair? 12 A: Yes. 13 Q: I'd like to ask you a bit about the 14 timing of the injunction and later on I'll ask you about 15 the implementation issues related to the injunction. 16 But first on the timing of the injunction, 17 you mentioned something in your evidence that I found 18 interesting and that is the actions you took to attempt 19 to schedule an injunction in Toronto on the afternoon of 20 the 6th. I'd just like to ask you some questions about 21 that if I could. 22 A: Sure. 23 Q: As I understand the evidence, there 24 was no discussion or apparent consideration during the 25 IMC meeting of the 6th in the morning that an injunction
651 would be heard that afternoon in Toronto. That didn't 2 come up, is that fair? 3 A: I don't think it did. I don't have a 4 -- certainly the discussion about getting it just as 5 quickly as possible and whether that was -- 6 Q: Yeah. And in those -- in the notes 7 of the September 6th meeting on the morning, we see 8 repeatedly in many people's handwritten notes, a summary 9 of a description by Tim McCabe about an injunction and 10 then his bottomline which seem to be, best case Friday. 11 Do you remember that phrase, 'best case 12 Friday'? 13 A: Yes. 14 Q: And that if I -- that was put forward 15 and understood as his summary of what was best case for 16 timing ford an injunction I guess; is that right? 17 A: Yes. 18 Q: And then after that meeting on the 19 6th is when, for the first time, the specific idea of 20 having an injunction heard that very afternoon in Toronto 21 appeared; is that fair? 22 A: That's my recollection, yes. 23 Q: Right. And you mentioned that you'd 24 actually had a discussion with the then Deputy Minister 25 Larry Taman about that; is that right?
661 A: Yes. 2 Q: So, that must have happened after the 3 IMC meeting on the 6th, is that right? 4 A: That's my best recollection, yes. 5 Q: And do you -- I believe you said that 6 the IMC meeting finished somewhere around noon on the 7 6th; is that right? 8 A: I think -- I think it did. I think 9 it was a bit before noon but -- 10 Q: Okay. 11:30 or 12:00 or something 11 like that? 12 A: Yeah. I think the minutes indicate 13 when but I -- yeah. 14 Q: Okay. Not a whole lot hangs on the 15 exact minutes. And I was interested in your discussion 16 about meeting with Larry Taman. And you mentioned that 17 you thought it was in a hallway, right? 18 A: I -- yes, my -- so, my recollection 19 is -- is that the speci -- sort of the discussion with 20 him about or when he was saying to me describing sort of, 21 Can't you get it this afternoon? I think there are some 22 guidelines or -- or accommodation within the rules. I 23 don't think it's actually a rule but -- but process notes 24 in the rules that permit for that sort of thing. 25 That part of the discussion, my
671 recollection is just because it was an unusual discussion 2 and I have sort of funny recollection that it was -- 3 actually took place in a hallway. 4 I -- I believe it happened following or -- 5 or he may have been on his way to another meeting or we 6 may have been coming out of a meeting. I'm honestly not 7 sure, precisely, why it was in a hallway. 8 Q: Okay. We've heard some evidence that 9 there was a meeting in the Premier's dining room after 10 the IMC meeting on the morning of the 6th. In other 11 words the Premier's meeting happened after the IMC 12 meeting. 13 Were you aware on the 6th that there had 14 been such a meeting? 15 A: I certainly was aware on the 6th that 16 there was going to be or then -- had had been a meeting 17 of some sort. I don't know where, I don't know exactly 18 who, but certainly of higher level people naturally 19 coming out of our September 6th meeting because the 20 decisions had been made quickly. 21 Q: Okay. And we've heard evidence that 22 Mr. Taman participated in that -- in that Premier's 23 meeting. Do you know if your discussion in the hallway 24 occurred after Mr. Taman had attended at the Premier's 25 meeting?
681 A: I can't tell you that. 2 Q: Okay. Now, as a result of your 3 discussion with Mr. Taman, you made a call to the Toronto 4 trial coordinator to try and schedule a court injunction 5 hearing; is that right? 6 A: Yes. 7 Q: And I'm just trying to put together 8 some of the sequences here. You mentioned that Mr. 9 Taman, in that hallway discussion -- first of all, which 10 hallway, because we have a couple of meeting -- a couple 11 of buildings. 12 The Premier's meeting happened at the 13 Legislature, as I understand the evidence, and the IMC 14 meeting of the morning of the 6th happened at 595 Bay; is 15 that right, the atrium? 16 A: Yes. 17 Q: Okay. And so where did you go after 18 the IMC meeting on Bay Street? 19 A: 720 Bay Street. 20 Q: You went to 70 -- 720 -- 21 A: Our offices -- 22 Q: -- Bay Street, okay. Okay. 23 A: Crown Office civil was on the eighth 24 floor at 720 Bay. 25 Q: Okay. And is that, to your
691 recollection, where your discussion with Mr. Taman would 2 have happened, at 720 Bay. 3 A: So my best recollection is that 4 discussion would have happened on the eleventh floor, 5 which is where his office was on -- on -- at 720 Bay. 6 Q: Okay. And do you know what you were 7 doing on the eleventh floor? Was your office on the 8 eleventh floor? 9 A: No, no, mine was on the eighth. I 10 was going up -- 11 Q: Okay. 12 A: -- specific -- for -- for that 13 specific purpose to -- 14 Q: To talk to Larry Taman. 15 A: -- talk to him or to talk to him and 16 maybe other people. 17 Q: Okay. 18 A: Yeah. 19 Q: To get an update or get instructions 20 or see where -- 21 A: Yes. 22 Q: -- you're at? Okay. And -- 23 A: Or fill them in. I'm not -- as I 24 say, I just can't recall whether I was involved in a -- 25 in a sort of an update or -- or if I had simply been sent
701 up to get the in -- to get instructions. 2 Q: Okay. But by that time, you were 3 working on the injunction after the IMC meeting so you 4 wanted to know where you were at and whether there was 5 anything update -- 6 A: Yes. 7 Q: -- happening? Yeah. 8 And so you described in your evidence this 9 discussion with Mr. Taman and he was the deputy minister 10 and he clearly had -- had the authority to give you legal 11 instructions; is that fair? 12 A: As far as I was concerned, yes. 13 Q: Yes. 14 A: Yes. 15 Q: And you clearly understood from him 16 that he wished you to try and schedule a Court hearing 17 for that afternoon, the 6th, in Toronto? 18 A: He -- he wanted us to get a Court 19 hearing just as soon as we absolutely possibly could and 20 -- and then, as I said, sort of follow that up with and I 21 -- can't you -- can't you -- you know, look into getting 22 it this afternoon. I think there's this avenue through 23 which you might be able to do that. 24 Q: Right. And so your in -- his 25 instructions to you were, first of all, to see if you
711 could get a hearing in Toronto -- 2 A: Yes. 3 Q: -- he was explicit about that. And-- 4 A: Yes. 5 Q: -- implicitly, secondly, if you can 6 do it that afternoon in Toronto, do it. 7 Is that a fair understanding, a fair 8 summary of your understanding of what he was saying to 9 you? 10 A: Yes. 11 Q: Okay. So his instructions were, Try 12 and get a hearing in Toronto this afternoon if you can? 13 A: Yes. 14 Q: Okay. 15 16 (BRIEF PAUSE) 17 18 Q: Now, those instructions to get a 19 hearing in Toronto in the afternoon of the 6th, first of 20 all, I've had occasion to review the various notes and 21 evidence a little bit and I've never seen anywhere any 22 note or reference to either that discussion between you 23 and Mr. Taman, and I'm not being critical here, or of any 24 attempt to seek an injunction on the afternoon of the 25 6th.
721 And my question is, have you -- do you 2 know of any reference in any of the materials to that 3 attempt to get an injunction on the 6th of the afternoon? 4 A: There -- there's -- I think there's a 5 mention in my -- the bottom -- I mean it's not a note of 6 the -- of the actual contact, but at the bottom -- at the 7 last page of my notes of the 6th -- no, I guess that's 8 just referring to the Sarnia Judges. 9 I -- I mean -- 10 Q: Yeah, I've seen -- 11 A: I probably -- yeah, I probably made 12 some notes, you know, in my -- my litigation file with a 13 phone number or something, but I don't remember if there 14 was -- 15 Q: So I see notes to the Sarnia -- 16 A: Yes. 17 Q: -- references to the Sarnia Court. 18 I see no reference to the Toronto. 19 A: Right. 20 Q: Okay. And you mentioned some notes. 21 Do you have litigation file notes of this injunction 22 preparation and proceeding which were not turned over to 23 the Commission? 24 A: I certainly don't. 25 Q: Okay.
731 A: I don't have anything. 2 Q: Right. And do you know if such notes 3 exist? In other words, are there your other notes of 4 discussions and preparation which you made which were in 5 the file and you left there when you departed? 6 A: So there certainly are other notes 7 that I would have made that would be in a litigation file 8 around this issue. 9 Now, specifically, you know, there would 10 have -- I -- but I -- specifically what they were or 11 where they are or -- or -- 12 Q: Is it possible that you jotted down a 13 note after your discussion with Mr. Taman about his 14 instructions at that point? 15 A: I doubt it very much. 16 Q: Okay. But there would be other notes 17 that you made in preparation of the injunction materials 18 and so forth; is that fair? 19 A: I expect that I was -- 20 Q: Okay. 21 A: -- in the library and -- and talked, 22 you know, I suspect there were litigation prep. notes 23 that I was making -- 24 Q: Okay. 25 A: -- yeah.
741 Q: All right. And after your 2 conversation in the hallway with Mr. Taman, you called 3 the trial coordinator in Toronto, right? 4 A: Yes. 5 Q: And is -- am I right to think that 6 you probably or did call the trial coordinator quite 7 quickly because you sensed from Mr. Taman that this was 8 very urgent -- 9 A: Yes. 10 Q: -- inherently? So, you -- do you 11 remember calling the trial coordinator in Toronto? 12 A: Yes. 13 Q: Okay. Do you remember his or her 14 name at the time that you spoke to? 15 A: Well, the name Grainger sticks in my 16 mind but -- but I'm not -- I think -- 17 Q: Okay. 18 A: -- that was a judge, Grainger. 19 Q: That was Grange (phonetic), Justice 20 Grange. 21 A: No. See, there was a Grainger. So 22 it may have been the trial -- 23 Q: Okay. All right. 24 A: I don't know. The name Grainger, I 25 don't know if --
751 Q: Do you -- do you recall if you spoke 2 with more than one (1) person in the trial coordinator's 3 office? 4 A: I don't recall. 5 Q: Okay. But, you certainly did call 6 the trial coordinator -- trial coordinator's office and 7 discuss with this person whether or not you could get on 8 in the afternoon for a hearing; is that right? 9 A: Yes. 10 Q: And do you recall roughly what time 11 of day that discussion would have been? Would it have 12 been -- 13 A: My best guess is earlier afternoon -- 14 Q: Right. 15 A: -- but I -- 16 Q: Okay. 17 A: Yeah. 18 Q: And so it's fair to say that if that 19 trial coordinator had said in that discussion that, Yes 20 we can -- I think we can arrange, or, We can't arrange a 21 judge for a hearing this afternoon, you would have argued 22 the injunction in Toronto that afternoon, right? 23 A: That certainly would -- my -- my 24 impression is that would have been our instructions. 25 Q: Right.
761 A: Yeah. 2 Q: Yeah. In fact, those were your 3 instructions from your discussion with -- 4 A: Yeah. 5 Q: -- Mr. Taman; is that right? 6 A: Yes. 7 Q: Now, just a bit of further 8 background, don't take this personally but you've 9 described the situation where the Deputy Attorney General 10 is having a discussion with a lawyer who's been called a 11 year and a half (1 1/2) and is giving him important 12 instructions about an injunction. 13 Did, to your knowledge, the Deputy 14 Attorney General speak, for example, directly to Mr. 15 McCabe around about then -- 16 A: I don't -- 17 Q: -- about this? 18 A: I don't know. 19 Q: You don't know? 20 A: No. 21 Q: Did you speak with Mr. McCabe, having 22 received these instructions, before you called the 23 Toronto trial coordinator? 24 A: In all likelihood, yes. 25 Q: You probably would have said to Mr.
771 McCabe, I just had this discussion, What do you think. 2 And because of the importance and unusual nature of the 3 request and the urgency, you would have wanted to check 4 with Mr. McCabe first; is that fair? 5 A: Yes. 6 Q: Yeah. 7 A: Right. I -- I expect that's right, 8 unless he was not there or something and I felt it -- it 9 was important to -- 10 Q: Right. 11 A: -- to go ahead and find out the 12 information I could anyway. 13 Q: Right. Now, do you recall mentioning 14 to anybody else in the early afternoon of September 6th 15 anything about this idea of seeking an injunction that 16 afternoon? 17 Did you mention it to Julie Jai or Yan 18 Lazor or -- or any of the other folks that had been 19 involved. 20 Did you have time to do that? 21 A: I doubt it. In practical terms, 22 probably because we were physically not in the same 23 place. 24 Q: Yes. 25 A: So, I would have gone from the
781 eleventh floor at 720 Bay to the eighth floor, to Tim 2 McCabe's office, to my telephone. They were a block and 3 a half down the street. 4 Q: Okay. 5 A: And I probably wouldn't have phoned 6 them to say, This is what I'm about to do. 7 Q: Okay. 8 A: Yeah. 9 Q: So, in -- if I put this into the two 10 (2) part framework we discussed before, number 1 is 11 obtaining an order and number 2 is -- is implementing it, 12 according to those instructions of Mr. Taman, if those 13 had been successfully carried out, then the Government 14 would have had an injunction order by the end of the 15 afternoon on the 6th. 16 That was what you were trying to do; is 17 that right? 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MS. KIM TWOHIG: Mr. Commissioner -- 20 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 21 Twohig? 22 MS. KIM TWOHIG: -- I think that assumes 23 that the judge would have granted the injunction. 24 COMMISSIONER SIDNEY LINDEN: Yes, it 25 assumes a few things. I mean, I think we can draw those
791 inferences. Her instructions were to get the order. 2 MR. MURRAY KLIPPENSTEIN: Okay. Yeah. I 3 don't -- I don't mean to -- to jump to conclusions but 4 I'm trying to -- 5 COMMISSIONER SIDNEY LINDEN: I 6 understand. 7 MR. MURRAY KLIPPENSTEIN: -- clarify. 8 Okay. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: The plan was -- now let me rephrase 12 that. If things had gone according to the plan as you 13 understood it, if you had been successful then you would 14 have had an injunction at the end of the afternoon on the 15 6th? 16 A: Sure. In -- in sort of -- I just 17 want to clarify though that the plan as you put it wasn't 18 -- wasn't -- it -- we weren't instructed go this 19 afternoon and get -- get an injunction. We were 20 instructed to get an injunction -- my recollection is 21 that we were instructed to get an injunction just as fast 22 as we possibly could. 23 And along those veins the Deputy Attorney 24 General who was also a lawyer said, I think there's some 25 way you might be able to do this this afternoon in
801 Toronto. Look into that. 2 Q: Yes. 3 A: So -- so sure in the best case 4 scenario I suppose and along that line, if we had managed 5 to get a hearing, actually being able to argue it 6 coherently which would have been a challenge having had 7 an hour to prepare it and -- and then -- and manage to 8 succeed in obtaining the injunction then by that 9 afternoon we might have had an injunction. 10 Q: Yes. 11 A: Yeah. 12 Q: Right. And I did -- the question and 13 a concern did occur to me that you've just described 14 which is, as a litigation lawyer, I wondered exactly how 15 you would pull this one off given the time constraints. 16 And it's a bit funny but it's also very 17 serious, am I right? 18 I mean you -- you essentially -- what was 19 your state of mind when you went to your office thinking 20 I have to call the trial coordinator and I'm -- I'm 21 suppose to try and get an injunction this afternoon. 22 What was your state of mind, as a lawyer 23 working on the file. 24 A: Well, Tim was going to have to argue 25 it. So -- but I --
811 Q: Is it -- is it fair to say that you 2 felt under extreme pressure? 3 A: Sure, that's fair to say. 4 Q: Yeah. And you -- in order to prepare 5 an injunction like that you have to have a motion, a 6 record that consists of a notice of motion, you have to 7 have one or more affidavits, you have to have viva voce 8 evidence lined up if that's what you want, you have to 9 have an argument, you have to have various legal 10 references prepared, and you have to have an idea of 11 strategy and tactics; is that fair? 12 A: Yes, that's fair. 13 Q: And you were not expecting to have to 14 do that on the afternoon of the 6th; is that fair? 15 A: I -- no, I wasn't expecting to have 16 to do that on the 6th. However, as I mentioned before, 17 we had started preparing -- 18 Q: Yes. 19 A: -- on the 5th. I had -- even though 20 I'd only been there for a year and a half, on a number of 21 occasions had to prepare -- we hadn't ever managed -- 22 ever had to go to court, I don't think, or maybe once, 23 but I had had to prepare the materials for an emergency 24 injunction on numerous occasions. 25 So, to pull up a draft, you know, as you
821 know, sort of the draft materials for an emergency 2 injunction -- 3 Q: Right. 4 A: -- sort of, the guts of it wouldn't 5 have been difficult. 6 Q: Yes. 7 A: But -- but, there's no question, I 8 mean, and it would have been a difficult thing. And -- 9 and I think certainly I and Mr. McCabe, and I suspect 10 even Mr. Taman, although I can't speak for him, were -- 11 were -- I was certainly under the impression that this 12 was quite a -- this was an outside chance. 13 I mean, it was -- we weren't -- I didn't 14 have high expectations that we were going to be getting 15 before a judge on -- on that afternoon. And I certainly 16 felt some level of anxiety at the idea that we were going 17 to have to -- potentially going to have to present 18 something to court that afternoon. 19 Q: You -- you said some level of 20 anxiety. 21 A: No question. 22 Q: Frankly it was quite a high level -- 23 A: Absolutely. 24 Q: -- is that fair? 25 A: Yeah.
831 Q: Okay. 2 A: I had a fairly high level of anxiety 3 through this entire period. 4 Q: Okay. Now, in this context, am I -- 5 am I correct in understanding that as a lawyer in your 6 situation there and I guess this would apply to Mr. 7 McCabe as well, and I don't mean to be technical, but you 8 give advice to your client and then you take instructions 9 from your client; is that right? 10 A: That's right. Yes. 11 Q: And so if your -- if you give advice 12 and your client decides for whatever reason not to take 13 your recommendation but gives you other instructions, 14 then you have to follow those instructions; is that fair? 15 A: Within the bounds of what's -- of 16 what you can do, yes. 17 Q: Yes, okay. So, in this context, you 18 had never given advice to seek an injunction on the 19 afternoon of the 6th but you were now instructed to try. 20 Is that a fair general summary? 21 A: Yes. 22 Q: Okay. And you then set about 23 following your instructions; is that fair? 24 A: Yes. 25 Q: Okay.
841 (BRIEF PAUSE) 2 3 Q: If you could retrieve the binder I've 4 provided to you, Dr. Christie and Commissioner, I've 5 tried to compile a number of documents just in case we 6 need them. And hopefully that makes your job easier 7 rather than more difficult, but. 8 At Tab 10 of that binder I have a copy of 9 a handwritten note from Deputy Minister Larry Taman, 10 which in this proceeding is Exhibit P-550. And at the 11 top there's a reference to ONAS. 12 Now, have you seen this document before -- 13 A: No. 14 Q: -- before it was provided to you 15 right in these proceedings? No. Okay. But I am going 16 to ask you about this and see whether you can add to our 17 knowledge. 18 At the top of the page there's a sentence 19 that witnesses have agreed says: 20 "AG instructed by P that [meaning 21 Premier] that he desires removal within 22 twenty-four (24) hours. Instructions 23 to seek an injunction." 24 Now, did Mr. Taman, in your conversation 25 with him in the early afternoon of the 6th, mention the
851 Premier? 2 A: I don't recall. 3 Q: Okay. Did he mention removal of the 4 protestors from the Park? 5 A: Again, I don't recall specifically. 6 What I -- the part, of course, that I was focussed on was 7 the instructions to me to get the injunction. 8 Q: Right. 9 A: So that's my recollection of it. 10 Q: And did he mention getting -- did he 11 mention any twenty-four (24) hour time period or time 12 limit? 13 A: No. Not that I recall. 14 Q: Right. Now, having consideration to 15 what you described or we agreed on as the two (2) part 16 process of an injunction, first, getting the order and 17 second, implementing it. 18 Is it fair to say that for him to ask you 19 to try and get an injunction the afternoon of the 6th is 20 consistent with a strategy in which the injunction is 21 obtained and then it's implemented, all within twenty- 22 four (24) hours? 23 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 24 Twohig? 25 MS. KIM TWOHIG: Yes. I'm wondering if
861 My Friend could clarify what he means by, "implemented," 2 because that could have many meanings. 3 4 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 5 Q: I -- that's a fair question and I 6 deliberately choose what I thought was a neutral word, 7 and I'll -- I'll ask for your thoughts and clarifications 8 on that. 9 But -- but, first of all, when Ms. Hutton 10 said in -- in the September 6th meeting, Premier wants 11 them out in a day or two (2), is it fair to say she 12 wasn't suggesting anything about the method, she just 13 said, Out; is that fair? 14 A: Well, my recollection of the context 15 of that comment is that -- that there was -- we were 16 describing the process of getting an injunction and that 17 -- that -- under the ordinary course of things you would 18 get a -- we would seek an injunction, it would probably 19 be heard within a couple of weeks. 20 And my -- my best recollection is that it 21 was in that context that Deb Hutton then responded, I'm 22 not -- We're not willing to wait two (2) weeks, a couple 23 of weeks, we want this in a day or two (2). So whether 24 the day or two (2) -- that's my recollection of the day 25 or two (2) comment.
871 Q: Let me just -- 2 A: So whether -- 3 Q: -- for clarification -- 4 A: Sure. 5 Q: -- take you to the -- the notes, 6 because I think it's an important point. In your binder, 7 at Tab -- I'll just get the tab here -- 12, we have Ms. 8 Jai's -- and this is the Commission's document binder -- 9 Ms. Jai's handwritten notes of September 5th and 6th -- 10 A: Hmm hmm. 11 Q: -- which are Exhibit P-536. And 12 about -- 13 A: Right. 14 Q: -- three (3) or four (4) pages into 15 the handwritten notes, at the top, there's page -- 16 handwritten page 3; do you see that? 17 A: Yes. 18 Q: And then, a third (1/3) of the way 19 down there's a reference to "Tim" -- 20 A: Yes. 21 Q: -- do you see that? And there's 22 various bullet points with "Tim;" is that right? 23 A: Yes. 24 Q: And then, at the middle of the page, 25 Tim appears to be saying:
881 "Best case, Friday in court." 2 Do you see that? 3 A: Yes. 4 Q: And then the very next notation by 5 Ms. Jai is: 6 "Deb: Premier feels the longer they 7 occupy, the more support they'll get. 8 He wants them out in a day or two." 9 A: Fair enough. 10 Q: And Ms. Jai, in her testimony, said 11 that that -- that that's a sequential arrangement and 12 that Ms. Hutton made that comment just after Mr. McCabe 13 had said, Best case Friday? 14 A: Yes. And you can see that Mr. 15 McCabe's next comment is that suggests that we should 16 proceed under the Code. 17 Q: Right. And is it fair to say that -- 18 do you -- do you remember this exchange somewhat? 19 A: Yes, I mean, I wouldn't have been 20 able to recite the -- 21 Q: Right. 22 A: -- specifics of it, but -- 23 Q: But from what -- 24 A: Yeah. 25 Q: -- you've seen here, you have no
891 reason to disagree with the -- 2 A: No and -- 3 Q: -- reporting? 4 A: -- that certainly accords with my 5 memory of it, yes. 6 Q: Okay. And so it appears that Tim 7 said, Best case Friday for an injunction. 8 A: Yes. 9 Q: Ms. Hutton said, He wants them out 10 in a day or two (2) and then Tim said, That suggests 11 Criminal Code proceedings, right? 12 A: Yes. 13 Q: And from your knowledge of what you 14 saw and heard and your understanding of the process the 15 meaning, not the meaning, the message Tim was conveying 16 was if you want them out in a day or two (2), getting an 17 injunction probably won't do it in the way I've described 18 it? 19 A: Yes. 20 Q: Okay. And that was Mr. McCabe's best 21 case scenario, being in Court on Friday? 22 A: Yes. 23 Q: Yes. And that best case scenario 24 was, in fact, already including a compressed notice 25 period, right?
901 A: Yes. And -- and my interpretation of 2 what he was saying there is that even if you're in Court 3 on Friday, you're not going to -- they're not going to 4 leave the Park, necessarily. 5 I mean, they might, if you -- once you get 6 the Court Order they might say, oh, they've got a Court 7 Order, we'll leave. 8 Q: Right. 9 A: But they won't necessarily leave. So 10 if the Premier wants them out in a day or two (2) then -- 11 Q: Right. 12 A: -- getting an injunction, even in two 13 (2) days, which was Friday, right, because this was 14 Wednesday so -- 15 Q: Yes. 16 A: -- Friday would have been two (2) 17 days. It's still not going to result in them being out 18 of the Park necessarily. 19 Q: Right. And what you knew, sitting 20 there listening to this was that the best case Friday 21 applied to part 1 of the Court Order Strategy which was 22 getting the order and then as you say, Part 2, The 23 Implementation, would only begin then on Friday. 24 A: Yes. 25 Q: Right? Yeah.
911 (BRIEF PAUSE) 2 3 Q: Now, if I take you to your notes or 4 you reviewed this, your notes of this meeting and you can 5 look at them if you want. I'll -- but to summarize, are 6 quite detailed up to approximately this point, actually 7 'til the -- until the end of page 4 of Ms. Jai's notes 8 and then you stop writing. 9 You recall you stopped writing? You 10 mentioned this in your evidence? 11 A: Yes. 12 Q: Now, is it -- and I think you 13 mentioned that you stopped writing because you were now 14 thinking about the work you had to do; is that fair? 15 A: Yes. 16 Q: And so shortly after Ms. Hutton says 17 he wants them out in a day or two (2), things changed for 18 you. You suddenly began to really realize the sort of 19 endeavour you were now, perhaps, being asked to 20 undertake; is that fair? 21 A: Yes. 22 Q: Okay. 23 A: I may have started to realize that, 24 in fact, my instructions were actually going to be, get 25 an injunction, so the -- so the preliminary preparations
921 we'd already started -- 2 Q: Right. 3 A: -- were no longer preliminary, they 4 were -- 5 Q: Right. 6 A: Yeah. 7 Q: And is it fair to say you just heard 8 -- the Premier's representative said -- say, he wants 9 them out in a day or two (2) and you knew that just 10 getting an injunction wouldn't accomplish that, because 11 then it had to be enforced, right? 12 But had you said in your mind at that 13 point, this is impossible or were you saying, well, gee, 14 I don't know exactly how this is going to turn out, but 15 I'd better get to work, or something like that? 16 Can you elaborate or advise me of -- 17 A: Well -- 18 Q: -- anything along those lines? 19 A: Well, my recollection is that shortly 20 after that line of discussion, there's -- it's sort of -- 21 it becomes very clear that our -- that our -- that the 22 recommendation is going to be that we seek an injunction 23 as soon as possible. 24 Q: Yes. 25 A: So regardless -- again, it goes back
931 to -- I mean the -- I was a lawyer, the government was 2 my client, I with Tim. 3 Did I know my instructions were going to 4 be get an injunction as soon as possible, whether I 5 thought that was going to actually fulfil their wishes to 6 have the occupiers out of the park in a day or two (2) 7 was sort of irrelevant; they wanted me to get an 8 injunction in a day or two (2) and it's a legal avenue 9 that's available to them. 10 I -- I was going to start working on it, 11 yes. 12 Q: All right. Did you have any 13 discussion with anybody on the 6th about what would 14 happen, if, in accordance with Mr. Taman's explicit and 15 implicit instructions, you obtained an injunction on the 16 afternoon of the 6th? 17 A: I don't recall having any specific 18 instructions or any -- any discussions along those lines, 19 no. 20 Q: Okay. Well this had been -- Part 2, 21 this implementation issue -- 22 A: Hmm hmm. 23 Q: -- had been discussed in the 24 Committee. It was an obvious issue and yet you don't 25 recall anybody talking about what would happen with that
941 Order. 2 Is -- is that what you're saying? 3 A: Well remember your -- I think your 4 question just a moment ago was did I talk to anybody 5 about what would happen if we got the order on the -- on 6 that day. 7 Q: Yes, fair enough. 8 A: And I didn't really talk to anybody 9 about the idea of getting it on that day because I got 10 the instructions to check it out. I checked it out, it 11 was a no -- it was a no go -- and then on the telephone I 12 knew within five (5) minutes on the telephone that we 13 weren't going to be going that day so that was the end of 14 that. 15 Q: Okay. 16 A: So it wasn't discussed -- 17 Q: Okay. 18 A: -- in any circles. 19 Q: Now the fact that after that five (5) 20 minute conversation, it appeared to -- well, first of 21 all, so after that five (5) minute conversation it 22 appeared to be off the table; is that right? 23 A: As far as I was concerned, it was off 24 the table, yes. 25 Q: Right. And that being the injunction
951 that afternoon in Toronto. 2 A: That's right, because the trial 3 coordinator told me it was not going to happen. 4 Q: Right. 5 A: Yeah. 6 Q: But that doesn't change the fact that 7 before that five (5) minute conversation, you were going 8 to try and implement that if you could, right, as we 9 discussed? 10 A: Yes. 11 Q: Yeah. Now we've heard evidence that 12 around two o'clock on the afternoon of the 6th, Ron Fox 13 called Inspector Carson at Ipperwash -- 14 A: Yes. 15 Q: -- and discussed an injunction. And 16 in that conversation Inspector Fox mentions that the 17 injunction might happen tonight, meaning the evening of 18 the 6th I guess, or tomorrow, meaning the 7th. 19 A: Okay. 20 Q: But in that conversation, Inspector 21 Fox does not mention that it might happen this afternoon 22 on the 6th or that it might happen in Toronto. 23 Now I'm just wondering if you could 24 enlighten, it's poss -- enlighten me, it's possible that 25 Mr. Fox didn't know about the attempt for the 6th in the
961 afternoon? 2 Or it's possible that by two o'clock in 3 the afternoon it was already off the table. Do you have 4 any knowledge, personally, or from what you've seen or 5 heard, that would illuminate that? 6 A: I don't. 7 Q: Okay. So you don't remember and you 8 can't reconstruct whether your call to the trial co- 9 ordinator happened at two o'clock or before or after. 10 You can't be that precise; is that fair? 11 A: I can't be that precise and I think 12 it -- I can tell you that I didn't tell Ron Fox the 13 outcome of that discussion. So I don't know anything 14 about what Ron was involved in or thinking about that 15 afternoon. 16 Q: Right. Now, however, we do have 17 other evidence about what Mr. Fox was doing at -- in the 18 early afternoon and what Mr. McCabe was doing in the 19 early afternoon. 20 And if you could turn, in the document 21 binder I provided, to Tab 12, which we heard is a 22 handwritten note by Ms. Julie Jai after a discussion with 23 Ron Fox, which, in turn, occurred after the Premier's 24 meeting some time in the early afternoon of September 6th 25 on Wednesday.
971 And you can see the first line is -- and 2 the evidence is that Mr. Fox said to Ms. Jai that Tim, 3 which I think clearly is Mr. McCabe -- 4 A: Hmm hmm. 5 Q: -- has asked for someone from the OPP 6 to give viva voce evidence before justice today in 7 Sarnia. 8 A: Hmm hmm. 9 Q: Now first of all, that reference to a 10 judge today in Sarnia could not mean the afternoon of the 11 6th in Sarnia because, to your knowledge, that was never 12 on the table; is that right? 13 A: Well I have a vague recollection so. 14 I checked into the Toronto option and then I was 15 instructed to call the Sarnia office, right, so that -- 16 and again to see how quickly we could be heard. And I 17 have to be honest, I have a very vague recollection that 18 there was some talk about potentially flying us to 19 Sarnia. 20 Q: Hmm hmm. 21 A: And I just -- that's sort of the end 22 -- I mean I have this sort of vague recollection and I 23 think it was sort of so surreal in my mind that I -- I -- 24 it's not that crystal clear a recollection. 25 So, I -- so it may have been that Tim was
981 still thinking, okay, well we have to look into the 2 options while I was doing the phone calls and he was 3 still thinking okay, well, Toronto and it seems Toronto - 4 - maybe he -- maybe by then he knew that Toronto was off 5 the table. 6 But I was then on the phone to Sarnia to 7 see how quickly we could be heard and in some other room 8 some other people were looking into, logistically, 9 whether we could get there that afternoon. 10 So, it's -- I'm not -- I'm not surprised 11 that -- that there's discussion about the possibility of 12 Sarnia that afternoon. 13 Q: Okay. 14 A: Yeah. 15 Q: So, in fact you do have some 16 recollection, however vague, that there was discussion of 17 an attempt to have the injunction heard on the afternoon 18 of the 6th in Sarnia? 19 A: Yes. 20 Q: Okay. 21 22 (BRIEF PAUSE) 23 24 Q: Now, as I said before, the -- the 25 evidence we've heard of -- of Inspector Fox calling
991 Incident Commander Carson uses the word 'tonight' or 2 'tomorrow' and that's at two o'clock. So, if there was a 3 discussion about having an injunction hearing on the 4 afternoon of the 6th whether it's Toronto or Sarnia, Mr. 5 Fox -- Inspector Fox, apparently either didn't know about 6 it or no longer considered that an option when he made 7 the call at two o'clock. 8 Does this make any sense to you or maybe - 9 - you don't know anything about this? 10 A: Yeah. I -- I don't know anything 11 about that, yeah. 12 Q: Yes. Okay. Do you know if following 13 the IMC meeting on the 6th Mr. McCabe spoke with Ron Fox 14 about getting evidence? 15 A: Yes. I think my recollection is that 16 he did. 17 Q: Okay. And do you know anything about 18 how and when that happened, the discussion between Mr. 19 McCabe and Mr. Fox? 20 Was it in your presence or did Mr. McCabe 21 tell you this is what he had done? 22 A: Well, my recollection is that when we 23 left the Interministerial Committee Ron Fox and -- and 24 Tim McCabe and I walked up the street from -- from the 25 ONAS offices together.
1001 Q: Okay. 2 A: I don't recall the specifics of the 3 discussions at that point and whether -- I don't think 4 that that discussion involved anything about giving 5 evidence, giving viva voce evidence or any of this kind 6 of stuff. 7 So -- and then I wasn't privy -- I 8 wasn't involved in any other discussions, but I do -- I-- 9 Q: Okay. 10 A: -- I do recall that Tim either told 11 me he was going to or told me he had contacted Ron so 12 that Ron could arrange for an OPP officer to give viva 13 voce evidence. 14 Q: All right. Just -- I anticipate the 15 evidence of Mr. McCabe might be that some of that 16 discussion about viva voce evidence occurred in the walk 17 from 595 Bay to 720 Bay and I just put this to you to see 18 whether that -- 19 A: It might have. 20 Q: -- it's a possibility? 21 A: Yes. 22 Q: Okay. Do you recall anything else in 23 that -- how long is that walk, fifteen (15) minutes, ten 24 (10) minutes? 25 A: Five (5), ten (10) minutes.
1011 Q: Five (5), ten (10) minutes? 2 A: Yeah. 3 Q: Do you recall anything out of -- 4 A: Five (5) minutes. 5 Q: -- anything else about that walk, 6 anything that Mr. Fox said about the meeting or any of -- 7 any of you said about that meeting? 8 A: Not specifically. 9 Q: Okay. In general? Do you... 10 A: In general I recall, probably, myself 11 and -- and -- and then hearing certainly Ron voicing some 12 concern about the -- the haste with which decisions were 13 being made and the haste with -- with which it appeared 14 that the -- the Government wanted to move on this thing. 15 Q: Okay. And do you recall -- where was 16 Mr. -- Inspector Fox going? 17 He -- he wasn't going to 720 Bay was he? 18 A: No, he wasn't. 19 Q: He was going further up to the Sol 20 Gen. 21 A: He was going to some other meeting. 22 Q: Okay. 23 A: Yeah. 24 Q: Did -- we know from the evidence that 25 was some time after the IMC meeting Inspector Fox went to
1021 the Premier's meeting. 2 Do you recall whether there was any such 3 discussion in the walk from 595 Bay to 720 Bay? 4 A: I have a vague recollection that he 5 said something to the effect that he'd been -- he'd been 6 summonsed to another meeting. 7 Q: Okay. 8 A: Where exactly I don't remember him 9 saying. Whether that was that meeting or another meeting 10 or that meeting, I don't know. 11 Q: Okay. But do you recall -- you used 12 the word, "summonsed" or the concept of being summonsed? 13 A: Yes. 14 Q: Yes. So it's possible that that 15 wasn't -- that as -- do you recall him speaking on the 16 cell phone or anything during that walk? 17 A: I don't recall. 18 Q: Okay. But, during that walk do you 19 recall him mentioning something to the effect that he had 20 just been summonsed to another meeting? 21 A: Yes. 22 Q: Okay. 23 24 (BRIEF PAUSE) 25
1031 Q: Now, is it consistent with your 2 recollection that, in fact, and you may not have first 3 hand knowledge of this, I'm just asking you whether this 4 contradicts with your -- your other knowledge or is 5 consistent with your knowledge, that that fact, that call 6 -- that comment by Mr. -- Inspector Fox was summonsed to 7 the Premier's meeting, that he went; that Mr. Taman 8 attended there as well. 9 Subsequently, Mr. Taman went back to 720 10 Bay and that's about when he spoke with you. Does that 11 fit? Is there any reason to -- 12 COMMISSIONER SIDNEY LINDEN: I don't see 13 how this Witness can put that together for you. I mean, 14 you're making the points and you're going to have to put 15 that together at some point. 16 MR. MURRAY KLIPPENSTEIN It's a negative 17 question to see -- 18 COMMISSIONER SIDNEY LINDEN: Sure. 19 MR. MURRAY KLIPPENSTEIN -- whether -- 20 whether, in fact, it's -- doesn't fit, but, okay, I won't 21 proceed with that. 22 23 (BRIEF PAUSE) 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
1041 Q: Then if you could turn, in the 2 documents binder I've provided to you, to Tab 13, which 3 is existing exhibit, being a transcript of a conversation 4 between Mr. McCabe and Inspector Carson. 5 And it's Exhibit P-444(b). And about four 6 (4) lines down, the transcript says: 7 "It's Tim McCabe at the Ministry of the 8 Attorney General. I was talking to Ron 9 Fox recently about possible legal 10 proceedings in connection with [and 11 then it seems to peter out]." 12 And this appears to be at about 2:36 in 13 the afternoon. 14 Do you know from what you saw and heard, 15 whether this reference by Mr. McCabe would be the talk 16 during the walk, or did you -- did you know of any other 17 conversation that Mr. McCabe had with Mr. Fox -- 18 A: I don't know. 19 Q: -- before 2:36? 20 A: I don't know. 21 Q: Okay. Do you know if Mr. McCabe had 22 a discussion with Inspector Fox after the Premier's 23 meeting but before 2:36? 24 A: I don't know. 25 Q: Okay.
1051 (BRIEF PAUSE) 2 3 Q: And I get the sense from reading the 4 transcripts of Mr. McCabe's speaking to Inspector Carson 5 at 2:36, and the transcript of Inspector Fox speaking to 6 Inspector Carson at two o'clock, a little -- about half 7 an hour before that, that Mr. McCabe had asked Mr. Fox to 8 call Inspector Carson about testimony. 9 Did Mr. McCabe discuss any of that with 10 you? 11 A: I recall that -- whether it was a 12 conversation that involved Ron Fox or -- or not, but 13 certainly Mr. McCabe had -- had indicated that we were 14 going to ask Mr. Fox to arrange to make the direct 15 contact with the OPP so that we could -- and then I -- I 16 think he was then going to tell us who to call. 17 Q: Okay. 18 A: So, that Ron Fox was going to figure 19 out who would be the appropriate person and then would 20 tell either Tim or myself, I think Tim, directly -- 21 Q: Right. 22 A: -- who we should phone. I mean, what 23 the phone number was. 24 Q: Right, okay. So, to your 25 recollection, Mr. McCabe was asking Mr. -- Inspector Fox
1061 to assist with contacting the police and arranging 2 witnesses? 3 A: Yes. 4 Q: Okay. And at Tab 11 of that binder, 5 we have the conversation transcript between Inspector Fox 6 and Inspector -- Incident Commander Carson, which is 7 Exhibit P-444(a). 8 A: Yes. 9 Q: And at the second page of that 10 transcript, the 5th reference to Fox it says, "They are 11 making moves"; do you see that? 12 A: Yes. 13 Q: And Inspector Fox appears to be 14 saying: 15 "They are making moves towards getting 16 an ex parte injunction. In other words 17 one that doesn't have to be served." 18 A: Yes. 19 Q: And so it appears that at this point 20 in time which is two o'clock, Mr. Fox is saying to 21 Inspector Carson that it's going to be an ex parte 22 injunction; is that right? 23 A: That's what he's saying, yeah. 24 Q: All right. And I'd like to ask you 25 about the issue of the ex parte aspect of the motion. I
1071 believe you said in your evidence that if the injunction 2 was going to be heard on the 6th, in the afternoon in 3 Toronto, it was without question going to have to be ex 4 parte or without notice; is that fair? 5 A: Yes. 6 Q: Because of the timing there just 7 simply wasn't enough time in one (1) or two (2) hours to 8 prepare the notice and serve the notice on the protesters 9 in the Park; is that right? 10 A: Well yes, and plus there would be no 11 point in applying for an injunction if you were applying 12 for an injunction on notice because you'd be serving 13 people -- you would never succeed in that regard, right? 14 Q: Right. 15 A: I mean you'd be serving somebody with 16 notice and then asking to abridge the time for service 17 when you'd served them and they're three (3) hours by car 18 away and so on. 19 Q: Exactly. 20 A: You -- it would not -- it would be an 21 inane procedure, so you might as well not do it. 22 Q: Right. So, it didn't make any sense. 23 It was clear -- 24 A: Yes. 25 Q: -- when the Deputy Attorney General
1081 said try and get it in -- on the 6th in the afternoon, it 2 was going to be ex parte in that scenario? 3 A: Yes. 4 Q: All right. And Mr. -- Inspector Fox 5 in this conversation at two o'clock makes no mention to 6 Inspector Carson that it might be heard in Toronto. And 7 by two o'clock Inspector Fox is already saying it's 8 probably going to be an ex parte injunction. 9 Now, it appears that the assumption was 10 that it would be ex parte before anybody had spoken to 11 possible police witnesses at Ipperwash; is that fair? 12 A: Well, certainly, Mr. Fox is saying -- 13 and that's what Mr. Fox is saying at two o'clock and Tim 14 hadn't spoken to any potential witnesses. 15 Q: Right. So, for example, in one 16 scenario that the Deputy Attorney General was saying when 17 he said, Do it in Toronto, do an ex parte injunction by 18 necessary implication. 19 And he was saying that before anybody had 20 talked to the police to ask whether there was urgency; is 21 that right? 22 A: No. I don't think that's a fair 23 characterization. So, the issue of whether there was 24 urgency or not had been discussed in the meeting. So, we 25 had all the minutes from the September 6th meeting and
1091 there was discussion about the issues of urgency, right-- 2 Q: All right. 3 A: -- of public safety, of gunfire and 4 those sorts of things. And you can see from the notes 5 that there's still -- 6 Q: Yeah. 7 A: -- still was Tim's advice in that 8 meeting that an ex parte injunction was going to be a 9 very, very difficult thing to obtain. I can't remember 10 the exact words. 11 But -- so that's -- so that's what we have 12 at that point. 13 Q: All right. And let's look at it from 14 the point of view of the police officers' perspective. 15 You mentioned the discussion of urgency in the September 16 6th IMC meeting in the morning. 17 Certainly as I understand the evidence, 18 Inspector Fox was not in that meeting saying, It's 19 urgent, get an ex parte injunction. He was saying the 20 opposite, right? 21 A: Yes. 22 Q: Okay. So that's one police officer. 23 We have a two o'clock -- 24 A: He wasn't -- he wasn't a police 25 officer, right? My -- I know he was a police officer but
1101 he didn't -- 2 Q: He was seconded to the -- 3 A: Solicitor General. 4 Q: At that point, yes. 5 A: Yes. 6 Q: But in terms of any other police 7 officer having input into the urgency question, we see 8 that Inspector Fox talked about ex parte motion to 9 Inspector Carson. But already the Government had decided 10 on an ex parte motion before any input from the incident 11 commander at Ipperwash about whether or not it was 12 urgent. 13 A: That's not -- it's still -- I don't 14 think that's fair because Ron Fox was reporting to the 15 meeting the information that he had obtained from the 16 police. 17 So, he reported at those meetings an 18 update that he obtained -- at least this was my 19 impression of what he was doing was -- was reporting 20 updates on information based on what he received from the 21 -- from the local -- the police officers and the 22 inspectors or whoever he spoke to locally. 23 Q: Right. 24 A: And then the question of whether that 25 met the test of urgency was sort of up to us really,
1111 right, I mean? 2 Q: Okay. And so you're saying the 3 conduit for police information as of that point in time 4 around noon September 6, was Fox? 5 A: Yes. 6 Q: Fox himself did not think, based on 7 that information, an ex parte urgent injunction was 8 appropriate, correct? 9 A: I don't know if Ron knew what an ex 10 parte injunction was frankly, but -- but the issue -- 11 certainly he -- 12 Q: An urgent injunction he did not think 13 was appropriate? 14 A: Yes. 15 Q: And if Ron Fox was the conduit for 16 police information, certainly, if you turn to -- so -- so 17 that's the only police opinion on the question of an 18 urgent injunction which the committee or you had before 19 you around noon on the 6th; that was Ron Fox's, right? 20 A: Well, it was Ron Fox and the 21 information that he was conveying to us from the local 22 police. 23 Q: Right. But his conclusion after all 24 that information that he got was an urgent injunction is 25 not appropriate, correct? You just said that.
1121 A: Yes. 2 Q: Okay. Then if you could -- so that's 3 the police information or an opinion. If you could turn 4 in your binder to Tab -- 5 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 6 Twohig? 7 MR. MURRAY KLIPPENSTEIN: -- 6. 8 MS. KIM TWOHIG: Excuse me. 9 COMMISSIONER SIDNEY LINDEN: Just before 10 you -- 11 MS. KIM TWOHIG: I'm sorry to interrupt 12 Mr. Klippenstein -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MS. KIM TWOHIG: -- but before we go on, 15 I'm just concerned about the characterization of 16 Inspector Fox maybe saying that an ex parte injunction 17 was not appropriate. I understand that the evidence was 18 that he did not consider the matter urgent at that point 19 which is something a little bit different. 20 COMMISSIONER SIDNEY LINDEN: He clarified 21 that. 22 MS. KIM TWOHIG: Yeah. 23 COMMISSIONER SIDNEY LINDEN: I think Mr. 24 Klippenstein clarified that or made the distinction 25 between using the phrase, 'ex parte' and using the
1131 phrase, 'urgent', I think. 2 MR. MURRAY KLIPPENSTEIN: Thank you. I - 3 - didn't mean to go too far in that and I think -- 4 COMMISSIONER SIDNEY LINDEN: Well, the 5 Witness didn't agree with you, in any event, so you've 6 changed your -- your question to -- 7 MS. KIM TWOHIG: Okay. But -- 8 COMMISSIONER SIDNEY LINDEN: -- asking 9 about urgency as opposed to ex parte. 10 MS. KIM TWOHIG: All right. But I think 11 he -- 12 MR. MURRAY KLIPPENSTEIN: Yes. 13 MS. KIM TWOHIG: -- just concluded that 14 line of questioning by making the statement: 15 "So Inspector Fox did not consider that 16 an ex parte injunction was 17 appropriate." 18 And that can be a bit of a -- a loaded 19 expression in terms of the legal propriety and his -- 20 COMMISSIONER SIDNEY LINDEN: Right. 21 MS. KIM TWOHIG: -- view about urgency 22 at the time. 23 COMMISSIONER SIDNEY LINDEN: It's 24 important that we be precise, Ms. Twohig. 25 MS. KIM TWOHIG: Thank you.
1141 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: All right. But just to be clear 4 about it I believe you mentioned that you agreed that it 5 did not appear from what you saw and heard that Inspector 6 Fox considered the matter at the Park urgent in a way 7 that you thought would support an ex parte injunction? 8 A: Well, I'll answer it by rephrasing it 9 so that -- 10 Q: Sure. 11 A: -- I'm precise. But my sense, coming 12 out of the September 6th meeting, was that our best legal 13 advice was that an ex parte injunction was unlikely to 14 succeed, based on the facts that we heard through that 15 meeting, and certainly some of those facts were that Ron 16 Fox was reporting the OPP view of the situation was that 17 it was not at that moment an emergency, urgent, frantic 18 situation. 19 Q: Okay. Thank you. And then if you 20 could turn to Tab 12, which is Julie Jai's notes of the 21 September 6th meeting? 22 A: 12 of your -- 12 of the big binder? 23 Q: Yes. 24 A: Okay. 25 Q: And again, at the top of page 3 or
1151 near the top of page 3, we have some comments by Tim 2 McCabe in the September 6 IMC meeting in the morning? 3 A: Yes. 4 Q: Do you have that? And the second 5 bullet point under Tim's section is: 6 "Not a case for ex parte injunction." 7 Do you see that? 8 A: Yes. 9 Q: And then the next line is: 10 "Should give notice." 11 A: Yes. 12 Q: And again it's an abridged notice, 13 but his conclusion and advice at that point was not ex 14 parte, right? 15 A: Yes. 16 Q: All right. And so as of around noon 17 or 11:30 or noon on the 6th, to the best of your 18 knowledge, neither any police officer, to your knowledge, 19 or any lawyer, was recommending that the Government 20 proceed ex parte; is that correct? 21 A: That's right. 22 Q: Okay. And then by two o'clock we 23 have Inspector Fox saying to incident commander, They are 24 making moves towards getting an ex parte injunction, as 25 we've seen.
1161 And my -- my question is: Are you aware 2 of any police opinion that came into the equation between 3 11:30 and twelve o'clock at -- on the 6th and two 4 o'clock, when Inspector Fox calls Inspector Carson, that 5 is, new information or opinion from the police that 6 supports an ex parte injunction, to your knowledge? 7 A: I'm not aware of any, no. 8 Q: Okay. And when Mr. Taman, the Deputy 9 Attorney General spoke to you in the hallway about 10 attempting to get an injunction on the afternoon of the 11 6th, he didn't make any mention to any police opinion or 12 evidence about urgency I take it? 13 A: I don't recall anything specific, no. 14 Q: Okay. 15 COMMISSIONER SIDNEY LINDEN: As I 16 understand it, Mr. Klippenstein, that was one of the 17 reasons for the call wasn't it, to ask whether or not 18 there was any evidence of urgency, isn't that what this 19 call is about later in the call? 20 MR. MURRAY KLIPPENSTEIN: Exactly and the 21 reason I'm asking these -- 22 COMMISSIONER SIDNEY LINDEN: Yes. Are 23 you going to get to that? 24 MR. MURRAY KLIPPENSTEIN: The reason I'm 25 asking these questions, Commissioner, is that it appears
1171 that the decision to go ex parte had been made before any 2 police supported it. 3 COMMISSIONER SIDNEY LINDEN: No, I 4 understand the reason you're asking. But that was one of 5 the reasons for the call, I think, and you're saying that 6 this part of the conversation occurred before. 7 MR. MURRAY KLIPPENSTEIN: Exactly, yes. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 MR. MURRAY KLIPPENSTEIN: So my 10 questions, and I apologize if I'm not being clear or if 11 I'm being tedious and boring as usual but -- 12 COMMISSIONER SIDNEY LINDEN: No, no. No, 13 you're not. 14 MR. MURRAY KLIPPENSTEIN: -- the -- the 15 point -- the point I'm trying to seek out is there 16 appears to be a decision to go ex parte when there was no 17 police evidence to back it up. 18 COMMISSIONER SIDNEY LINDEN: Well, I 19 think I can see the point you're trying to make. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: And if you could then turn to the 25 binder I provided, at Tab 9, which is an e-mail from
1181 Julie Jai to Yan Lazor at about 12:54 p.m., the early 2 afternoon on September 6th. I think it's Exhibit P-653, 3 and I believe you looked at this before. 4 At the bottom of page 1 there's a heading 5 "The Injunction," do you see that? 6 A: Yes. 7 Q: And it says: 8 "Tim McCabe advised that we do not have 9 grounds for an ex parte injunction. 10 However, we will take steps to have an 11 injunction heard ASAP and could 12 possibly get before a judge in Sarnia 13 as early as this Friday. 14 Tim and others are working on the 15 interim injunction application post 16 haste." 17 Now I think you made some comment about 18 that in your evidence. But my question to you is, is it 19 -- does it appear that Ms. Jai was operating on not the 20 most recent information at this point at about one 21 o'clock? It's possible that she wasn't aware of -- of 22 Mr. McCabe's instructions to you and so forth? 23 A: I don't -- I don't know how to help 24 you with that question, sorry. 25 Q: Okay. Or, let me put it this way,
1191 had you spoken with Ms. McCabe after the end of the IMC 2 meeting and before around one o'clock, to your knowledge? 3 A: Had I spoken -- 4 Q: I'm sorry. 5 COMMISSIONER SIDNEY LINDEN: You mean Ms. 6 Jai. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: Ms. Jai, sorry. 10 COMMISSIONER SIDNEY LINDEN: I think you 11 mean Ms. Jai. 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: Ms. Jai. Sorry, I apologize, yeah. 15 A: I may have spoken to Julie Jai 16 between the meeting and one o'clock. 17 Q: You don't know -- 18 A: I may have or may not have. I don't 19 know, sorry. 20 Q: Do you remember if you spoke to Julie 21 Jai after you got instructions from Mr. Taman in the 22 hallway? 23 A: Not -- not immediately. I don't 24 think I spoke to anybody other than probably Tim if he 25 was around.
1201 Q: Okay. So, it's possible that when 2 she says that: 3 "ASAP means getting before a judge in 4 Sarnia as early as this Friday." 5 That was slightly old news by that point? 6 A: Well it would -- it would appear to 7 me, from that paragraph, that she was unaware of my 8 discussion with Mr. Taman -- 9 Q: Right. 10 A: -- which doesn't surprise me. 11 Q: Right, okay. So she may have been 12 reporting on what happened in the meeting up until 11:30? 13 A: Yes. 14 Q: Okay. 15 A: She may have been. She -- I don't 16 know if she had other information or not. 17 18 (BRIEF PAUSE) 19 20 A: I do note that it says: 21 "However, we will have steps to -- to - 22 - so we've been advised that we don't 23 have grounds for an ex parte 24 injunction. However, we'll take -- 25 however, we'll take steps to seek an
1211 injunction ASAP." 2 Q: Right. 3 A: But, I can't elucidate that any more. 4 Q: Okay. I asked you some questions 5 about how your instructions from Mr. Taman were conveyed 6 to Mr. McCabe. 7 Do you know if Mr. McCabe spoke with Mr. 8 Taman after Mr. Taman gave you some instructions in the 9 hallway and -- 10 A: I don't know. 11 Q: Okay. And would you agree with me 12 that it's quite possible that the two (2) of them spoke 13 since, at this point, we have Mr. McCabe, a very senior 14 and experienced litigation lawyer, working on a very 15 rushed injunction based on a conversation from a very 16 junior lawyer. 17 Is -- and I'm not saying that critically, 18 but is it possible that Mr. McCabe went and spoke with 19 Mr. Taman or vice versa on this issue? 20 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 21 Twohig? 22 MS. KIM TWOHIG: The Witness is being 23 asked to speculate here. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. KIM TWOHIG: Mr. McCabe will be
1221 called as a witness -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MS. KIM TWOHIG: -- next and I think the 4 question is more appropriately put to him. 5 COMMISSIONER SIDNEY LINDEN: I think that 6 question was asked earlier, as well. You did ask that 7 question and I think she answered it already; she didn't 8 know. 9 MR. MURRAY KLIPPENSTEIN Okay. I'll move 10 on, although it's -- it's important. I'll try and ask 11 non-repetitive questions to clarify that if it's still... 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN 14 Q: Did -- did you ever hear Mr. McCabe - 15 - well, I think you've already said you -- you probably, 16 but don't recall actually having a discussion with Mr. 17 McCabe about what Mr. Taman said to you, right? 18 COMMISSIONER SIDNEY LINDEN: Yes, you 19 already asked that. She said -- 20 MR. MURRAY KLIPPENSTEIN I apologize. 21 COMMISSIONER SIDNEY LINDEN: -- she 22 probably would have, if -- 23 MR. MURRAY KLIPPENSTEIN Yes. 24 COMMISSIONER SIDNEY LINDEN: -- unless he 25 wasn't there or something to that effect, but --
1231 MR. MURRAY KLIPPENSTEIN Right. 2 COMMISSIONER SIDNEY LINDEN: -- you did 3 ask and she did answer that question. 4 MR. MURRAY KLIPPENSTEIN Right. 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: Do you know, did Mr. McCabe ever 8 mention to you awareness of the contents of the Taman 9 handwritten note that I've mentioned to you, in other 10 words, the Premier's desire to have the protesters 11 removed in twenty-four (24) hours? 12 Did Mr. McCabe ever mention anything on 13 that specifically to you? 14 A: No. 15 Q: Okay. 16 A: Not that I remember, anyway. 17 Q: All right. When you say not that you 18 remember, is it possible that it happened and you don't 19 remember? 20 A: It's possible, though it seems 21 unlikely, because I suspect I would have remembered. 22 Q: All right. 23 24 (BRIEF PAUSE) 25
1241 Q: You mentioned that -- you mentioned 2 in your evidence that when you had settled on an 3 injunction application in Sarnia, you worked frantically 4 that afternoon and that evening and part of that night, 5 preparing the materials and getting ready for the 6 injunction hearing; is that right? 7 A: Yes. 8 Q: And now I take it that a lot of that 9 work would have been work that you simply wouldn't have 10 time to do if the injunction had been heard on the 11 afternoon of the 6th in Toronto; is that fair? 12 How would -- 13 A: Sure. Sure, I guess work that took 14 me ten (10) hours wouldn't have happened if I -- if I'd 15 had to appear an hour later. 16 Q: Right. 17 A: Yeah. 18 19 (BRIEF PAUSE) 20 21 Q: Was there any discussion by your -- 22 yourself or Mr. McCabe or Mr. Taman when you were 23 discussing an injunction application on the afternoon on 24 the 6th in Toronto, about the implications of that for 25 the protesters in the Park?
1251 A: I don't follow you, I'm sorry. 2 Q: Was there any discussion about how an 3 injunction application on the -- on the 6th would pose 4 difficulties for the protesters in the Park in having a 5 say in the court process? 6 Did anybody say this is going to be a 7 problem because they won't have any way of getting to 8 into court even if they wanted to? 9 A: Well, I guess to the extent that -- 10 that we quickly concluded that the only practically 11 available option was an ex parte injunction then that 12 discussion occurred in that context, but other -- beyond 13 that I -- I don't recall anything. 14 Q: And one effect of the injunction 15 application on the 6th in Toronto if it had gone the way 16 Mr. Taman and -- and -- had planned or -- or hoped for, 17 would that there would have been a court order for 18 clearing out the Park before the police marched on the 19 Park on Ipper -- on the evening of the 6th? 20 In fact, there would have been a court 21 order injunction in place? 22 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 23 Twohig...? 24 MS. KIM TWOHIG: Thank you. I don't 25 have any problem with the general tenor of the question
1261 other than that it seems to attribute to Mr. Taman a 2 desire to do something whereas he may have just been 3 relaying instructions that he had received. And I don't 4 think it's fair to characterize it as his desire. 5 COMMISSIONER SIDNEY LINDEN: Well, he 6 used the phrase 'hoped for.' We know that those were his 7 instructions, but what his hopes were we don't know. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: I think that's a very valid point and 11 I -- that was the reason I asked about instructions 12 earlier on. I don't mean to suggest that either Mr. 13 Taman or yourself or Mr. McCabe, when you were following 14 explicit instructions were personally wanting the outcome 15 of those instructions. 16 I just want to make that clear again, but 17 as -- as -- as My Friend mentioned I -- I do want to try 18 and rephrase that question. 19 But, to the effect -- and I guess this is 20 a simple factual question of carrying out the injunction 21 application on the afternoon of the 6th would have been 22 that there would have been a court order if successful by 23 the end of the afternoon on the 6th that the protesters 24 clear the Park before, as we now know, the police marched 25 on the Park in early evening or later evening of the 6th,
1271 is that right? 2 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 3 Twohig...? 4 I don't see how this Witness can help you 5 with that, that's -- 6 MS. KIM TWOHIG: You're speculating. 7 COMMISSIONER SIDNEY LINDEN: Those are 8 facts that we can draw our own inferences from that. If 9 the order had been granted on the afternoon, the march 10 didn't occur until the evening, we don't need a Witness 11 to tell us one occurs before the other. Yes...? 12 MS. ANDREA TUCK-JACKSON: Mr. 13 Commissioner, I just wanted to raise a concern about My 14 Friend's characterization of the march on the Park to 15 suggest that -- that what was happening was the police 16 were moving in to remove them from the Park that night. 17 And the evidence to-date hasn't been that. 18 COMMISSIONER SIDNEY LINDEN: Yes, well, 19 before the police went down the road or some -- 20 MS. ANDREA TUCK-JACKSON: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- phrase 22 that's a little more neutral at this point. 23 MS. ANDREA TUCK-JACKSON: Thank you. 24 MR. MURRAY KLIPPENSTEIN: I don't accept 25 My Friend's characterization, yeah, but I don't mean to--
1281 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MR. MURRAY KLIPPENSTEIN: -- be 3 provocative on that point at this point. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: We've heard evidence that Acting 7 Detective Sergeant Wright went down to the Park area, the 8 parking lot in front of the Park at around 6:30 or 7:00 9 or 7:30. 10 Do you know of any way in which Detective 11 Sergeant Wright in fact heard about the plan for an 12 injunction on the 6th? 13 A: Do I know how he heard about the -- 14 Q: No. 15 A: -- plans for an injunction? 16 Q: I don't -- I'm not saying -- I'm not 17 suggesting that in fact he did hear, I'm asking: Do you 18 know whether Acting Detective Sergeant Wright, before the 19 time of about 6:30 or 7:00 on the evening of the 6th, had 20 heard about the attempted injunction on the 6th 21 afternoon? 22 A: I don't have any information about 23 that. 24 Q: Okay. Do you know if anybody else in 25 the office of the Attorney General's department had
1291 conveyed any information to Detective Sergeant Wright 2 about the attempted injunction of the afternoon of the 3 6th? 4 A: I don't know anything about that. 5 Q: Did you -- do you know if Mr. Taman 6 had any conversations with Commissioner O'Grady to convey 7 that there might be an injunction of the afternoon of the 8 6th? 9 A: I don't know. 10 Q: Okay. 11 12 (BRIEF PAUSE) 13 14 Q: When there was an attempt to arrange 15 an injunction on the afternoon of the 6th in Toronto, do 16 you recall if you or anybody else gave any thought to the 17 possibility of having police viva voce evidence in Court 18 on the afternoon of the 6th? 19 A: I don't think that, certainly, my 20 thought process got that far because I picked up the 21 phone and spoke to the trial co-ordinator and the trial 22 co-ordinator said it's not happening. 23 We didn't have to go any further about 24 figuring out how we might go about doing it on the -- on 25 that afternoon in Toronto because it wasn't going to
1301 happen. 2 Q: Okay. 3 4 (BRIEF PAUSE) 5 6 A: And I don't know whether anybody else 7 gave any thought to it or not, I have no idea. 8 9 (BRIEF PAUSE) 10 11 MR. MURRAY KLIPPENSTEIN Commissioner, 12 I'm about to embark on a new area of questioning. I'm 13 happy to proceed and begin before the lunch break or -- 14 COMMISSIONER SIDNEY LINDEN: Well, how 15 much longer do you anticipate you might be, and we'll 16 make a decision based on that? 17 MR. MURRAY KLIPPENSTEIN I will probably 18 be an hour to an hour and a half. 19 COMMISSIONER SIDNEY LINDEN: I think we 20 could probably go a little longer now, then, to try to 21 get some more of your examination completed before we 22 break for lunch. 23 When you reach a convenient spot, tell us 24 and we'll break then. 25 MR. MURRAY KLIPPENSTEIN Thank you.
1311 (BRIEF PAUSE) 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: If I could ask you then to -- to now 5 turn to the motion record that was prepared and filed at 6 court. That's in your big binder at -- at Tab... 7 A: 19. 8 Q: 19, thank you. 9 10 (BRIEF PAUSE) 11 12 Q: And the -- the motion record begins, 13 as most do, with a Notice of Motion. Do you have that -- 14 A: Yes. 15 Q: -- before you? Okay. 16 And I want to ask you about the order 17 sought and on handwritten page 5, the top of the page 18 says: 19 "The Motion is for..." 20 And then there's three (3) long paragraphs 21 covering the next two and a half (2 1/2 ) pages, right? 22 A: Yes. 23 Q: And that is, as usual, the order that 24 is actually being sought? 25 A: Yes.
1321 Q: Is that correct? So, in fact, as 2 usual, you were in the best case scenario, asking the 3 court to simply approve those three (3) paragraphs as the 4 court order? 5 A: Yes. 6 Q: Yeah. And you mentioned a bit in 7 your evidence about the preparation of this and I take 8 you had a hand in preparing this Notice of Motion? 9 A: Yes. 10 Q: And did you collaborate with Mr. 11 McCabe on this? 12 A: Yes. 13 Q: And you would have been working on 14 this in the afternoon and the evening of the 6th -- 15 A: Yes. 16 Q: -- is that right? And you mentioned 17 that your office was pretty close to Mr. McCabe's and 18 there was a sort of secretarial workstation close to it 19 or in between? 20 A: The secretarial workstation right 21 outside of his office. 22 Q: Okay. 23 A: My office was a little ways away. 24 Q: Okay. 25 A: Yeah.
1331 Q: And in terms of the -- and I'm going 2 to apologize for the -- the detail, but I'm going to ask 3 some detailed questions about parts of this proposed 4 order. 5 And, in fact, in the end, the court did 6 grant this order exactly the way it's requested here, but 7 added the rider that it not be enforced for -- for a 8 period; is that right? 9 A: Yes, and -- and other -- 10 Q: And other -- 11 A: Other features, yes. 12 Q: -- additional features related to 13 notice and so forth? 14 A: That's my recollection. I have to 15 admit I haven't re-read the specific order and compared 16 it exactly to the motion record in quite some time. 17 Q: Right. Now, I want to ask some 18 questions about paragraph 3 of the proposed order. 19 Paragraphs 1 and 2 are directed to the occupiers of the 20 park in telling them to remove themselves and so forth 21 and that, to my eyes, is a fairly standard set of 22 injunction paragraphs. 23 Am I right so far? 24 A: Yes. 25 Q: And do you know if you pulled -- did
1341 you, in fact, pull those off the computer from a previous 2 precedent, paragraphs 1 and 2? 3 A: We -- we probably would have pulled 4 up a precedent and then -- and then morphed it to be 5 appropriate for this case. 6 Q: Okay. 7 A: Yeah. 8 Q: And some of this work was occurring 9 in a rush and late in the day so am I right in thinking 10 probably you and Mr. McCabe were working alone and you 11 were sitting at the computer because Mr. McCabe, I think 12 at some point, somehow, said he was not -- he didn't use 13 a computer or something like that. 14 So were you working together and you were 15 doing the drafting on the computer? 16 A: Yes. In the afternoon our secretary 17 was probably there but I tended to draft -- do my own 18 typing and things -- 19 Q: Right. 20 A: -- anyway. 21 Q: Yeah. 22 A: But -- yeah, so -- and -- and 23 certainly there were specifics because you can read the - 24 - the -- what the motion's for, there are specific things 25 referenced to the park, right, as opposed -- so they
1351 wouldn't obviously have been appropriate if we were 2 talking about a blockade, so -- of a road, so we may have 3 pulled the template but it would certainly have been 4 tailored very specifically for this case. 5 Q: Right. Now, I'm interested in 6 paragraph 3, and I -- I wonder if you could take a few 7 moments to read paragraph 3. 8 9 (BRIEF PAUSE) 10 11 Q: And -- sorry, have you finished 12 reading it? 13 A: Yes. 14 Q: Okay. I'm going to ask you some 15 questions about this paragraph 3. I take it you or Mr. 16 McCabe or some combination of you two (2), drafted this 17 paragraph; is that right? 18 A: Yes. 19 Q: And this paragraph says that -- 20 there's a couple of elements to this paragraph and one 21 (1) is that: 22 "If an officer, agent or servant of the 23 Government of Ontario is directed to do 24 so by any minister or deputy 25 minister..."
1361 And let me just pause there. So this 2 envisions a direction from a minister or deputy minister; 3 correct? 4 A: Yes. 5 Q: And that direction would be directed 6 to, basically, an employee of the government; right? 7 A: Yes. 8 Q: And that direction involves removal 9 of protestors belongings from around the park or from 10 within the park; is that right? 11 A: It doesn't say anywhere their 12 belongings, it refers to camping equipment, vehicles, 13 blockages and other things that have been placed in the - 14 - in the road or in the Park. So I don't think it -- it 15 really anticipates who owns those things -- 16 Q: Right. I don't -- 17 A: -- necessarily. 18 Q: -- I don't mean to be technical, 19 belongings, I mean items, camping equipment, vehicles and 20 so forth put in the park or around the park by the 21 protestors; right? 22 A: Yes. Well -- yes. It referring 23 specifically to road or public highway, or an area, sure, 24 yeah. 25 Q: And the last line includes:
1371 "Within or at any entrance to the 2 park." Right? 3 A: Yes. 4 Q: So it also includes in its scope 5 those items which are inside the park; right? 6 A: Yes. 7 Q: And the -- the order has the effect 8 of clothing a minister or deputy minister's instruction 9 with the force and authority of a court order; is that 10 right? 11 A: Yes, it would. 12 Q: And the word 'forthwith' appears, 13 which means that if an employee is directed by a minister 14 to remove some of that material, then the -- then the 15 employee must do so forthwith or immediately by force of 16 the court order, right? 17 A: Yes. 18 Q: Okay. Now, this doesn't talk about 19 removal of the protestors themselves; is that right, 20 paragraph 3? 21 A: Paragraph 3 doesn't talk about that, 22 no. 23 Q: But it certainly talks about all 24 camping equipment, vehicles and all other things that 25 have been placed anywhere by the protestors?
1381 A: Right. Because the other paragraphs 2 deal with the protestors themselves. 3 Q: Yes. 4 A: Yeah. 5 Q: Now, do you -- are you aware of any 6 other orders which refer to or which give court ordered 7 authority to a minister or a deputy minister giving 8 instructions to any employee of the government? 9 A: You know, quite honestly, I can't 10 recall whether or not we would have included this similar 11 order in another injunction. I'd have to look at -- I 12 mean, I guess you could look at the public record and see 13 whether or not it was ever asked for, again, in other 14 cases, but I -- I just can't recall. 15 Q: So, you can't recall. So you don't 16 know of any other cases where this type of paragraph was 17 included in an injunction application? 18 A: I can't recall. 19 Q: Okay. 20 A: Yeah. 21 Q: Now, I think in your evidence in- 22 chief you mentioned that when you were preparing this 23 motion with Mr. McCabe, you sat down and asked, What is 24 required here, what do we need, right? 25 A: Yes.
1391 Q: Right. And we've heard evidence 2 through a taped conversation of Inspector Fox that in the 3 Premier's meeting earlier that day on the 6th, Mr. Fox 4 said to Mr. -- sorry, Minister Hodgson of the MNR said to 5 Mr. Fox: 6 "So if we get an injunction, what is 7 the OPP going to do, sit on it for two 8 (2) weeks?" 9 Now my question to you is, were you aware 10 of that comment or something like it by the time you 11 drafted this paragraph or -- you or Mr. McCabe? 12 A: I -- I've never heard that comment 13 before. 14 Q: Okay. Do you know whether Mr. McCabe 15 was aware of that comment at the time that you prepared 16 this -- these materials? 17 A: I have no idea. 18 Q: Okay. And would you agree with me 19 that this paragraph 3 partially addresses the other half 20 of the injunction equation that we talked about before? 21 Namely implementation of an injunction. 22 Because this paragraph 3 talks not about 23 the protesters themselves, but about removing their 24 possessions from the Park under the direction of the 25 minister, right?
1401 So, that's implementation? 2 A: It certainly addresses partial 3 implementation I agree. Yes. 4 Q: And would you agree with me there's 5 nothing in this paragraph 3 that links it to the first 6 two (2) paragraphs? In other words, there's nothing in 7 paragraph 3 that says, this shall happen only after the 8 protesters are out? 9 A: That's correct, it doesn't say that. 10 Q: That's right. So on its face a 11 minister could say, I want you, MNR employees, to go in 12 and clear out the camping equipment and vehicles and the 13 court has authorized me to do this and I don't care 14 whether the protesters are still in there or not. 15 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 16 Twohig...? 17 MS. KIM TWOHIG: Yes. I'm not sure how 18 this is helpful because she's being asked to speculate on 19 some -- what someone might do or could do under the order 20 and any of us could interpret the order as -- 21 COMMISSIONER SIDNEY LINDEN: Yes, yes. 22 MS. KIM TWOHIG: -- we consider 23 appropriate. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 Questions to what she meant and what she did and she
1411 drafted it. Those are appropriate but other questions 2 are difficult for her. What she intended and what she 3 meant to happen as a result of drafting this, that's all 4 appropriate questioning I think. 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: We've heard evidence that the Premier 8 and you heard Ms. Hutton yourself say, "Premier wants 9 them out in a day or two (2)." 10 Supposing this order was obtained as 11 requested, and it wasn't obtained as requested just the 12 enforcement was stayed, and the Premier as a minister 13 said, I want the MNR employees to go in there and clear 14 out the possessions of the protesters, is there anything 15 in this paragraph that you drafted that would disallow 16 that? 17 A: I just don't think I can speculate on 18 how anybody would interpret the order. 19 COMMISSIONER SIDNEY LINDEN: I don't 20 think so either. I don't think you're getting anywhere 21 with these questions. I don't think -- I mean some 22 interpretation of almost any clause, if it's taken to 23 some extreme, could be absurd. 24 I don't think that, you know, how somebody 25 might interpret this is -- I don't think she has the
1421 ability to answer that. She has the ability to say what 2 she meant or what she intended or what her objective in 3 putting this in and all of those questions. Beyond that, 4 I don't think she can help you. 5 MR. MURRAY KLIPPENSTEIN: Okay. Thank 6 you. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: Did -- do you recall whether -- whose 10 idea was paragraph 3, was it yours or Mr. McCabe's? 11 A: I don't recall specifically who -- we 12 worked pretty collaboratively on these things. 13 Q: Right. And by that you mean you were 14 -- were you effectively typing on the computer while he 15 was sitting beside you and talking and that sort of 16 thing; both of you? 17 A: Yes, we would often do that. 18 Q: Okay. 19 A: We would talk back and forth. I 20 would type, he would talk, I would talk. 21 Q: So, in fact, Mr. McCabe might have 22 dictated this paragraph 3 to you, it's a possibility? 23 A: It's possible. 24 Q: Okay. 25 COMMISSIONER SIDNEY LINDEN: Yes. You
1431 haven't asked her the question. I'm not saying you have 2 to but I'm kind of curious to know what -- why it's 3 there, what her intention was. 4 What was her objection of putting this in 5 there? 6 MR. MURRAY KLIPPENSTEIN Okay. I wasn't 7 meaning to avoid the question. 8 COMMISSIONER SIDNEY LINDEN: No, I mean I 9 think it's a -- you've asked a lot of questions. That 10 one seems -- 11 MR. MURRAY KLIPPENSTEIN Okay. 12 COMMISSIONER SIDNEY LINDEN: -- an 13 obvious one to me. 14 15 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 16 Q: What was your intention? 17 A: Well, my recollection of what our 18 intention of that was that -- that the order -- the first 19 two (2) paragraphs of the order would have -- have the 20 effect of -- of ordering that the occupiers in the park 21 had to leave and then as we've discussed, there are those 22 -- that just by virtue of having this piece of paper, it 23 doesn't necessarily mean that's going to happen. 24 There are steps that have to be taken in 25 order to fulfil that.
1441 So, then this paragraph, although it 2 wouldn't have any effect on whether or not there were 3 people in the park, would have the effect that the 4 blockades, the vehicles and the -- and that's sort of my 5 recollection, is the primary purpose was that so that 6 access to the park could be opened again, immediately. 7 And this could happen immediately, because 8 -- because it -- it would -- it would have the effect of 9 giving me -- giving the minister or deputy minister the 10 authority to tell one of the -- a provincial employee to 11 -- to remove the -- the things that were creating -- that 12 were -- that were denying access to government staff and 13 to ministry staff and to -- and to the public to the 14 park. 15 Q: Well, thank you, and that is, in 16 fact, what I thought the first time I read this order. 17 But I have a few difficulties with that. 18 First of all, isn't it normally part of 19 the MNR staff job to take care of the parks? 20 We've heard about stewardship -- and so 21 cleaning up after the protesters supposedly had left, 22 would be a normal part of their job not requiring a Court 23 Order or a minister's direction. 24 Isn't that fair? 25 A: Sure.
1451 Q: And if the occupiers had left the 2 park or been physically removed from the park, you 3 wouldn't need a court order and ministers authorised 4 directions, including the word "forthwith," to have their 5 employees go in and do their job to clean up afterwards, 6 right? 7 COMMISSIONER SIDNEY LINDEN: Yes? 8 MS. KIM TWOHIG: I'm not sure where this 9 is going or if it's at all relevant. 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MS. KIM TWOHIG: I have a few ideas 12 myself as to why that paragraph is very helpful, I'm sure 13 others might, but whether it's appropriate to elicit -- 14 COMMISSIONER SIDNEY LINDEN: Well -- 15 MS. KIM TWOHIG: -- that from this 16 witness is the issue. 17 MR. MURRAY KLIPPENSTEIN: Well, I'm just 18 -- I'm trying to understand and frankly the -- 19 COMMISSIONER SIDNEY LINDEN: Well, yes, I 20 think -- 21 MR. MURRAY KLIPPENSTEIN: -- the 22 commonsense first impression that I had doesn't stand up 23 to scrutiny and I'm trying to understand and perhaps -- 24 perhaps, you know, Ms. Christie can illuminate why this 25 is here and perhaps she can't.
1461 COMMISSIONER SIDNEY LINDEN: Well, that's 2 what she's trying to do. 3 MR. MURRAY KLIPPENSTEIN: Yes. 4 COMMISSIONER SIDNEY LINDEN: So I think-- 5 MR. MURRAY KLIPPENSTEIN: So my 6 questions -- 7 COMMISSIONER SIDNEY LINDEN: -- as long 8 as she's doing that, it's useful. 9 MR. MURRAY KLIPPENSTEIN: Okay, okay, 10 good. 11 12 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 13 Q: So if I -- my question again is: If 14 the protesters had -- if the protesters were out of the 15 park, pursuant to paragraphs 1 or 2, and the park was 16 empty of protesters, why would you need a court order -- 17 court ordered sanction for minister's directions loaded 18 up with the phrase 'forthwith' to have or enable ministry 19 employees to do what would presume to be just their 20 normal jobs, clean up the mess in the park? 21 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 22 Twohig...? 23 MS. KIM TWOHIG: The question assumes 24 that this paragraph would only be useful after the 25 occupiers had left the park, and there -- it may have
1471 been that it would be useful at another time and I think 2 My Friend should put the full question to the witness. 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 MR. MURRAY KLIPPENSTEIN: Well, I'm happy 5 to put the full question, but I think the question hasn't 6 been answered and it seems to me to be a -- 7 COMMISSIONER SIDNEY LINDEN: It seems to 8 me that it's an appropriate question, and I think it is, 9 so let's move on. 10 But I don't want to spend too much more 11 time on this because I'm not sure how -- well, I don't 12 know, so. 13 MR. MURRAY KLIPPENSTEIN: Well, I -- 14 COMMISSIONER SIDNEY LINDEN: Carry on. 15 MR. MURRAY KLIPPENSTEIN: Okay. 16 COMMISSIONER SIDNEY LINDEN: You've got - 17 - I think you've asked an appropriate question and I 18 think the witness might be able to answer it. 19 If she can, she will; if she can't, she 20 won't. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: Do you want me to repeat the 24 question? 25 A: Yes, please. If I could remember
1481 what the question is, I can answer it, yes. 2 Q: Okay. The question is, again on the 3 assumption that the protesters are out of the park, 4 however that happens, pursuant to paragraph 1 or 2 or 5 some other, why would you need a court -- a powerful 6 court order that clothes a minister's direction to 7 government employees with the force of law to do what he 8 or she says immediately to clean up the objects in the 9 park when that seems to be part of their jobs and the 10 park is empty? 11 A: So my recollection is that in the 12 context -- so we're -- litigator is preparing a motion 13 and -- and a proposed order in the motion, you're trying 14 to foresee the potential eventualities that the court 15 might change. So the court isn't, obviously, always 16 going to give you the order that you ask for. 17 We also, at this point, didn't have a 18 clear understanding of what the claim or the assertion or 19 the demands of the First Nation people that were in the 20 park were. 21 My recollection is that the point of this 22 was to -- to sort of compensate for any possible ongoing 23 claim or assertion of -- of entitlement to the park. So 24 it sort of -- I'm not sure I'm explaining this very well 25 but it sort of closed the loop, if you will, that there
1491 are two (2) purposes to it. 2 One is you get the order and the 3 protestors may not actually leave the park, and then it 4 may take you three (3), four (4), five (5), six (6), 5 eight (8), ten (10), twelve (12) days, or however many 6 days to -- to actually fully execute the -- the order, 7 the -- the actual order for the protestors to leave the 8 park. 9 So, if you can't actually make them leave 10 the park, perhaps you can at least open the park up and 11 you can be in the park, you can have access to the park, 12 you can take the things out of the park and -- and indeed 13 the things that are facilitating the -- the ability of 14 the people to remain in the park can be removed, which 15 may make it less easy to -- to remain there. So, that's 16 sort of one (1) part of it. 17 And the other part of it, and -- and this 18 is my recollection, of course, who knows how anybody 19 might have interpreted this, but my recollection is, the 20 other part of it was, in the eventuality that -- that the 21 -- the group were to put forward a -- an argument that -- 22 that they had -- that they had entitlement to the park 23 and that they had entitlement to have things in the park, 24 that this -- if we could succeed in getting this order, 25 it would actually allow for the park to be emptied out of
1501 the things regardless of what kind of -- of argument 2 might continue on about, say, a land claim or -- or a 3 claim somehow to -- to the park itself. 4 Q: All right. Let's go back to the 5 first explanation that you gave about the possible use or 6 intention of this paragraph. 7 And you talked about how it might be 8 useful if the occupiers are still in the park but some of 9 their possessions are removed from within the park to 10 make it less easy for them to stay there; is that right? 11 A: Yes. And it's not just their 12 possessions. So we had information that there had been 13 trees cut down to block roads, there were vehicles, 14 whether they were the vehicles of the people there or 15 other vehicles that had been -- been put, blocking off 16 roads, there were -- there was stuff on roadways and on 17 access points and things. 18 So -- so that and -- and -- together with 19 camping equipment that they might actually be using. 20 Q: All right. Now, just so you know, I 21 think I've made this clear but the wording of paragraph 3 22 seems to apply both to within the park and outside the 23 park, for example, roads adjacent to the park. I'm 24 talking about now within the park and I believe -- 25 A: Yes.
1511 Q: -- those were your answers. So what 2 you're talking about then is this authorizing by a court 3 of authority, a minister to say, Go in and take their 4 tents, they're using them, but by removing their tents 5 we'll make it less easy for them to stay there, that is 6 within the meaning of what you just said; right? 7 A: That's -- that's a specific aspect of 8 -- of what I believed our intention to be with that 9 paragraph. 10 Q: Okay. 11 A: Yes. 12 Q: Thank you. 13 COMMISSIONER SIDNEY LINDEN: This would 14 be a good time to break? 15 MR. MURRAY KLIPPENSTEIN: This would be a 16 good time to stop. Thank you. 17 COMMISSIONER SIDNEY LINDEN: Thank you, 18 Mr. Klippenstein. 19 THE REGISTRAR: This Inquiry stands 20 adjourned until 1:30. 21 22 --- Upon recessing at 12:15 p.m. 23 --- Upon resuming at 1:32 p.m. 24 25 THE REGISTRAR: This Inquiry is now
1521 resumed. Please be seated. 2 COMMISSIONER SIDNEY LINDEN: Yes, sir? 3 MR. MURRAY KLIPPENSTEIN: Thank you, 4 Commissioner. 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: Dr. Christie, a further followup 8 question has occurred to me regarding the paragraph 3 of 9 the -- the Order as sought, and that's at Tab 19 of your 10 materials in the big binder. 11 A: Yes. 12 Q: First of all the motion was brought 13 as you can see from the front page of the motion record 14 by the Attorney General for the Province of Ontario and 15 the Minister of Natural Resources as Plaintiffs; is that 16 right? 17 A: Yes. 18 Q: But going to paragraph 3 of the Order 19 now, it refers to any Minister or Deputy Minister; do you 20 see that? 21 A: Yes. 22 Q: And I'm suggesting to you that 23 legally or technically, Minister by definition includes 24 the Premier. Can you -- can you confirm that or not? 25 COMMISSIONER SIDNEY LINDEN: Yes? Yes,
1531 Mr. Downard? 2 MR. PETER DOWNARD: We're back to 3 interpreting the Order. I would have thought the 4 appropriate question would be whether this Witness had 5 any intention in that respect. 6 COMMISSIONER SIDNEY LINDEN: Well, I 7 suppose that would be a better way to put it. When you 8 said Minister did you include the Premier? 9 MR. MURRAY KLIPPENSTEIN: I'm not 10 interpreting the Order. I'm asking a legal question 11 which is separate from this Order. This is -- this 12 refers to a Minister. A Minister has a defined legal 13 meaning and that's what I'm asking about. 14 COMMISSIONER SIDNEY LINDEN: Well I'm not 15 sure that she's the Witness you want to ask -- 16 MR. MURRAY KLIPPENSTEIN: She may or may 17 not know. I don't know. 18 COMMISSIONER SIDNEY LINDEN: Well, I'm 19 not sure she's the Witness who would be -- should be 20 asked this. I don't know. Ms. Twohig, did you have a 21 reason to object on this? I'm not -- 22 MS. KIM TWOHIG: It was just because My 23 Friend said that he was putting a legal question to the 24 Witness and I was concerned that she's not here as an 25 expert witness.
1541 COMMISSIONER SIDNEY LINDEN: No, I know. 2 MS. KIM TWOHIG: Although in terms of her 3 intentions and putting this paragraph in, again I have no 4 problem. 5 COMMISSIONER SIDNEY LINDEN: I guess you 6 could ask to what her understanding of the term is. 7 MR. MURRAY KLIPPENSTEIN: All right. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: Do you know, do you have a view, Ms. 11 -- Dr. Christie, on whether a Minister in the 12 Governmental legal sense would include the Premier? 13 Is the Premier a Minister in your -- 14 A: I can tell you that I can't recall 15 whether or not I put my mind to that, to whether the word 16 Minister in drafting this paragraph whether the word 17 Minister also referred to the Premier. I can't -- I 18 don't recall whether or not I put my mind to that. 19 Q: Okay. Let me put a hypothetical 20 question to you on the assumption that the -- that the 21 Premier is technically a Minister. 22 On that assumption, would you agree with 23 me that once the court has made this Order, that Premier 24 Harris could direct with the added authority of a court 25 order, any government employee to enter the Park
1551 forthwith to carry out the described activities? 2 MR. PETER DOWNARD: Again, I don't intend 3 to -- I don't want to belabour it -- 4 COMMISSIONER SIDNEY LINDEN: You have to 5 belabour it and make the point. Do you want to make the 6 point? Make it. 7 MR. PETER DOWNARD: Yes, My -- My Friend 8 is asking for an interpretation of the Order rather than 9 her recollection of what her understanding or intent was 10 at the time. 11 COMMISSIONER SIDNEY LINDEN: Yeah. I 12 think we've decided, Mr. Klippenstein, that you're 13 entitled to ask her what she intended and not what others 14 might have interpreted. 15 MR. MURRAY KLIPPENSTEIN: All right. 16 I'll withdraw the question. Thank you. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER SIDNEY LINDEN: It certainly 22 opens you to make that argument when the time comes. 23 MR. MURRAY KLIPPENSTEIN Oh, what the 24 heck, I'll just forget the whole thing. 25 COMMISSIONER SIDNEY LINDEN: No, I don't
1561 think you will. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: Ms. Christie, I wonder if you could 7 turn in the binder I've provided of extra documents, to - 8 - I apologize, one moment, I believe it's Tab 6 which is 9 the Minister's briefing form and additional attachments, 10 which is Exhibit P-549. 11 Now, I'm not going to ask you about the 12 briefing form itself, but attached to it is Inquiry 13 Document Number 1011745, is a memo called, Criminal and 14 Civil Proceedings to Terminate the Occupation of 15 Ipperwash Provincial Park by the Stoney Pointers. 16 A: Yes. 17 Q: And I confess I can't remember if, 18 in-chief, My Friend put this to you but -- 19 A: Yes. 20 Q: Okay. And it's my understanding that 21 you, presumably in collaboration with Mr. McCabe and 22 perhaps Mr. Hutchison, and to some extent Ms. Jai, worked 23 on the material under the heading, Civil Proceedings, on 24 page 2; is that right? 25 A: That's right.
1571 Q: Now, I'd like to draw your attention 2 to the last paragraph of that page, and it refers to an 3 ex parte injunction and in the second line it says: 4 "This does not appear to be a case for 5 an ex parte injunction." 6 Do you see that? 7 A: No, I'm not -- I'm -- 8 Q: I apologize, it's the -- 9 A: -- in the wrong place. 10 Q: It's the last paragraph on page 2, 11 the second line of that paragraph. 12 A: Yes. 13 Q: "This does not appear to be a case 14 for an ex parte injunction." 15 Right? 16 A: Yes. 17 Q: And that's pretty much what Mr. 18 McCabe said in the meeting on the morning of September 6 19 at the IMC, right? 20 A: Yes. 21 Q: Now, in the next paragraph, the memo 22 continues, 23 "Apart from the difficulty of 24 persuading the Judge that there is 25 urgency, there is [I believe that
1581 should say] in an ex parte, Motion an 2 obligation to Counsel to see that full 3 and frank disclosure is made of all 4 material facts, and failure to do so 5 will almost always result in the 6 injunction being set aside as a 7 punitive measure on the Motion to 8 continue once the Defendants have been 9 served. 10 That risk is a serious one where, as in 11 this case, we don't know the facts, if 12 any, on which the occupiers will rely." 13 At the time when this memo was drafted, I 14 take it from the evidence that it appeared unlikely that 15 you would be proceeding with an ex parte injunction? 16 At least that wasn't the recommendation 17 coming from the legal group, including Mr. McCabe. 18 A: It wasn't the legal -- it wasn't the 19 recommendation, but I -- whether it was the anticipated 20 course, I -- is a different issue. 21 Q: Okay. Now -- well, let me ask you 22 about that. Do you recall whether or not you 23 anticipated, on the 5th, actually being requested to 24 bring an ex parte Motion? 25 A: Well, by the end of the meeting on
1591 the 5th, we certainly had a sense that -- certainly Ms. 2 Hutton was expressing a sense of urgency on behalf -- on 3 behalf of the -- of the -- of the Premier and at least 4 that, if not others and we certainly had talked about the 5 options. 6 I can't remember exactly the specifics. 7 We'd have to go back to the notes and so on of exactly 8 when things were spoken about, but -- but the two (2) 9 certainly knew we were thinking along the lines of urgent 10 motion. 11 And so then the two (2) main options were 12 either an interim one with an abridgment for -- of the 13 time for service, or a request for the abridgment of time 14 for service, or an ex parte injunction. 15 So, it was certainly -- 16 Q: So you dealt with it here because it 17 was part of the picture? 18 A: Yes. 19 Q: Okay. 20 A: And it's the fastest way, so -- 21 Q: Yes. 22 A: -- we had to -- 23 Q: When you got instructions from Mr. 24 Taman on the afternoon of the 6th to seek an injunction 25 that afternoon which would be of necessity, ex parte, and
1601 then when you prepared the Motion for Sarnia later that 2 evening, that was also technically ex parte, correct? 3 A: Yes. 4 Q: So I am wondering whether -- well, 5 first of all, when you go ex parte, whether it's the 6 afternoon of the 6th in Toronto or the evening or the 7 morning of the 6th or the 7th in Sarnia, when you go ex 8 parte the law puts an additional burden on the party or 9 the counsel of full and frank disclosure, as you've 10 described it or as this memo describes it, right? 11 A: Yes. 12 Q: Now, when you were preparing these 13 materials with Mr. McCabe -- Mr. McCabe was a much more 14 senior lawyer than you I take it, correct? 15 A: Yes. 16 Q: Yeah. Did he ever discuss with you 17 that obligation of full and frank disclosure and say, 18 Because we are now going ex parte we have to deal with 19 this? 20 A: Well, it wasn't a teaching point. 21 And -- 22 Q: No. 23 A: -- I knew -- we both knew that -- 24 Q: Right. 25 A: -- at the time. And so the
1611 discussion would have been, How do we go about that. And 2 the decision was, We put in an affidavit of the 3 Superintendent, who's the most closely associated 4 government official, and we get viva voce evidence of the 5 police officers who -- or police officer who -- who has 6 first-hand knowledge of -- of more of the details. 7 And that was our -- that was our answer to 8 how to provide the court in the best way that we knew 9 how, with full and frank disclosure of everything that we 10 knew at that point. 11 Q: All right. Except that was a problem 12 for the afternoon of the 6th because there was no way a 13 police officer could testify when it was being considered 14 for an ex parte motion on the 6th; isn't that right? 15 A: We didn't know that, no. We didn't 16 know that it was an impossibility. 17 Q: How -- was there -- how would you 18 have got a police to testify on the afternoon of the 6th 19 on a ex parte motion? 20 A: We -- 21 COMMISSIONER SIDNEY LINDEN: Just a 22 minute. Just a minute. Yes...? 23 MS. KIM TWOHIG: I just question whether 24 this is relevant because that's not, in fact, what 25 happened.
1621 COMMISSIONER SIDNEY LINDEN: Well, that's 2 not what happened but I'm not sure how helpful it is. 3 MR. MURRAY KLIPPENSTEIN: I'll -- I'll 4 not pursue this for now. 5 COMMISSIONER SIDNEY LINDEN: You're 6 building hypotheticals on hypotheticals as far as this 7 afternoon of the 6th is concerned. 8 MR. MURRAY KLIPPENSTEIN: I'll address 9 where necessary but my clients obviously were concerned 10 about a court order being sought ex parte that involved 11 their treaty rights and so forth. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. MURRAY KLIPPENSTEIN: I won't get 14 into it now. 15 COMMISSIONER SIDNEY LINDEN: I understand 16 that. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 21 Q: Ms. Christie, if you could turn, in 22 your binder, to Tab 9, which are your notes of September 23 5th, and go to the page that has your doodles on the top 24 of it. 25
1631 (BRIEF PAUSE) 2 3 Q: Do you have that? 4 A: The one with the portrait? 5 Q: Yes. Portrait is it? 6 COMMISSIONER SIDNEY LINDEN: We're not 7 going to ask who it is. 8 THE WITNESS: No. I couldn't tell you. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: I'm not sure Inspector Fox would be 12 too pleased. At the bottom of that page, as you've 13 described or discussed in evidence in-chief, you have a 14 two (2) line comment which is asterisked, correct? 15 A: Yes. 16 Q: And that says: 17 "Strategic imperative. This government 18 treats non-Aboriginal people and 19 Aboriginal people the same." 20 Right? 21 A: Yes. 22 Q: And I believe you testified that was 23 a comment made by Ms. Hutton? 24 A: Yes. That's my best recollection, 25 yes.
1641 Q: And I -- I take it that when Ms. 2 Hutton was speaking, you understood that to be her 3 speaking as a spokesperson for the Premier or with the 4 authority of the Premier; is that right? 5 A: Certainly -- certainly as the 6 representative of the Premier, yes. 7 Q: Right. And you mentioned that you 8 were unnerved when you heard that and that you were 9 startled; is that right? 10 A: Yes. 11 Q: Can you describe that in any more 12 detail, how you felt? 13 A: I think I -- I don't know that I can 14 give you anymore detail than I did yesterday, that I -- I 15 felt -- 16 Q: All right. You said that that 17 comment demonstrated an unnerving ignorance of 18 Constitutional Law. 19 COMMISSIONER SIDNEY LINDEN: She's 20 already -- 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: And that there are laws that require 24 that we do treat natives differently in certain 25 circumstances; is that right?
1651 A: Yes. 2 COMMISSIONER SIDNEY LINDEN: Those are 3 the questions that she was asked yesterday and those are 4 the answers she gave. Now I assume you're going -- 5 MR. MURRAY KLIPPENSTEIN: Yes. 6 COMMISSIONER SIDNEY LINDEN: -- somewhere 7 else with this. 8 MR. MURRAY KLIPPENSTEIN: Yes. Yes, I 9 am. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: And I -- you referred to that as 13 "unnerving ignorance of Constitutional Law," right? 14 Now, however, at this point, people from 15 the Premier's office, according to the evidence, had been 16 pretty thoroughly briefed on Native issues including by 17 Julie Jai and others; do you have knowledge of that? 18 A: They certainly had been briefed on 19 it. 20 Q: Right. And had you -- I believe 21 participated in one of the briefings? 22 A: At least one, yes. 23 Q: Yeah, at least one. 24 A: Yeah. 25 Q: And Guy Giorno of the Premier's
1661 office had been there? 2 A: Yes. 3 Q: Yeah. And do you know if Ms. Hutton 4 had sat in on that as well? 5 A: I believe she did but I can't 6 remember for certain. 7 Q: Now I don't know if you meant to 8 refer or to categorize this position described as a 9 strategic comparative as a position of ignorance. But I 10 suggest to you, based on what you saw and heard, that 11 that position is also consistent with political 12 opposition to Native rights in general. 13 Is that fair? 14 A: I don't think I can really comment on 15 that. 16 Q: All right. 17 A: I'm not sure -- maybe I'm just not 18 following the question. 19 Q: Okay. Well you said when you heard 20 the comment that this government treats Aboriginal -- 21 treats non Aboriginal people and Aboriginal people the 22 same that you found this to be unnerving ignorance of 23 Constitutional Law, right? 24 A: Yes. 25 COMMISSIONER SIDNEY LINDEN: He's just
1671 getting ready. 2 MR. MURRAY KLIPPENSTEIN: I don't like My 3 Friend lurking in the background here. 4 COMMISSIONER SIDNEY LINDEN: He's just 5 getting ready. 6 MR. PETER DOWNARD: I'll make a valid 7 point. The question My Friend was -- was putting before 8 was inviting editorial comment retrospectively and what 9 was said at the time. 10 And it -- it seems to me that the 11 appropriate -- and I would submit that the appropriate 12 questions go to what this Witness' understanding and 13 intention was at the time. 14 COMMISSIONER SIDNEY LINDEN: I think 15 that's right. Yes. 16 MR. MURRAY KLIPPENSTEIN: I will -- my 17 question relates to an interpretation of the facts which 18 My Friend saw and her understanding of it and to some 19 extent I'm challenging her stated understanding of the 20 fact she saw. And I want to put those questions to her. 21 COMMISSIONER SIDNEY LINDEN: Well. 22 MR. MURRAY KLIPPENSTEIN: That's what I'm 23 doing. And if so if I -- I'll put the question and if 24 I'm in error, hopefully I'll be corrected. 25 COMMISSIONER SIDNEY LINDEN: Yes.
1681 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: When you -- you saw and heard the 4 spokesperson for the premier say that this government 5 treats Aboriginal and non Aboriginal people the same, you 6 referred to that as unnerving ignorance of Constitutional 7 Law. 8 But I'm putting to you, as an 9 interpretation of what you saw and heard, that that's 10 also consistent with political opposition to native 11 rights in general. 12 COMMISSIONER SIDNEY LINDEN: I think you 13 just asked the same question that you -- 14 MR. MURRAY KLIPPENSTEIN: I did and well 15 my point -- 16 COMMISSIONER SIDNEY LINDEN: Well, I 17 don't think it's a proper question in the circumstances. 18 MR. MURRAY KLIPPENSTEIN: And in my 19 submission, what I'm -- what I'm doing is challenging, if 20 you will, the Witness' interpretation of what she saw and 21 heard. 22 COMMISSIONER SIDNEY LINDEN: What she 23 thought at the time when she wrote it. That would be 24 helpful if she thought that the -- 25 MR. MURRAY KLIPPENSTEIN: But my -- the
1691 Witness -- 2 COMMISSIONER SIDNEY LINDEN: It's not 3 what she's interpreting it now. 4 MR. MURRAY KLIPPENSTEIN: Well the 5 Witness has testif -- testimony, as I understood it 6 yesterday, was in -- and this is in relation to a 7 question from Commission counsel -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. MURRAY KLIPPENSTEIN: -- that it 10 stuck in her mind because it demonstrated an unnerving 11 ignorance of Constitutional Law. And I -- 12 COMMISSIONER SIDNEY LINDEN: That's what 13 occurred to her at that moment I gather that -- 14 MR. MURRAY KLIPPENSTEIN: Yes. 15 COMMISSIONER SIDNEY LINDEN: -- I 16 gathered that was the way -- the reason she answered it 17 that way. Now you're asking, here now, what she might 18 interpret it to mean now or what -- and I'm not sure that 19 it's helpful at this stage. We can all interpret it. 20 There may be other interpretations as well. 21 22 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 23 Q: Well I want to ask you, Dr. Christie, 24 when you said that it unnerved you as ignorance of 25 Constitutional Law, is it fair to say that at that time,
1701 there was more to its impression on you than merely a 2 view of ignorance of constitutional law? 3 It may have been that, but you were 4 speaking and hearing -- you were speaking with and 5 hearing from the representative of the Premier of Ontario 6 and you knew, as a lawyer, something or two about 7 constitutional law and native rights. 8 And isn't it fair to say that whatever you 9 may have thought of ignorance, you believed that the 10 Premier's office actually wasn't entirely ignorant of 11 constitutional law, and that there was more to it than 12 ignorance? 13 Isn't that also part of what would have 14 struck you at the time? I mean, you knew -- sorry, go 15 ahead. 16 A: Well, I think it's fair to say that I 17 -- that part of my surprise at this comment was that I 18 didn't expect the rep -- the -- the representative of the 19 Premier to be demonstrating or making a statement that, 20 to me, demonstrated ignorance of constitutional law. 21 So, I -- that certainly added to my 22 surprise, because I wouldn't have thought that -- that 23 she ought to have had that, what I interpreted as a level 24 of ignorance. 25 Q: All right. So, there was no doubt in
1711 your mind at the time that Aboriginal people and non- 2 Aboriginal people don't have identical rights, and that's 3 rooted in history and agreements and treaties and so 4 forth. 5 There was no doubt in your mind at that 6 time, right? 7 A: That's correct. It's a complicated-- 8 Q: Right. 9 A: -- body of law, but it -- 10 Q: Right, but -- 11 A: -- if you simple it down to that, 12 yes. 13 Q: And those differences, and you knew 14 this at the time, are not a matter of difference of 15 political opinion, those are matters of established law 16 and constitutional principle, correct? 17 A: Yes, and I think that's what -- 18 Q: Yes. 19 A: -- my comment was yesterday, that it 20 was -- made me concerned about the ignorance of 21 constitutional law was -- it was a -- 22 Q: Right. And when you say the 23 Premier's office seemed to be ignorant of constitutional 24 law, isn't a bit far fetched to say that they were 25 ignorant of constitutional law?
1721 A: I didn't actually say that, right? I 2 mean I -- what I said was -- 3 Q: Yes. 4 A: -- that this -- that the reason that 5 this statement alarmed me was that it was indicative of a 6 level of ignorance of constitutional law, so -- 7 Q: And why did you think it was 8 ignorance as opposed to political opposition to native 9 rights? 10 A: Because -- I guess because -- because 11 at the time, in the meeting no one had said anything that 12 would make me believe at that moment that -- that it was 13 a matter of opposition of Aboriginal rights. 14 I'm not expressing myself very well. I 15 guess, because as a -- as a lawyer and a public servant 16 and a representative of the -- you know, sort of, a legal 17 representative of the Crown, my particular concern is -- 18 is the role of -- was -- was at the time sort of 19 upholding -- upholding the law and -- and endeavouring in 20 the part -- in the way that I was able to ensure that the 21 rule of law was -- was upheld and that the constitution 22 was upheld. 23 So, you know, I can -- I don't really 24 think that -- 25 Q: And --
1731 A: -- my -- my, sort of view of what the 2 -- what the politics of -- of the Harris government was I 3 don't think's really -- it's not -- 4 Q: So, you're -- 5 A: -- not really what I was thinking 6 about at the time. 7 Q: So, your issue wasn't a political one 8 or a political difference of opinion, it was rooted in 9 your belief as a lawyer, in the rule of law and 10 constitutional law? 11 A: That was -- that was my primary 12 concern around this comment. I mean, I don't think it 13 would be any surprise that -- that -- and certainly the 14 other comments that Deb Hutton had made at the time 15 suggested that this -- that this administration took a 16 very different approach to Aboriginal issues and -- and I 17 don't think -- 18 Q: And but what you -- 19 A: -- that's -- 20 Q: -- what you saw here and reacted to 21 was not just a different approach of a newly elected 22 government with different policies. 23 You were responding what you saw as some - 24 - saw a problem with the actual adherence to the rule of 25 law; isn't that fair?
1741 A: This comment gave rise to concern 2 about that, yes. 3 Q: Okay. And why did you, as you said, 4 ascribe that -- that difficulty or concern to ignorance 5 as opposed to ascribing it to a strategy of consciously 6 disregarding the legal and constitutional rights of 7 Native people? 8 A: I don't know. Maybe I'm optimistic 9 or something, I don't -- I don't know. That was -- 10 that's my -- that was my sense of it at the time, was, 11 Holy smokes, how can these -- how -- how can these people 12 be so ignorant of the constitutional law, that Deb Hutton 13 would say something like this. That was my reaction, I 14 can't, sort of, elucidate it anymore than that, really. 15 Q: Thank you very much, Dr. Christie. 16 Thank you, Commissioner. Those are all my questions. 17 COMMISSIONER SIDNEY LINDEN: Thank you, 18 Mr. Klippenstein. 19 Mr. Rosenthal...? 20 I'm sorry, I've forgotten how much the 21 time estimate Ms. Esmonde made yesterday. I'm going to 22 ask you what was the time estimate that Ms. Esmonde gave 23 us? 24 MR. PETER ROSENTHAL: I believe Ms. 25 Esmonde's estimate, on my behalf, was an hour and a half
1751 (1 1/2) to two (2) hours. I hope I'll be more 2 expeditious than that. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 MR. PETER ROSENTHAL: I just lost 5 everything on my computer so I'll see what happens with-- 6 COMMISSIONER SIDNEY LINDEN: Well then 7 you're going to be a lot shorter. 8 MR. PETER ROSENTHAL: I got it back. I'm 9 sorry, Mr. Commissioner. 10 11 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 12 Q: Good afternoon. Good afternoon, Dr. 13 Christie. 14 A: Good afternoon. 15 Q: My name is Peter Rosenthal. I'm one 16 of the counsel on behalf of a group of Stoney Point 17 People under the name Aazhoodena and George Family Group. 18 One (1) thing, you told Mr. Klippenstein 19 that you would have made notes as you worked on preparing 20 the injunction application on September 5 and 6, right? 21 A: I expect so, yes. 22 Q: And you would have made a fair number 23 of notes, I gather, in the course of that preparation; is 24 that fair to say? 25 A: Well, in the context of this case,
1761 I'm actually not sure how many notes, because there 2 wasn't a lot of time to be doing a lot of notes before I 3 was actually creating things on the computer. So, it was 4 probably more a matter of going straight to the drafting 5 stages of things. 6 Q: Well, whatever notes you did make, 7 what would you have done with them; would you have had a 8 file labelled, Ipperwash? 9 A: Yes. 10 Q: And you would have put those notes 11 into that file? 12 A: Yes. 13 Q: And you wouldn't have destroyed any 14 of it? 15 A: No. I left all of those notes with - 16 - with Crown Office Civil when I left. 17 Q: And you would have had notes relating 18 to Ipperwash from September 5 and 6 and subsequently; is 19 that correct? 20 A: Yes. 21 Q: And would it -- do you recall, was it 22 all one (1) folder of notes that you had? 23 A: Typically, I had -- typically, I had 24 a -- a file folder, so the file was called "Ipperwash"; 25 a, sort of, a big expandable folder. And then I would
1771 have different coloured file folders within it, one (1) 2 was called "Correspondence," one (1) will be called 3 "Research," one (1) will be "Pleadings," and so on. 4 And so my handwritten notes would 5 variously be contained in the Correspondence brad 6 (phonetic) and in the Research brad. 7 Q: So there would be what we might call 8 a master file and then some sub-files -- 9 A: Yes. 10 Q: -- in that file? And there would 11 have been one (1) such master file for Ipperwash for all 12 your work with respect to Ipperwash over the time you 13 were in that capacity; is that correct? 14 A: Yes. 15 Q: And you didn't take any of it with 16 you when you left the employment of the Province? 17 A: That's right. That's my 18 recollection. Now, the -- the notes from 1993 might have 19 been in a separate file, I'm not sure. 20 Q: I see. 21 A: And -- and some -- because Mr. McCabe 22 and I worked on so many files together, occasionally we 23 would maintain the master file in -- in his sort of 24 possession and my things would go directly into that file 25 or maybe in separate sub-folders and so on, but --
1781 Q: Yeah. So, some of your notes could 2 have ended up in his file -- 3 A: But I-- 4 Q: -- perhaps? 5 A: -- most of them would have been in 6 mine. Certainly, around this period of time, my -- my 7 notes would have been filed in my Ipperwash file, yes. 8 Q: And you have no information as to 9 what happened to those notes after you left the employ of 10 the Province? 11 A: No. 12 13 (BRIEF PAUSE) 14 15 Q: Now, dealing with a small issue but 16 in response to a question from Counsel for the OPP you 17 told us that on September 7 was the first time that you 18 ever saw Officer Mark Wright; is that correct? 19 A: Yes. I think that's true. 20 Q: And -- 21 A: I mean, I don't remember ever meeting 22 him before that. 23 Q: And she -- she elicited from you that 24 you described him seeming wired. You -- 25 A: Yes.
1791 Q: -- recall that answer? And she 2 suggested that that was consistent with fatigue, and you 3 answered that yes, it might be consistent with the 4 fatigue, right? 5 A: It might be. 6 Q: Now, we have some -- I'd like to put 7 a little bit of what we know about Mark Wright to you, 8 very briefly. 9 We know that, for example, on the night 10 before he had said to the incident commander before it 11 was decided whether or not they would march towards the 12 Park, he said, Let's just go get those fucking guys, and 13 then we also know that about 8:00 p.m. that evening, he 14 said, We're going to war now, in anticipation of moving 15 against the people in the Park. 16 Now, would you agree that his being wired, 17 as you observed, could be consistent with him being 18 adrenalized with the notion that he was fighting a war 19 against these native people? 20 A: Well, I'm not sure why he was -- I 21 mean, well, I can tell you certainly it seemed obvious to 22 me that a good part of why he was, or at least why he 23 seemed agitated and -- and wired as I said earlier the 24 next day, was -- seemed from the things he was saying and 25 the way he was behaving, at least in part because of the
1801 events that actually transpired that night. 2 So, I can't comment on whether it's -- 3 whether he would have been like that had Dudley George 4 not been killed. I have no idea what he would have been 5 like. 6 Q: Right. And you never saw him any 7 other time, so you don't know what his standard base line 8 demeanour would have been -- 9 A: No. 10 Q: -- either? 11 A: No. 12 Q: Now, prior to September of 1995, 13 dealing with the issue that arose just now with Mr. 14 Klippenstein's examination, this unnerving ignorance of 15 constitutional law, as you characterized it, or perhaps 16 people might characterize it differently, as Mr. 17 Klippenstein suggested others might, but were you aware 18 of concerns among civil servants, in ONAS or otherwise, 19 about the Harris government in that respect prior to 20 September 1995, arising out of any earlier incidents, 21 with respect to native issues? 22 A: What -- which -- what types of 23 concerns, I'm not sure what you mean? 24 Q: Well, I -- I don't know much about 25 this myself, and I thought you might know, that
1811 apparently there was some issue with respect to Temagami 2 that arose a month or so earlier and there were concerns, 3 at least among some civil servants, I gather that what 4 Premier Harris said in response to that indicated, let's 5 say, some problem with his understanding of Aboriginal 6 issues. 7 Are you aware of any such aspect? 8 A: I certainly recall a dramatic change 9 in approach towards Aboriginal issues on -- on -- on many 10 fronts and -- and deeply involved in the Temagami issue 11 as I was, I don't recall the specifics of -- of what he 12 said. 13 I do recall that there was a change in 14 policy with respect to that file as well. 15 Q: And do you recall you or other people 16 being concerned about the attitude of the Government in 17 that respect, with respect to the Temagami file? 18 A: I -- I don't recall being 19 specifically concerned from a legal point of view. 20 Q: I see. 21 A: Yeah. 22 Q: Okay. With respect to -- briefly, 23 with respect to the September 5 and 6 meetings that you 24 attended in 1995, I'd like to read to you something from 25 the testimony of Ms. Jai with respect to conclusions she
1821 made in part with respect to that meeting, and ask if you 2 agree with them. 3 So when she testified here on September 4 14, at pages 24 and 25 of that transcript: 5 "I would say that there were two (2) or 6 three (3) reasons why we were not able 7 to appoint a facilitator/negotiator." 8 This was the Interministerial Committee 9 meetings. 10 "Q: Okay. And what are the reasons 11 in your view? 12 A: One of them was the sense from the 13 impression that we got from Deb Hutton 14 that the Premier wanted very immediate 15 action and wanted the occupiers removed 16 within a day or two (2). 17 So that was one reason that made it 18 difficult. 19 The second reason was that we were told 20 that, again, that the Premier's office 21 or the Government of the day did not 22 want this viewed as an Aboriginal 23 issue. 24 So they didn't want to appoint, for 25 example, someone from ONAS because that
1831 would bring it into sort of a land 2 claims or all of those kinds of 3 issues." 4 So would you agree that those were two (2) 5 of the reasons that the Committee was unable to turn its 6 attention, even, to appointing a facilitator/negotiator? 7 A: Yes, I'd agree with that. 8 Q: And were you concerned that the 9 Committee was unable to -- to attend to try to appoint a 10 facilitator/negotiator because, were you concerned that 11 that would have been one way to try to prevent violence 12 in an occupation of this type? 13 A: Yes, I was certainly concerned at the 14 -- at the inability of the Committee to appoint a 15 facilitator. I thought -- personally, I felt that that 16 would be the -- the right approach. 17 Q: Thank you. Moving very quickly 18 through each of these issues because we're very time- 19 pressed. If we had more time I would ask you more about 20 each of these, but. 21 Now, moving on to your preparation of the 22 injunction application and related issues. 23 You were a relatively junior lawyer at the 24 time? 25 A: Yes.
1841 Q: And Mr. McCabe was a very senior 2 lawyer at the time -- 3 A: Yes. 4 Q: -- is that correct? And so I would 5 suggest to you he undoubtedly would have dominated any 6 decision-making with respect to the injunction 7 application; is that fair? 8 A: Yes. 9 Q: Now, I do want to ask you briefly 10 about a matter that Mr. Klippenstein asked you about, at 11 Tab 19, the paragraph 3 of the order. So Tab 19 is the 12 motion record, and that's also Exhibit P-551 for these 13 proceedings. At page 7 thereof, has paragraph 3 -- 14 A: Yes. 15 Q: -- that was put to you earlier. 16 A: Yes. 17 Q: Now, with -- this paragraph, I would 18 suggest to you, seems rather odd in several respects. 19 One way, it seems to be saying that it's ordering that 20 people do their job; is that a fair summary? 21 A: Well I think I described earlier how 22 I thought it varied from -- from that, strictly speaking. 23 I mean, I would agree, in -- so in the absence of any 24 kind of assertion or claim or -- or legal status or 25 something, then yes.
1851 I mean, it's -- in the order and course of 2 things it would be simply stating the status quo but I 3 think I already explained why I -- why we decided -- my 4 recollection of why we decided to put it in. 5 Q: Yes. Well -- well, I'd like to 6 explore that further. And of course -- 7 A: Hmm hmm. 8 Q: -- it's ten (10) later, and I 9 appreciate and we all appreciate that you may not recall 10 details about any aspect of this. But I'll ask you a 11 question that Mr. Klippenstein decided not to ask you 12 towards the end of his examination. 13 Was it the intention of such an order to, 14 among other things, give Premier Harris the power to 15 order crown employees to remove possessions of the 16 occupiers from the Park? 17 A: So -- so, as I mentioned earlier, I - 18 - I honestly cannot say whether or not I put my mind to 19 whether or not this would apply to the Premier. 20 Now, Tim -- 21 Q: Okay. 22 A: -- McCabe might have. I just can't 23 recall, I can't tell you whether or not I put my mind to 24 that. 25 Q: Okay. Was it the intention of this
1861 order to, among other things, empower the Minister of 2 Natural Resources to order Crown employees to remove the 3 possessions of the occupiers from the park? 4 A: My recollection is that that was sort 5 of the primary player, the Minister of Natural Resources 6 or the Deputy Minister of Natural Resources was the 7 primary player that, in my recollection, that we were 8 focussing on providing, if we were successful in 9 obtaining, that this would be an order providing that -- 10 the Minister with that -- with this power. 11 Q: Yes. So it -- it was within what was 12 contemplated at the time, that you wanted to empower the 13 Minister of Natural Resources to instruct Crown employees 14 to remove possessions of occupiers from the Park? 15 A: Yes. And we also left it wide 16 enough, using Minister and Deputy Minister -- 17 Q: Yes. 18 A: -- to encompass others in -- in case 19 there were circumstances that we hadn't sort of thought 20 of that were -- might be useful or appropriate for 21 another minister or deputy to be making those comments. 22 Q: And do you recall the extent to which 23 you were aware of whether or not the Minister of Natural 24 Resources requested that he be given such power? 25 A: I don't recall that, no.
1871 Q: And it was intended, was it not, that 2 if the injunction was granted the Minister of Natural 3 Resources, in particular, would be able to exercise that 4 power, independent of and in addition to, any power -- 5 other powers of enforcement that may have been done by 6 the OPP or the Sheriff's office or whatever; is that 7 correct? 8 A: I think you're -- yeah. I think, if 9 I'm understanding, you're essentially restating what 10 we've -- that that was sort of our goal in that -- 11 primary goal in that order. 12 Q: Now in your discussions with Mr. 13 McCabe about this paragraph, if you can recall, were 14 there any concerns expressed about the fact that this 15 paragraph would seem to bind servants of the Crown, 16 whereas those servants had no opportunity to appear on 17 this injunction, to be served or to participate in any 18 way, unless they were being made liable for contempt of 19 court for certain matters. 20 A: I don't recall that discussion, no. 21 Q: And do you recall whether this 22 paragraph was discussed with Mr. Taman at all? 23 A: No, I don't recall that. 24 Q: Okay. Is it -- is it possible that 25 some of your notes might have information about how this
1881 paragraph came to be in the motion record? 2 A: I don't know. I honestly can't 3 remember whether -- 4 Q: No, certainly. 5 A: Yeah. Yeah. 6 Q: I won't necessarily take you to it 7 again in the interest of time, but you recall you were 8 taken by Mr. Klippenstein and I think earlier in your 9 examination as well, to a document entitled, "Criminal 10 and Civil Proceeding to Terminate Occupation," or 11 whatever and the -- 12 A: Yes. 13 Q: -- rather cogent, I would suggest, 14 explanation as to why an ex parte injunction was not 15 appropriate. And you and Mr. McCabe together drafted 16 that portion of that document; is that correct? 17 A: That's my recollection, yes. 18 Q: And then you were told -- you've told 19 us that you should -- by Mr. Taman, that you should apply 20 for an injunction as quickly as you possibly can get it, 21 correct? 22 A: Yes. 23 Q: Well it's hard to interpret those 24 words "As quickly as you can possibly get it," by doing 25 what, that you're suppose to -- you're suppose to remain
1891 within the law presumably, right? 2 A: Absolutely. 3 Q: And you're suppose to -- I mean 4 you're not -- you can't go up to a judge and say, If you 5 don't sign this we're going to shoot you, right? Not 6 that quick. You can't run into a courtroom and say, This 7 is a big emergency, you have to interrupt whatever's 8 going on and grant this injunction. 9 I would suggest that you wouldn't do 10 anything bizarre like that, right? 11 A: No. What -- what -- I mean what I -- 12 what I was trying to express earlier is that I had this 13 discussion with Mr. Taman and -- and he conveyed his 14 sense of urgency of getting this done by saying get this 15 -- we want you to apply for an injunction as fast as you 16 possibly can and -- and today if possible. 17 So -- so I call the trial coordinator in 18 Toronto and so on and see if you could set that up and 19 because I think there's this way through the rules you 20 can do it and so I looked into that and -- and carried 21 on. 22 So that -- so it was entirely within -- 23 within the context of -- of what's allowable within the 24 rules and within the -- 25 Q: Yes.
1901 A: -- the process guidelines and so on 2 that -- and that's -- those are the steps that we took. 3 Q: Right. But on the other hand you and 4 Mr. McCabe had come to the conclusion that an ex parte 5 injunction was not really appropriate in the 6 circumstances as -- as we saw you clearly wrote that. 7 So there must have been some discussion 8 and I appreciate it's ten (10) years later. But there 9 must have been discussion involving Mr. Taman or others 10 as to, given your clear view about the ex parte 11 injunction, as to whether the appropriate way to proceed 12 then would be on a short notice injunction, as opposed to 13 ex parte. 14 And whether Friday would be good enough to 15 satisfy as quickly as possible, given the circumstances, 16 no? 17 A: Yes. So -- there were certainly -- 18 there were those discussions. I think that the -- some 19 of those discussions -- well lots of those discussions I 20 wasn't party to and the inf -- the advice that we had -- 21 Q: I'm sorry, you said some of the 22 discussions you were not party to. 23 A: I was not party to, sure. 24 Q: Yes. 25 A: So -- so the information that we had
1911 provided to the Interministerial Committee, by the end of 2 the meeting on the 6th, was that our best -- our best 3 guess was, and we had a call, I think, in at that point 4 to the Sarnia Trial coordinator, but our best guess was 5 an early motion might -- we might be able to get in by 6 Friday. 7 Q: Yes. 8 A: So two (2) days later. 9 Q: Right. 10 A: My -- so the way I have interpreted 11 what -- how -- how things unfolded and then how I ended 12 up with the -- -- with the -- with the instructions to -- 13 to go faster than that were that that information was 14 already relayed back to the powers to be and they -- and 15 that by the time I was told that afternoon, Go as quickly 16 as possible this afternoon if you can, I -- I took that, 17 rightly or wrongly, I took that as meaning, Friday's not 18 good enough -- 19 Q: Right. 20 A: -- you have to try to go faster. 21 Q: Right. But then you would have 22 discussed that with Mr. McCabe as well? 23 A: Yes. 24 Q: Do you recall whether you and he then 25 had the discussion again as to ex parte versus short
1921 notice? 2 A: So my recollection of the discussions 3 around that were -- were this, and -- and I -- that the 4 two (2) obvious options were an ex parte injunction or an 5 injunction with an abridgement of time for service. 6 We -- we knew, as I said yesterday, that - 7 - that there was going -- there was, in all likelihood, 8 going to be an issue around the service because there had 9 been this effort to serve a notice of trespass that had 10 been declined. 11 Q: Right. 12 A: So we were faced with that. We knew 13 also that if you walked into court bringing a motion that 14 you claimed had been on notice but you were asking for an 15 abridgement of the time of notice, you actually had to 16 have given notice. Like, you had to have actually -- it 17 had to have actually happened or you weren't even going 18 to get off the ground. 19 Q: Right. 20 A: Right. So, if we -- then we were -- 21 so this is -- these are sort of discussions that -- that 22 Tim and I would have had through the -- you know, in the 23 time. Sort of thinking, Well, so how are we going to do 24 this, They want us to go as fast as we possibly can, How 25 are we going to do that, Well there is these problems
1931 with service, and -- and, If we ask for an abridgement of 2 service, if you don't get the abridgement of service, 3 then you're really out of luck and you have to wait for 4 three (3) days. 5 And if that's not good enough, well, then 6 we're really sort of -- this is my recollection how we 7 ended up at the -- how we ended up with the decision 8 about ex parte was, Well the only option that we have 9 under the rules where -- where you can officially proceed 10 without any -- without notice or -- or with such short 11 notice is through an ex parte injunction. 12 And that's where -- so that's where the 13 idea arose that we would proceed with an ex parte motion 14 but we would endeavour to actually give notice. So -- so 15 it was -- it was an effort to almost combine the two (2) 16 rules and -- and an effort to simply, in real terms, 17 provide notice. 18 Q: Yes. 19 A: But -- but give ourselves the -- the 20 latitude in the courtroom where we could say to the 21 judge, if notice wasn't given or if it was indeed an -- 22 an, sort of, unacceptably short notice period, that we 23 could say -- we could argue that we were legitimately 24 here under the ex parte rules. 25 Q: Right. Now, you indicated that you
1941 were not privy to all of the discussions that took place 2 around that issue? 3 A: I -- I don't -- I mean, I don't know 4 if there were other discussions. If there were, then I 5 wasn't privy to them. I don't know if -- 6 Q: Did -- did Mr. -- 7 A: -- there were -- 8 Q: -- McCabe indicate that he had 9 discussed those issues with Mr. Taman; do you recall? 10 A: I don't recall that, no. 11 Q: Well, did he indicate, do you recall, 12 that he discussed those issues with the Attorney General? 13 A: I don't recall that either. I'm -- 14 I'm quite sure that he did discuss something with 15 somebody but I -- 16 Q: Right. 17 A: -- but I'm not sure. And he may not 18 have. I mean, it may be that I came down and said, This 19 is what Mr. Taman has told us to do, and -- and that 20 might have been -- we might have carried on from there, 21 aside from the specifics of getting client approval for 22 our -- our documents. 23 Q: And now you telephoned the trial 24 coordinator in Sarnia -- 25 A: Yes.
1951 Q: -- sometime on September 6th and 2 arranged the court appearance that did take place on 3 September 7th; right? 4 A: So my recollection is there were 5 actually, sort of, two (2) contacts. So what contact had 6 been made in the morning to the Sarnia -- or maybe it was 7 being made by our secretary while we were at the meeting. 8 Because our assumption when we went to the 9 meeting on September 6th was that -- what we were -- we 10 were maybe hoping that our -- that our advice would be 11 received and accepted and acted upon and that our -- our 12 instructions would come back, Yes, try to get a -- a 13 motion on short notice. 14 Q: On Friday? 15 A: And so we had somebody -- I don't 16 know if it was me or if it was our secretary -- phoning 17 the trial coordinator in Sarnia to see if we could get in 18 on Friday. 19 Q: Yeah. So -- so in the morning, on 20 the assumption it would be short notice, someone tried to 21 arrange with the trial coordinator for an appearance on 22 Friday, and then -- but then later you were told that was 23 not good enough. 24 A: Yes. 25 Q: And then you personally --
1961 A: Yes. 2 Q: -- phoned the second time? 3 A: Yes. 4 Q: And can you assist us at all as to 5 what time of day that might have been that you made that 6 phone call? 7 A: So I have -- I remember speaking to 8 the trial coordinator and then the Registrar several 9 times through the afternoon. 10 I don't -- 11 Q: There were several phone calls? 12 A: Yes. 13 Q: Can you tell us when the first of 14 those might have been. 15 A: No. 16 Q: Do you know approximately? Would it 17 be, say -- 18 A: Early afternoon, I guess. 19 Q: Say, two o'clock, something like 20 that? 21 A: That's right. 22 Q: Could you tell us when the last might 23 have been? 24 A: In the evening. I spoke to the 25 Registrar in the evening because I faxed -- I had to make
1971 arrangements to fax all of the materials down to the 2 Registrar so they could be delivered to Justice Daudlin 3 at home. 4 Q: And was that early evening, do you 5 recall? 6 A: I think it was somewhere around 7:00 7 or 7:30, 8:00 something like that. 8 Q: So approximately between, say, 2:00 9 p.m. and 7:00 or 8:00 p.m., you had -- in the course of 10 that period you had several conversations with either the 11 trial coordinator or the Registrar of the Sarnia 12 Courthouse; is that correct? 13 A: The first one might well have been 14 before 2:00. 15 Q: Might have been before 2:00? 16 A: Sure. 17 Q: And then you -- the last conversation 18 was arranging to fax the Motion materials? 19 A: Well, actually the last conversation 20 was to confirm that they'd received them. 21 Q: Confirm -- and -- and they had 22 received them? 23 A: Yes. 24 Q: And are the materials that you faxed, 25 then, the same as the Motion materials that are in these
1981 documents? 2 A: That's my recollection. 3 Q: And in particular, then, was -- the 4 materials that you faxed, was -- did it say Motion 5 without Notice? 6 A: I believe so. 7 Q: 'Cause it seems -- maybe you can 8 assist me with the following then. 9 If we look at the transcript of the 10 proceedings on September 7, which is at Tab 20 of your 11 document brief, and is Exhibit P-737 to these 12 proceedings, and document number 3000504. 13 A: Yes. 14 Q: If we look at the transcript, and the 15 first page thereof, beginning at about line 21, Mr. 16 McCabe is interrupted by the presiding Justice, who says: 17 "Perhaps I can stop you there for a 18 moment and just make some inquiry. I 19 should indicate to you that you are 20 disabusing me now of information that 21 was given to me yesterday that, in 22 fact, this was not an ex parte 23 injunction." 24 A: Yes. 25 Q: So the Judge, early on, was telling
1991 Mr. McCabe, I thought this was not ex parte. 2 A: Yes. 3 Q: Right? I thought it was going to be 4 with notice. 5 COMMISSIONER SIDNEY LINDEN: Yes, Ms. -- 6 MS. KIM TWOHIG: Excuse me, just to be 7 fair, Mr. Commissioner. Above the portion that My Friend 8 quoted from, it says -- this is Mr. McCabe speaking to 9 the Judge: 10 "If your Honour has had an opportunity 11 to look at -- at material in this case, 12 you will know that we are here to seek 13 an ex parte injunction." 14 So that would indicate that the materials 15 that were sent by Mr. McCabe revealed that fact, and I 16 think we have to take this in context. 17 MR. PETER ROSENTHAL: Well, it's not 18 absolutely clear because his Honour seems to be 19 surprised, but in any event, I did -- I want to ask this 20 Witness who was there, rather than her counsel who 21 wasn't, to help explain these documents. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Now, so the judge did, early on, say 25 what I read to you and --
2001 A: Yes, he did. 2 Q: -- seemed to be surprised? 3 A: Yes. 4 Q: He expected, apparently, that it was 5 a Motion on Notice? 6 7 (BRIEF PAUSE) 8 9 A: And that was surprising. 10 Q: I'm sorry? 11 A: It was surprising to hear that 12 comment from the judge. 13 Q: You were surprised that -- 14 A: Yes. 15 Q: -- he reacted that way. You thought 16 he should have known that it was ex parte? 17 A: Yes. 18 Q: Now, Mr. McCabe then, after that, 19 says: 20 "Well, there was an attempt last 21 evening or there was an intention last 22 evening to provide notice, however 23 short, although a determination was 24 made yesterday that this was to be 25 formally a Motion under the rules for
2011 an ex parte injunction, and I apologize 2 that that determination was made after 3 conversation with the trial coordinator 4 about the existence of notice." 5 Now, I want to stop there. Are we not 6 correct in inferring from that, that Mr. Cabe (sic) was 7 indicating that when you spoke to the trial coordinator, 8 you had indicated that it would be a Motion with Notice 9 and he was apologizing to the court for the fact that the 10 nature of the Motion had been changed after that phone 11 call. 12 Is that correct? Is that a correct 13 reading? 14 A: So -- so my -- my interpretation of 15 that and my recollection is that -- that as I mentioned 16 before there -- we had contacted the Sarnia trial 17 coordinator in the morning and if you'd -- if you see the 18 notes of the September 6th meeting, the handwritten -- 19 various notes I think, somebody's notes say that Mr. 20 McCabe says, We're -- we're in touch with the Sarnia 21 trial coordinator today and -- and we're trying to get in 22 on Friday. 23 So, my interpretation was that he was 24 speaking about the initial contact that was made with the 25 trial coordinator in which we would have been seeking a
2021 motion on notice with a request for abridgement of the 2 time for service and not speaking about my subsequent 3 discussions in which we were trying to get before a judge 4 the next morning. 5 Q: Are -- are you suggesting that in 6 your subsequent discussion with the trial coordinator, 7 you told the trial coordinator that it was going to be an 8 ex parte motion? 9 A: I expect I did. I expected that I 10 told the trial coordinator that it was going to be 11 formally a motion without notice and -- but that we were 12 going to be making efforts to, in fact, provide notice. 13 Q: Yes. Well why didn't Mr. McCabe say, 14 I apologize that one time when we spoke to the trial 15 coordinator, we said -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: -- it was without and order but -- 20 A: I don't know why he would have. 21 Q: You agree that this wording suggests 22 that the matter as left with the trial coordinator was 23 that there would be a motion with notice. 24 A: Perhaps I wonder if I could ask a 25 question.
2031 COMMISSIONER SIDNEY LINDEN: No, no -- 2 THE WITNESS: There was a fax cover sheet 3 earlier that I had -- where I was -- the cover sheet that 4 had sent the materials down. It was -- 5 COMMISSIONER SIDNEY LINDEN: Yes, we've 6 made an exhibit. We've made an exhibit. 7 MR. PETER ROSENTHAL: It was, sir. We 8 made an exhibit, a recent exhibit which we can obtain for 9 you. 10 THE WITNESS: I don't know if it says on 11 the cover sheet what it is that I'm sending. Assuming my 12 recollection is that what I was faxing out was this -- 13 was exactly this note; this notice of motion. 14 MR. PETER ROSENTHAL: Yes. 15 THE WITNESS: This notice of motion and 16 it was the notice of motion without notice. 17 MR. PETER ROSENTHAL: Right. 18 THE WITNESS: So, it doesn't say anything. 19 It's not helpful, sorry. 20 COMMISSIONER SIDNEY LINDEN: This is a 21 very difficult area. I think -- 22 MR. PETER ROSENTHAL: Yes. It doesn't 23 help. 24 COMMISSIONER SIDNEY LINDEN: -- it's 25 Exhibit 746; is that right?
2041 MR. PETER ROSENTHAL: Yes but it doesn't 2 say anything on it that's helpful. If you -- 3 COMMISSIONER SIDNEY LINDEN: This is a 4 very difficult area, Mr. Rosenthal. 5 MR. PETER ROSENTHAL: Yes. 6 COMMISSIONER SIDNEY LINDEN: I mean, her 7 explanation to us here, is difficult to understand where 8 they were combining two (2) rules and it's not the 9 easiest thing in the world to explain. So, the fact that 10 it may have been confused is not surprising. 11 MR. PETER ROSENTHAL: That's a possible 12 explanation, is confusion. 13 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 14 MR. PETER ROSENTHAL: Although Mr. McCabe 15 probably was not confused at the time. 16 COMMISSIONER SIDNEY LINDEN: Well, I'm 17 not sure how much more we can get out of this point. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: But, I believe you were perhaps -- 21 maybe there was lots of confusion including perhaps my 22 questioning is confusing. But, I believe that there were 23 two (2) different things conflated in -- in what you said 24 a few moments ago. 25 There are the -- there are the two (2)
2051 different aspects of this that I was asking about within 2 the last few minutes. 3 One was what actual motion you did fax to 4 them? 5 A: Yes. 6 Q: Right. And we don't seem to know 7 that for sure. We just have the cover sheet and we don't 8 have the content. 9 A: I'm -- I'm pretty certain. 10 Q: But, you're pretty sure it was the 11 same one. 12 COMMISSIONER SIDNEY LINDEN: She says 13 what's faxed is what we have here. 14 THE WITNESS: Yes. 15 MS. KIM TWOHIG: Perhaps I could just 16 shed some light on this, Mr. Commissioner, and help My 17 Friend. 18 When we were producing the motion record, 19 we were having difficulty figuring out exactly what went 20 to the court. So, in fact, we went to the court office 21 and asked the court office to provide us with exactly 22 what it had received. 23 And the motion record that was circulated 24 to all counsel by the Commission was in fact what came 25 from the court office.
2061 COMMISSIONER SIDNEY LINDEN: Right. 2 Right. That's fine. I'm not looking for your help Mr. 3 Roy unless this directly affects your interest. 4 MR. JULIAN ROY: Well, it does because 5 I'm going to be cross-examining -- 6 COMMISSIONER SIDNEY LINDEN: Well I'm not 7 sure how much of this we're going to go into. 8 MR. JULIAN ROY: Well, it's just -- it's 9 something that's raised by what Ms. Twohig said when she 10 said that when she looked through her file she didn't -- 11 couldn't understand what precise -- which document was 12 sent to the court. 13 That suggests that there might be other 14 drafts of this document. 15 COMMISSIONER SIDNEY LINDEN: Well, it 16 doesn't make that suggestion to me at all. 17 MR. JULIAN ROY: Well, it made it to me 18 and I just wanted to clarify that there isn't those 19 things because given how difficult this area is -- 20 COMMISSIONER SIDNEY LINDEN: You can't 21 jump up and ask these questions all the time, Mr. Roy. I 22 want to carry on with the examination. You'll have your 23 opportunity. 24 MR. JULIAN ROY: All right. Okay. 25 COMMISSIONER SIDNEY LINDEN: You can ask
2071 questions. You could speak -- 2 MR. JULIAN ROY: I -- I apologize but -- 3 COMMISSIONER SIDNEY LINDEN: Well, why 4 don't you speak to Ms. Twohig? Why don't you ask her? 5 Just speak to her and if you're not satisfied with 6 answers then raise them in front of me. 7 MR. JULIAN ROY: Sure. Sure. Thank you 8 very much. 9 COMMISSIONER SIDNEY LINDEN: Carry on. 10 MR. PETER ROSENTHAL: I had a different 11 response to Ms. Twohig's submission. She told us that 12 this was what was in the court file. 13 COMMISSIONER SIDNEY LINDEN: Right. 14 MR. PETER ROSENTHAL: But, whether or not 15 that would be the same document as was faxed the night 16 before is not necessarily clear. It might well have been 17 that there was another version served that morning. But, 18 in any event, I -- I wanted to explore -- 19 COMMISSIONER SIDNEY LINDEN: You can 20 clarify that. 21 MR. PETER ROSENTHAL: Yes. But I -- I'm 22 trying to find out from this Witness, as much as she can 23 help us with, these admittedly difficult areas. And I -- 24 we would like to continue to get whatever information we 25 could.
2081 COMMISSIONER SIDNEY LINDEN: I have a 2 sense that she's answered the questions as fully as she 3 can already. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Well, with respect, I believe that I 7 started to say before that, I believe, with great 8 respect, Dr. Christie, you were conflating two (2) 9 different issues, both which I had asked about within the 10 last several minutes, but I want to separate now and make 11 sure that they are separate. 12 So, one (1) is, which version of the 13 notice of motion might have been faxed to the court the 14 night before, and I'm not dealing with that anymore, 15 okay? 16 A: Okay. 17 Q: I don't know if Ms. Twohig's 18 explanation will completely satisfy us on that or not but 19 I'm not dealing with that anymore. But, then -- 20 A: But, just -- sorry, if I can just 21 clarify my answer if I wasn't clear. By the time we were 22 sending an -- a fax, and the reason that I'm virtually 23 100 percent certain that I faxed the Notice of Motion 24 Without Notice is that by the time I was sending it, at 25 7:00 or 6:30 or 7:30 p.m., we knew full well that that
2091 was what we were doing. 2 We were proceeding with a Notice of Motion 3 Without Notice with the addendum that we were going to 4 endeavour, in fact, to provide notice. 5 So that's why I am so certain that that's 6 what I faxed to them. 7 Q: Okay. So -- 8 A: And we were very surprised -- I was 9 certainly surprised when Justice Daudlin said, I'm 10 surprised to see that you're here on a notice without -- 11 on a Motion Without Notice because I thought that you 12 were coming with notice. 13 Q: Right. 14 A: When we had delivered -- we 15 understood that the Registrar had delivered to him the 16 evening before our motion record which contained the 17 Notice of Motion Without Notice. 18 COMMISSIONER SIDNEY LINDEN: And just, 19 because I understand this, the document that you think 20 you sent is the document that Ms. Twohig has produced? 21 THE WITNESS: Yes. 22 COMMISSIONER SIDNEY LINDEN: It's the 23 same document -- 24 THE WITNESS: Yes. 25 COMMISSIONER SIDNEY LINDEN: -- as far as
2101 you know. 2 MR. PETER ROSENTHAL: Yes. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now, given what you just told us, 7 isn't it -- and given what we read in the transcript -- 8 A: Hmm hmm. 9 Q: -- about being surprised, people, all 10 sorts of people being surprised, you didn't jump and tell 11 Mr. McCabe, when he said, I apologize that the 12 determination was made after conversation with the trial 13 coordinator about the existence of notices, you didn't 14 jump up and say, Hey wait don't say that because I've 15 called an ex parte. 16 So, isn't it likely that in the rush of 17 events you had -- or the first communication, or some 18 communications with the trial coordinator's office in 19 Sarnia, indicated there would be a Motion with Notice, 20 perhaps abridged, undoubtedly abridged. 21 And then subsequently there were no other 22 -- there was no correction of that verbally to the trial 23 coordinator's office, that the trial coordinator's office 24 was therefore left with the impression that there would 25 be notice.
2111 And that Mr. McCabe seemed to acknowledge 2 that here. He says it was -- apologized, the 3 determination to go ex parte was made after conversation 4 with the trial coordinator. And that's why everybody was 5 a bit confused and surprised at the time; there were 6 contradictory messages. 7 Is that fair, as the most likely 8 explanation? 9 A: Well, the most likely explanation 10 that I would give is that there had been discussions with 11 the trial coordinator in the morning and our expectation 12 at that time was that it would be on notice. 13 Now, it's true and it's possible that in 14 the afternoon, when I spoke to the trial coordinator, I 15 may have said it might be on notice. I may have said 16 nothing about notice. Because then I was fairly quickly 17 put in communication with the Registrar and most of my 18 discussions -- at least my recollection is that most of 19 my discussions were with the Registrar and how 20 practically to get the materials. 21 But, the bottom line is that the materials 22 that were delivered to Justice Daudlin in the evening 23 before and they're materials that he indicates he had 24 looked through were for a Notice of Motion Without 25 Notice. So, why he believed that he was going to get one
2121 on notice, I honestly do not know. 2 Q: But, it might have been that 3 contradictory message, perhaps? 4 A: Might have been, yes. 5 Q: Now... 6 COMMISSIONER SIDNEY LINDEN: You're going 7 to move on to another point I hope. 8 MR. PETER ROSENTHAL: I am indeed. 9 COMMISSIONER SIDNEY LINDEN: Good. 10 MR. PETER ROSENTHAL: I -- I like to 11 realize your hopes whenever I can, Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 I don't want to get more confused, that's all. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Now, as you told us, ultimately it 19 was decided, certainly, to go ex parte but, nonetheless, 20 there was at least the hope that there might be service-- 21 A: Yes. 22 Q: -- and the idea would be that if 23 there was some service, that would perhaps assist in you 24 getting the injunction and would show some good faith on 25 the part of the Government or something to that effect;
2131 is that fair? 2 A: That's fair. 3 Q: So, the OPP was asked to serve these 4 materials; is that correct? 5 A: Yes. 6 Q: And you faxed the Motion materials to 7 the OPP for that purpose? 8 A: Yes. 9 Q: And about what time was that, do you 10 recall? 11 A: Seven (7) -- it's on that fax cover 12 sheet to Inspector Linton, but 7:30, eight o'clock -- 13 Q: About 7:30 in the -- 14 A: -- eight o'clock, something like 15 that. 16 COMMISSIONER SIDNEY LINDEN: 7:47. 17 MR. PETER ROSENTHAL: 7:47, thank you. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: And had you spoken to somebody about 21 serving these documents before you faxed it or after you 22 faxed it? 23 A: Mr. McCabe had these discussions. 24 Q: Mr. McCabe had all those discussions? 25 A: Yes.
2141 Q: You, personally, were not involved 2 with any -- 3 A: No. 4 Q: -- of those discussions? Now, we 5 know that then there was a subsequent date set of 6 September 11 to continue argument with respect to this 7 injunction, all right? 8 A: Yes. 9 Q: But then just before September 11, 10 the Motion was withdrawn by the Government? 11 A: Yes. 12 Q: And the injunction application was 13 withdrawn? 14 A: Yes. 15 Q: And it was not ever renewed; is that 16 correct? 17 A: As far as I know. 18 Q: Now, why was the injunction 19 application so important that it had to be rushed through 20 without notice, very, very quickly, that one week and 21 then withdrawn a week later and never pursued again? 22 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 23 Twohig...? 24 MS. KIM TWOHIG: Dr. Christie has 25 indicated that she was asked -- acting on instructions.
2151 And if My Friend wants to ask what the instructions were, 2 that's one thing, but I don't think she can answer what 3 the rationale was for the people giving the instructions. 4 MR. PETER ROSENTHAL: Well, I -- I meant 5 to mean that, Ms. Twohig. 6 COMMISSIONER SIDNEY LINDEN: Yes -- 7 MR. PETER ROSENTHAL: And I'll rephrase 8 that -- 9 COMMISSIONER SIDNEY LINDEN: I'm sure you 10 did, that's fine. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Of course, I'm asking what you know 14 only. And what were you told that would assist us in 15 understanding what happened with respect to the failure 16 to pursue the injunction ever after? 17 A: So beyond -- you mean beyond the 18 point at which we withdrew initially -- 19 Q: Well -- 20 A: -- is that -- 21 Q: Why -- why was it withdrawn, to your 22 understanding? 23 What were your instructions as to the 24 reasons to withdraw it for -- before September 11, first? 25 COMMISSIONER SIDNEY LINDEN: Once again,
2161 Ms. Twohig's -- 2 MS. KIM TWOHIG: Yes. The reasons are a 3 matter of record and My Friend has those reasons. 4 COMMISSIONER SIDNEY LINDEN: Yes, the 5 reasons are on the record. Is there anything more or -- 6 MR. PETER ROSENTHAL: Yes, but I want to 7 know what her instructions were. As Ms. Twohig said, I 8 should ask her, and I'm now asking her. 9 THE WITNESS: Sorry, our instructions 10 were to withdraw. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: And -- and were there explanations 14 given to you as to why you were being given those 15 instructions to withdraw? 16 COMMISSIONER SIDNEY LINDEN: Other than 17 what appears on the record. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Yes. What was -- you must have been 21 surprised, were you not, that here you had frantically 22 prepared this injunction. It was so urgent, had to be -- 23 had to be done, couldn't wait even two (2) days, had to 24 be the next day. 25 And then a few days later it's being
2171 withdrawn. What were you told about that? Why was 2 that -- 3 A: Well, the primary reason it was being 4 withdrawn was because Dudley George was -- had been 5 killed and his -- his funeral service was scheduled for 6 the same -- 7 Q: For September the 11th. 8 A: -- for the same day. 9 Q: But -- 10 A: That was the primary reason for the 11 withdrawal. 12 Q: But, wouldn't that have suggested 13 adjourning the Motion to another day rather than 14 withdrawing the Motion? 15 A: The details of the, sort of, 16 political decisions, the reasons, justifications for why 17 the decision was made to withdraw the entire thing, I 18 honestly don't know. 19 Q: Nobody said anything about that to 20 you, that you were aware of? 21 A: No, not to me, no. 22 Q: But, didn't you ask? Didn't you ask, 23 why was it so urgent last week and all of a sudden it's 24 been -- 25 COMMISSIONER SIDNEY LINDEN: Well --
2181 MR. PETER ROSENTHAL: -- totally 2 withdrawn? 3 THE WITNESS: Well, I wasn't really 4 surprised that it was being withdrawn at the time so I 5 guess I didn't ask, no. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: And Mr. McCabe didn't tell you 9 anything about that? 10 A: No. 11 Q: Did you get the understanding at some 12 point that one of the considerations in failing to pursue 13 the injunction application was concern that any judicial 14 consideration of such an application, might look at the 15 circumstances surrounding the death of Dudley George, and 16 that there were persons who did not want those 17 circumstances looked at judicially? 18 A: Sorry, I'm just watching my Counsel. 19 MS. KIM TWOHIG: Mr. Commissioner, she's 20 already testified that she was not -- 21 COMMISSIONER SIDNEY LINDEN: She didn't 22 know. 23 MS. KIM TWOHIG: -- given any reason. 24 COMMISSIONER SIDNEY LINDEN: She didn't 25 have any reason -- she had no reasons given her.
2191 MR. PETER ROSENTHAL: With respect, Mr. 2 Commissioner, she didn't answer that question and -- and 3 she looked to her Counsel for a reason not to answer the 4 question and -- 5 COMMISSIONER SIDNEY LINDEN: No, no. I 6 don't think that. I don't take that at all from what 7 happened, Mr. Rosenthal. I don't think is what happened. 8 MR. PETER ROSENTHAL: Well, with respect, 9 I should like her to -- 10 COMMISSIONER SIDNEY LINDEN: Counsel -- 11 MR. PETER ROSENTHAL: -- answer that 12 question clearly and if she says she doesn't know, then 13 she doesn't know. 14 COMMISSIONER SIDNEY LINDEN: Which 15 question are you going to ask now? 16 MR. PETER ROSENTHAL: Did she get any 17 indication from speaking to anyone -- 18 COMMISSIONER SIDNEY LINDEN: Any 19 indication from speaking to anyone. I mean you have to 20 be a little more precise. 21 MR. PETER ROSENTHAL: Well, I -- with 22 respect, Mr. Commissioner -- 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. PETER ROSENTHAL: -- I think that's a 25 traditional basis for a question of the follow -- of a
2201 precise thing. I'm going to say the precise thing. 2 COMMISSIONER SIDNEY LINDEN: Okay. Ask 3 the -- 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: And the precise thing is that there 7 were concerns among government people that pursuing the 8 injunction might lead to a judicial review of what 9 happened surrounding the death of Dudley George, and they 10 did not want that to happen. 11 Were you aware of such concerns? 12 A: Subsequently, yes. 13 Q: Yes, you were. 14 A: Yes. 15 Q: Indeed, yes. And what gave you the 16 knowledge of those concerns? 17 A: I can't tell you specifically what 18 discussions or -- but I certainly do recall that and I -- 19 but I recall it in the context of -- of a much later -- 20 much later discussion about -- about whether or not to 21 bring the matter back -- the context in which -- 22 COMMISSIONER SIDNEY LINDEN: Do you mean 23 months later -- 24 THE WITNESS: Yes, months later -- 25 MR. PETER ROSENTHAL: Yes.
2211 COMMISSIONER SIDNEY LINDEN: -- or years 2 later? 3 THE WITNESS: That -- that's the context 4 in which I recall -- 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Those concerns being expressed? 8 A: -- concerns and -- and I honestly 9 cannot tell you who or, you know, in which discussions, 10 but I do recall that being raised. 11 Q: And you were involved in several such 12 discussions where that notion arose, is that correct? 13 A: I could have -- could have been. I - 14 - yeah, I mean, I'm -- I just -- I know that it was an 15 issue, certainly subsequent -- many months later. 16 Q: Yes. And was it your understanding 17 that that issue, that concern arose from both the OPP and 18 from other aspects of government? 19 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 20 Twohig? We're getting -- 21 OBJ MS. KIM TWOHIG: I'm objecting to this 22 line of questioning because it deals with events that 23 happened many months -- 24 COMMISSIONER SIDNEY LINDEN: Long after. 25 MS. KIM TWOHIG: -- later. And we're
2221 here at an Inquiry now to inquire into the events 2 surrounding the death of Dudley George and -- 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MS. KIM TWOHIG: -- the Witness should be 5 asked questions about those events -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. KIM TWOHIG: -- in my submission. 8 COMMISSIONER SIDNEY LINDEN: Some events 9 that immediately follow the -- the death, the shooting, 10 are relevant, but I don't want to go into a whole new 11 area. I don't want to do that. 12 MR. JONATHON GEORGE: Commissioner -- 13 COMMISSIONER SIDNEY LINDEN: Yes...? 14 MR. JONATHON GEORGE: -- I wonder if I 15 could be heard on the -- under the issue of relevance 16 which I think will bear directly on -- on the questions 17 that I have. 18 Now, if Ms. Twohig's suggesting that 19 because this discussion took place months later, 20 therefore it's irrelevant, I take issue with that for -- 21 for this reason. 22 You know, in terms of your mandate, in 23 particular, your Part II mandate, to fully understand and 24 fulfil that mandate, you have to appreciate, look at and 25 understand the Government response to Dudley George's
2231 death. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. JONATHON GEORGE: I mean, Dudley 4 George didn't die because he occupied a Park. He died 5 because of the Government response to that occupation. 6 And, you know, the fact which can't be 7 disputed is that ten (10) years after the events, there 8 are still an occupation, much in the same way there was 9 ten (10) years ago and I think if you look at it in that 10 context, it makes it relevant. 11 COMMISSIONER SIDNEY LINDEN: Well, I 12 can't be expected to go over the last ten (10) years. 13 And -- 14 MR. JONATHON GEORGE: No, I -- 15 COMMISSIONER SIDNEY LINDEN: -- there's 16 ten (10) years that have occurred. If we're going to 17 look at every event and every decision that's been made 18 over the course of the last ten (10) years, we'll be ten 19 (10) years and I don't think that's the intention of the 20 --or the object for the mandate of this Commission. 21 MR. JONATHON GEORGE: And I appreciate 22 that, Commissioner. 23 COMMISSIONER SIDNEY LINDEN: So, we've 24 got to draw lines -- 25 MR. JONATHON GEORGE: Yeah.
2241 COMMISSIONER SIDNEY LINDEN: -- with 2 regarding our relevance. 3 MR. JONATHON GEORGE: But my -- 4 COMMISSIONER SIDNEY LINDEN: And -- 5 MR. JONATHON GEORGE: I'm sorry? 6 COMMISSIONER SIDNEY LINDEN: I'm sorry. 7 I -- unless you have some other submission. 8 MR. JONATHON GEORGE: Well, my only point 9 is that it -- I'm certainly not suggesting that it's a 10 free for all, that the door is open completely to 11 everything that's happened over the past ten (10) years. 12 Now, Mr. Rosenthal asked a question. 13 There was a -- there was an answer and we have an 14 identifiable issue which I -- which I would submit is a 15 proper line of questioning. 16 You know, it's identical -- it's 17 identifiable, we have it. The relevance, in my 18 submissions, can be drawn and linked directly to the 19 events of September 5th, 1995. 20 COMMISSIONER SIDNEY LINDEN: Well, I 21 don't know that. At this point, in order to make those 22 determinations, we have to go a fair bit of -- a fair way 23 down and I don't want to do that unless there's -- 24 there's a clear connection. 25 MR. PETER ROSENTHAL: With respect, Mr.
2251 Commissioner, may I respond as well? 2 One of the issues that I'm asking about is 3 the reluctance to pursue an injunction because of concern 4 that they didn't want to have a judicial forum that would 5 examine the events surrounding the death of Dudley 6 George. 7 Now, in my respectful submission, this 8 goes to several key issues here. First off, it really 9 raises the question of the injunction in the first place 10 and so on. 11 I mean how could they, as I ask this 12 Witness and she said she was really surprised that there 13 was this urgency for an injunction for a week and then it 14 never happens after that, it never gets pursued and -- 15 COMMISSIONER SIDNEY LINDEN: I didn't 16 hear her say that she was surprised about that. Did 17 you -- 18 MR. PETER ROSENTHAL: I believe she did 19 say she was surprised by that. 20 COMMISSIONER SIDNEY LINDEN: Did you, oh, 21 all right. 22 MR. PETER ROSENTHAL: That it was 23 abandoned totally. Did I mis-recall your evidence, Dr. 24 Christie? 25 COMMISSIONER SIDNEY LINDEN: I don't --
2261 THE WITNESS: No, I said -- I think I 2 said I was not surprised that it was abandoned. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. PETER ROSENTHAL: That it was aban -- 5 oh sorry, I might have misheard, Mr. Commissioner. 6 THE WITNESS: I was -- oh sorry, yeah. 7 MR. PETER ROSENTHAL: But I would submit 8 to you there's some serious questions there is to how 9 something that had to be so urg -- that was so urgent 10 then got abandoned, number one. 11 Number 2, we now have evidence from this 12 Witness that there was such concern expressed, that one 13 of the -- one of the concerns expressed about continue 14 with the injunction application is that there might be a 15 judicial look at what happened to Dudley George and 16 surrounding events. 17 And that should give us concern as to a 18 government that had that attitude of covering up those 19 events. And this -- this matter of an injunction that 20 was so urgent that this Witness and others had to work so 21 hard and try and get into court and keep people up the 22 whole night and so on, became abandoned because they were 23 more interested in covering up than they were in getting 24 that injunction, might be a submission. 25 But, in any event, I just wish to get some
2271 facts on the table about -- 2 COMMISSIONER SIDNEY LINDEN: All right. 3 Let's see if we can get some facts. 4 MR. PETER ROSENTHAL: -- this now and 5 it's directly -- 6 COMMISSIONER SIDNEY LINDEN: I don't want 7 you to leave the impression that there's some cover-up 8 here because I don't think that's the case but if you -- 9 I don't, I haven't heard any evidence to that affect but 10 if you want to ask the question to make sure that that's 11 not what happened. 12 MR. PETER ROSENTHAL: So I want to 13 explore this area further -- all I want to do now is 14 bring out the facts, sir, and then I might be able to 15 make such arguments or may not, depending upon how they 16 come out. 17 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 18 Twohig...? 19 MS. KIM TWOHIG: Mr. Commissioner, with 20 great respect, what My Friend really wants to do is to 21 find out why a decision was made later not to pursue an 22 injunction. And in my submission that is not relevant to 23 the actual events. 24 COMMISSIONER SIDNEY LINDEN: What if the 25 reason was that they didn't want to have a judicial
2281 determination of it, what if that's the fact? 2 Is that not relevant? 3 What if the Government did not want a 4 judicial determination of the circumstances surrounding 5 the death of Dudley George in the time of the injunction? 6 If that is what we have, that could be 7 relevant. 8 MS. KIM TWOHIG: Except that we're here 9 now to have an inquiry into those events. Not what the 10 reasons were for maybe not having one earlier. And of 11 course it's important to consider the context that there 12 were police investigations and criminal charges 13 outstanding and other issues that may have had a bearing. 14 COMMISSIONER SIDNEY LINDEN: And they may 15 be the answer. That may be the answer. 16 MS. KIM TWOHIG: They may or may not but 17 in my submission that's entirely irrelevant. 18 COMMISSIONER SIDNEY LINDEN: Well I'm not 19 sure that it's entirely irrelevant. I don't want to get 20 into reviewing decisions that were made over the course 21 of the last ten (10) years. And if that's your objective 22 some point soon we're just going to say that's it, very 23 soon. Like I mean -- 24 MR. PETER ROSENTHAL: I -- 25 COMMISSIONER SIDNEY LINDEN: -- in the
2291 next few minutes. I don't mean next few weeks because I 2 don't want to get into that. It's not something that I 3 think any of us expected we would be going into. 4 MR. PETER ROSENTHAL: No, no. I do 5 absolutely appreciate your position, Mr. Commissioner and 6 I -- there's no one more than I who -- who wants to limit 7 this. 8 COMMISSIONER SIDNEY LINDEN: Well let's 9 see if we can. 10 MR. PETER ROSENTHAL: But on the other 11 hand, we're talking about the events of September 5 and 6 12 not being exposed to judicial scrutiny as a reason for -- 13 for not pursuing an injunction that was so urgent earlier 14 and that will really shed light perhaps on what -- 15 COMMISSIONER SIDNEY LINDEN: You may be 16 talking about that so you want -- 17 MR. PETER ROSENTHAL: Well I believe. 18 COMMISSIONER SIDNEY LINDEN: -- to ask 19 another question? 20 MR. PETER ROSENTHAL: Yes. Yes. Well 21 I'm sorry. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: Let me -- now let me try and antic -- 25 all I want from you is whatever you can remember about
2301 the facts. 2 A: Sure. 3 Q: Now I believe you did tell me that 4 there were -- you became aware of concerns that if the 5 injunction application was pursued, it might include a 6 judicial look at the events of September 5, 6, 7; is that 7 correct? 8 A: Yes. 9 Q: You became aware of such concerns? 10 A: Yes. 11 Q: And you told us that you -- you were 12 involved in several conversations which those concerns 13 emerged. 14 Is that fair to say? 15 A: Yes. 16 Q: These were not your concerns; you 17 didn't raise those concerns? 18 A: Well they were -- I recall that -- 19 that the context of that as being a request that was 20 received, so -- so Tim McCabe and I were asked, some 21 months later, and I -- I believe it was actually sort of 22 just before the beginning of the following season. 23 Q: Right. 24 A: So as you know the Park was closed 25 and had -- would have -- it was closed, in any event, to
2311 camping from -- from the Labour Day weekend and I believe 2 until the May 24th weekend -- 3 Q: Right. 4 A: -- probably when it was going to re- 5 open, somewhere around there. And it was in that context 6 that we were asked to provide legal advice as to the -- 7 the means by which we might pursue an injunction, the 8 pros and cons, the -- the likelihood of success and, 9 essentially, a legal -- a legal opinion about proceeding 10 with another injunction. 11 Q: And the -- those concerns about the 12 possibility of this opening it up to judicial review 13 arose in the course of those discussions? 14 A: Discussions between Tim and I and -- 15 and other -- in preparation of that. 16 COMMISSIONER SIDNEY LINDEN: Re-opening 17 the Park? 18 Regarding re-opening the Park, that's what 19 it was about? 20 The possibility of re-opening the Park? 21 THE WITNESS: Because we would have had 22 to apply for another injunction because the occupation 23 continued. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 THE WITNESS: So in order to re-open the
2321 Park the Minister of Natural Resources -- I -- I don't 2 know, I assume they asked so -- sorry. 3 MS. KIM TWOHIG: Yes, I -- I just rise 4 here, Mr. Commissioner, because the -- Dr. Christie is 5 being asked, I think, or may shortly be asked -- 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MS. KIM TWOHIG: -- about the legal 8 opinion that was provided -- 9 COMMISSIONER SIDNEY LINDEN: I don't 10 think she is being asked that. If she is, then you can 11 say what you have to. 12 MS. KIM TWOHIG: Well, I -- I want to be 13 on the record at an -- as early as possible to say that 14 my client has claimed privilege -- 15 COMMISSIONER SIDNEY LINDEN: Yes. That-- 16 MS. KIM TWOHIG: -- over the legal 17 opinion -- 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MS. KIM TWOHIG: -- that was prepared in 20 that respect. 21 COMMISSIONER SIDNEY LINDEN: Yes. I 22 understand that. And that's been discussed among counsel 23 I gather. 24 MR. JONATHON GEORGE: Commissioner, given 25 my attendance on behalf of Chiefs of Ontario and given an
2331 e-mail that was circulated by Mr. Horner last evening to 2 your counsel and counsel for other parties, which I'm not 3 sure if you're -- 4 COMMISSIONER SIDNEY LINDEN: Well, I'm 5 not privy to that. No, I'm not. 6 MR. JONATHON GEORGE: Okay. In any 7 event, the Chiefs of Ontario has -- has indicated the 8 desire to perhaps challenge the position which -- which 9 is being asserted by My Friend and -- 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MR. JONATHON GEORGE: -- it was initially 12 my intention to canvass with that -- that with you 13 earlier this morning and I decided to leave that until 14 the issue, if and when it arose, and apparently it either 15 has or is about to. 16 COMMISSIONER SIDNEY LINDEN: Which issue 17 do you wish to challenge, the assertion of privilege? 18 MR. JONATHON GEORGE: In terms of the 19 legal opinion that Ms. Twohig made reference to. 20 COMMISSIONER SIDNEY LINDEN: And you 21 intend to challenge whether or not it's privileged? 22 MR. JONATHON GEORGE: Yes. The Chiefs of 23 Ontario do. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JONATHON GEORGE: And that --
2341 COMMISSIONER SIDNEY LINDEN: Well -- 2 MR. JONATHON GEORGE: -- your counsel's 3 been advised of that. So, I mean -- 4 COMMISSIONER SIDNEY LINDEN: Well, I -- 5 MR. JONATHON GEORGE: -- we're getting to 6 that point now, so. 7 COMMISSIONER SIDNEY LINDEN: -- I believe 8 that we discussed this issue earlier, last week was it? 9 MR. JONATHON GEORGE: Yes. 10 COMMISSIONER SIDNEY LINDEN: I think it 11 was. Have you got a different submission to make now 12 than what we discussed last week? 13 MR. JONATHON GEORGE: As I recall it, 14 Commissioner, the context in which it was raised last 15 week was general, questions were being asked about the 16 injunction process and conversations between government 17 lawyers and their client. And, you know, Ms. Twohig 18 addressed the issue of what portions of that would be 19 waived and -- and that was canvassed, I believe, by Mr. 20 Rosenthal and Mr. Roy on different occasions. 21 And -- and I quite remember Your Honour's 22 comments that we would deal with it on a question-by- 23 question -- 24 COMMISSIONER SIDNEY LINDEN: All right. 25 MR. JONATHON GEORGE: -- basis if Counsel
2351 objected -- 2 COMMISSIONER SIDNEY LINDEN: Okay. 3 MR. JONATHON GEORGE: -- we would deal 4 with it in that way. 5 COMMISSIONER SIDNEY LINDEN: All right. 6 Let's deal with it now. 7 MR. JONATHON GEORGE: The difference, and 8 -- and I think the reason for Mr. Horner's correspondence 9 of last evening is now we have an identifiable opinion. 10 COMMISSIONER SIDNEY LINDEN: To which 11 privilege is not being waived. 12 MR. JULIAN FALCONER: For which privilege 13 is not being waived. You know, it's -- it would be quite 14 cumbersome, I think, to deal with it on a question-by- 15 question basis when we have an identifiable document. 16 And, you know, I have suggestions on -- as to how to deal 17 with that, but I'm not sure if Your -- Your Honour wishes 18 to hear from me on that point. 19 COMMISSIONER SIDNEY LINDEN: Well, I'm 20 not sure how to deal with this. So obviously, we're 21 going to have to deal with it. I don't know if we want 22 to deal with it in the context of where we are now, but 23 we need to deal with it. 24 MR. PETER ROSENTHAL: I sure would like 25 to speak to it too, sir, as I was about to ask questions
2361 about it. 2 COMMISSIONER SIDNEY LINDEN: Well, I'm 3 not sure now, we've got an issue now that's apart from 4 your question. Do you want us to -- I'll hear from you, 5 Mr. Rosenthal. Do you -- 6 MR. PETER ROSENTHAL: Thank you. 7 COMMISSIONER SIDNEY LINDEN: -- do you 8 want to say something before I -- 9 MR. DONALD WORME: I do, Mr. 10 Commissioner. I wonder if this might be an appropriate 11 time to take a break. I think that perhaps the parties 12 ought to get together and see if we can discuss an 13 appropriate manner in which to deal with this. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. DONALD WORME: If we cannot, then -- 16 then we will be back to -- 17 COMMISSIONER SIDNEY LINDEN: Yes. We 18 need to have -- 19 MR. DONALD WORME: -- to make 20 submissions, as I think you want to hear. 21 COMMISSIONER SIDNEY LINDEN: We need to 22 have a process for dealing with these issues. They can't 23 just keep popping up. 24 MR. DONALD WORME: Well, as a matter of 25 fact, with -- with all due respect, Mr. Commissioner --
2371 COMMISSIONER SIDNEY LINDEN: We have a -- 2 MR. DONALD WORME: -- there is a process. 3 COMMISSIONER SIDNEY LINDEN: We have a 4 process. 5 MR. DONALD WORME: It is set out in the 6 rules of -- 7 COMMISSIONER SIDNEY LINDEN: We need to 8 have a process that is agreed. 9 MR. DERRY MILLAR: Yeah, but there is a 10 process, it's Rule 32. 11 COMMISSIONER SIDNEY LINDEN: Yes. I know 12 that. And that's what I expect that you will say in the 13 discussions and we will reach an agreement that that's 14 how we're going to resolve these, but I don't want to 15 have a discussion of our process here, right now, on the 16 record, until you've had those discussions. And if you 17 can't resolve it, then we'll do it here. 18 Thank you. We'll take a short break. And 19 I'd invite you to have some discussion. 20 THE REGISTRAR: This Inquiry will now 21 recess. 22 23 --- Upon recessing at 2:56 p.m. 24 --- Upon resuming at 3:14 p.m. 25
2381 THE REGISTRAR: This Inquiry is now 2 resumed; please be seated. 3 MR. DERRY MILLAR: I don't know where Mr. 4 George is. Oh, there he is. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. DERRY MILLAR: Commissioner, perhaps 7 before My Friend, Mr. Rosenthal, begins again, the -- let 8 me just set out the position that Commission Counsel 9 advised the parties of today. The -- 10 COMMISSIONER SIDNEY LINDEN: By the way, 11 just before you do, I understand it's very similar to 12 what we advised last week. 13 MR. DERRY MILLAR: That's right. 14 COMMISSIONER SIDNEY LINDEN: Yes, come 15 on. 16 MR. DERRY MILLAR: Procedural issues are 17 dealt with under the rules of procedure and practice. 18 Rule 32, which is the rule that deals with privilege 19 issues -- 20 COMMISSIONER SIDNEY LINDEN: Could you 21 sit down, Mr. Alexander, please? 22 MR. BASIL ALEXANDER: I have Mr. 23 Rosenthal behind me. 24 COMMISSIONER SIDNEY LINDEN: Oh, I'm 25 sorry.
2391 2 (BRIEF PAUSE) 3 4 MR. DERRY MILLAR: Perhaps Mr. Rosenthal 5 can sit here, as he's up next. 6 In our view, rule 32 does not providing 7 standing to other parties to challenge the determination 8 of a privilege issue. 9 Under rule 32, where a claim for privilege 10 is made, the following procedure is to be followed. 11 Commission Counsel gets a copy of the document over which 12 party claiming privilege. 13 Commission Counsel reviews the document to 14 determine the validity of the claim for privilege. It's 15 a practical matter that involves discussions. 16 The claim for privilege may be resolved 17 with the party agreeing with Commission Counsel there is 18 no privilege and the document produced, or with 19 Commission Counsel agreeing with the party and the 20 document is not produced, in the first case with no 21 privilege the document is produced. 22 If the party disagrees with the decision 23 of Commission Counsel, the issue is dealt with on 24 application either to you or you may direct that it be 25 dealt with by the senior Regional Judge in Toronto or his
2401 designate. 2 That is the procedure that has been 3 followed throughout this Inquiry to date. The number of 4 different parties. 5 Now, with respect to the opinion that's 6 underlying these questions, the following occurred: 7 That document was provided to the 8 Commission as part of the Ontario Provincial Police 9 production. 10 The Ministry of the Attorney General 11 reviewed the OPP documents after they had been produced 12 by the OPP and earlier this year advised Commission 13 Counsel that the OPP had produced a number of documents 14 over which a privilege was claimed by the Government. 15 The privilege was that of the Government's 16 position taken and not of the OPP, so it could not be 17 waived inadvertently by the OPP. 18 Commission Counsel have gone through the 19 list with Counsel for MAG and resolved most of the 20 issues, with some issues remaining under review. 21 The normal practice with all parties has 22 been to provide the party with a list of the documents 23 that refer to the party's witness prior to the list being 24 distributed to the other parties. 25 Any questions then relating to the list
2411 were dealt with prior to distribution to the parties. 2 With respect to the list for Ms. Christie 3 and Mr. McCabe, Commission Counsel, involved with the 4 creation of the list, did not realize that this document 5 was on the MAG privilege list and needed to be dealt with 6 under rule 32. 7 Due to inadvertence on our part, the 8 normal practice of distribution to Counsel for the 9 Witness was not followed with respect to the list for Ms. 10 Christie and Mr. McCabe, and Counsel for MAG were not 11 provided with the list prior to distribution to the 12 parties. 13 As soon as they received the list, they 14 advised us that the document was on their privileged 15 document list. 16 We then advised the parties of the claim 17 for privilege and with some suggested -- suggestions with 18 respect to the document. 19 The MAG and Commission Counsel are still 20 in discussions with respect to portions of the document 21 that may be not privileged and subject to production. 22 And the -- what we intend -- what we've been advised by 23 MAG is that Counsel for the Ministry wish to deal with 24 this -- with the document under Rule 32 and have 25 requested that we deal with it under Rule 32.
2421 Now, the -- we're still -- I'm still 2 waiting for the formal position as to parts of the 3 document that we've been under discussion with them. So 4 that the document will be dealt with under Rule 32. 5 Now, having said that, Mr. Horner sent us 6 an e-mail late last night saying that he wished to 7 challenge, I guess, the position with respect to the 8 decision on privilege. Now, that decision on privilege 9 is dealt with under Rule 32 and is appropriate dealt with 10 under Rule 32. 11 And I responded to Mr. Horner with an -- 12 with an e-mail this morning setting up most of what -- 13 and to the other parties, most of what I've just told 14 you. And I don't know the -- now, as I understand it 15 from Mr. George on behalf of Mr. Horner, that he wishes 16 to still bring a motion with respect -- or the Chiefs of 17 Ontario wish to bring a motion, as I understand it, to 18 somehow challenge the process or the decision with 19 respect to the process under Rule 32. 20 And the -- anyone, I guess, can bring a 21 motion and have that motion dealt with by you. And -- 22 but if that were the case, then we would have to set up a 23 time for it, preferably actually on a Friday, in Toronto, 24 to deal with it. But the procedure is under Rule 32, 25 we're following that procedure and, in my respectful
2431 submission, the parties don't have standing to deal with 2 that. 3 But, having said that, the parties -- 4 parties are free to bring motions before you to get 5 decisions made. And I -- I don't know if Mr. Horner's 6 had the opportunity to review my e-mail but I understand 7 Mr. George's instructions on behalf -- from the Chiefs 8 are to continue with that. I know that Ms. Twohig, on 9 behalf of the Crown, thinks that's an inappropriate 10 procedure, that it clearly should be dealt with under 11 Rule 32. 12 And so that's where we're at with respect 13 to this particular document. 14 COMMISSIONER SIDNEY LINDEN: Now, you 15 mentioned that there's still some discussions, there's 16 still some discussions regarding what may or may not be-- 17 MR. DERRY MILLAR: Parts of the document. 18 COMMISSIONER SIDNEY LINDEN: -- subject 19 to production. 20 MR. DERRY MILLAR: Yeah. 21 COMMISSIONER SIDNEY LINDEN: But Mr. 22 Rosenthal is in the middle of his cross-examination. I 23 mean, he would need to know if some parts of the document 24 are made available to him, he would have to know what 25 they are before he can cross-examine on them or use them
2441 in his examination; is that not so? He doesn't know at 2 this point what, if any, part of the document he might be 3 able to use. 4 MR. DERRY MILLAR: Well, that's -- that's 5 correct. But the -- that has not -- that -- it's 6 unfortunate that this happens -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. DERRY MILLAR: -- this way but, you 9 know, there's -- only so much can be done -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DERRY MILLAR: -- in a very short 12 period of time. And the -- Mr. Rosenthal, I don't think, 13 has asked any questions on any of the parts that we're 14 talking about thus far. But that's the -- that's the 15 position -- 16 COMMISSIONER SIDNEY LINDEN: Well -- 17 MR. DERRY MILLAR: -- of Commission 18 Counsel. 19 COMMISSIONER SIDNEY LINDEN: I think, Mr. 20 Millar, that's the position that I -- perhaps didn't do 21 it as articulately as you did, but -- that I set out when 22 this matter came up before about Rule 32 and how it 23 operates. 24 And I said to, I think it was Mr. Roy, I'm 25 not sure, that I'm as interested in ensuring that I have
2451 access, that this Commission -- that's my function, 2 that's my job, that's my role, to ensure that every 3 document that is relevant and that isn't privileged is 4 before this Commission, and I'm doing what I can to 5 satisfy myself if that's the case. 6 And the way we do it is through the use of 7 Rule 32. 8 MR. DERRY MILLAR: And -- and I can 9 assure you, Commissioner, as Commissioner Counsel that's 10 what we're trying to do as well. We -- I would prefer -- 11 COMMISSIONER SIDNEY LINDEN: That's all-- 12 MR. DERRY MILLAR: -- to have no 13 privileged documents but there is a privilege. 14 COMMISSIONER SIDNEY LINDEN: It's a legal 15 privilege and it's not something that we can do anything 16 about. But, as I think on this particular issue, we're 17 all on the same side I think quite frankly. We're not 18 opposite in interest and that's why it's troubling me 19 that this seems to be such a difficult issue for us to 20 solve. 21 That we're just as interested in ensuring 22 that every document that's relevant is before this 23 Commission. So, I want you to know that and I want 24 everybody to know that. That's what we've been doing 25 since the outset and we will continue to do it.
2461 The documents that can't come before this 2 Commission; questions that can't be asked are regarding 3 documents that are subject to a claim of privilege. 4 MR. PETER ROSENTHAL: Yes. 5 COMMISSIONER SIDNEY LINDEN: That's it. 6 MR. JONATHON GEORGE: If -- if I could 7 just suggest you briefly, Commissioner, before My Friend 8 continues. I just want to reiterate that I'm appearing 9 in advancing this position to you on behalf of the Chiefs 10 of Ontario, a position in which the First Nation 11 obviously supports. 12 The second thing, I -- I want to be clear, 13 after hearing Mr. Millar's comments, I want to be clear 14 that we're not in this -- I may be stating the obvious 15 here, challenging the existence of a privilege. The 16 issue is whether or not there was a waiver of that 17 privilege. 18 COMMISSIONER SIDNEY LINDEN: Oh. 19 MR. JONATHON GEORGE: And I don't want to 20 get into the merits of the argument of it being disclosed 21 by the Ontario Provincial Police and all that. This 22 isn't the time and place for that. But I want to make 23 that position clear. 24 COMMISSIONER SIDNEY LINDEN: That's fine. 25 Then if you want to -- want to make that argument at some
2471 point, then we'll have to hear it I suppose. 2 MR. JONATHON GEORGE: And -- and the 3 second point I want to make is if I could just comment on 4 My Friend's comment with respect to Rule 32. We don't 5 dispute Rule 32. I've seen Rule 32 and understand Rule 6 32. 7 COMMISSIONER SIDNEY LINDEN: I'm hoping 8 that no one does. 9 MR. JONATHON GEORGE: Yes. 10 COMMISSIONER SIDNEY LINDEN: But, anyway, 11 go ahead. 12 MR. JONATHON GEORGE: And -- and my point 13 ultimately will be that the existence of Rule 32 and its 14 explicit reading doesn't necessarily mean a party doesn't 15 have the right to advance it to you, nor does it mean you 16 don't have the jurisdiction to consider it. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. JONATHON GEORGE: And -- and I 19 suppose where we're at now is we now have two (2) issues 20 to deal with. The issue of the waiver, and first of all 21 the jurisdictional issue as to whether or not the Chiefs 22 of Ontario as a party can advance it and whether you can 23 hear it. 24 And -- and quite frankly I would think 25 that that needs to be part of a fully briefed argument in
2481 front of you as well with the supporting case law. 2 COMMISSIONER SIDNEY LINDEN: Well, if you 3 want to bring that motion, you bring it. As Mr. Millar 4 said, there's a process for bringing a motion and we'll 5 deal with it. Hopefully on a Friday so we won't 6 interfere with our hearing of the evidence. 7 MR. DERRY MILLAR: I perhaps 8 misunderstood the position that Mr. Horner had set out. 9 I think that -- that we should try to arrange a time to 10 deal with the motion with respect to whether or not 11 there's been a waiver. 12 And so I will work with Mr. George and Mr. 13 Horner and the parties to try to set up a Friday in 14 Toronto to deal with that. 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 Now where are you, Mr. Rosenthal? 17 MR. PETER ROSENTHAL: Well, I had wanted 18 to speak to this some time ago and we got adjourned. 19 COMMISSIONER SIDNEY LINDEN: Yes. Well-- 20 MR. PETER ROSENTHAL: I should like us to 21 realize that this is a peculiar context that we're in 22 here. We have an inquiry called by the Government of 23 Ontario where they want you to find out all the facts and 24 then they are keeping some of the facts from us because 25 of solicitor/client privilege.
2491 COMMISSIONER SIDNEY LINDEN: Well, it's 2 not keeping it. It's because of solicitor/client 3 privilege -- 4 MR. PETER ROSENTHAL: Yes. 5 COMMISSIONER SIDNEY LINDEN: -- they're 6 not admissible -- 7 MR. PETER ROSENTHAL: No. But, sir, as 8 you well know, privilege can be waived. And I would have 9 thought that the Government would waive any 10 solicitor/client privilege so that we could get to the 11 bottom of every fact here. That's -- that's a context 12 that we should consider. 13 And then secondly, I didn't refer to a 14 document yet. 15 COMMISSIONER SIDNEY LINDEN: No, I know 16 that. That's why I thought Mr. George was up a bit 17 prematurely and so was Ms. Twohig. But they both felt 18 they needed to make the argument before it actually came 19 up. 20 MR. PETER ROSENTHAL: I was asking 21 questions of -- and you recall that what happened was 22 there was some concern as to whether my questions were 23 relevant or not because of the timeframe and I was 24 allowed to continue and then -- 25 COMMISSIONER SIDNEY LINDEN: Limited,
2501 limited right to continue and I think you -- 2 MR. PETER ROSENTHAL: Yes. I was only 3 continuing as they shed light on the events of September 4 5, 6, 7, in my submission at least, or potentially shed 5 light on that. 6 COMMISSIONER SIDNEY LINDEN: I'm not 7 sure -- 8 MR. PETER ROSENTHAL: In any event -- 9 COMMISSIONER SIDNEY LINDEN: I'm not sure 10 if you're finished with that yet. But if you've not 11 you -- 12 MR. PETER ROSENTHAL: I was not finished 13 with that -- 14 COMMISSIONER SIDNEY LINDEN: All right. 15 MR. PETER ROSENTHAL: -- and I should like 16 to continue and I, given, I guess, the present situation 17 I would not refer to any document. 18 COMMISSIONER SIDNEY LINDEN: Well, let's 19 move on there and see if we can finish and wind that 20 down. As I said, very limited. I don't intend to open 21 that up to a wide opening. 22 MR. PETER ROSENTHAL: Yes, sir. And you 23 did say a week or two (2) ago when this arose that you 24 would deal with it on a question by question basis, 25 that --
2511 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. PETER ROSENTHAL: -- and I was 3 testing the questions and -- 4 COMMISSIONER SIDNEY LINDEN: Deal with 5 what? Deal with the question of privilege. 6 MR. PETER ROSENTHAL: Privilege on a 7 question by question basis as well. I will not in light 8 of the previous discussion refer to any document but I 9 will ask some questions and they'll be dealt with 10 presumably. 11 COMMISSIONER SIDNEY LINDEN: Well -- 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Sorry, Dr. Christie. Does this bring 15 back warm memories of when you were a lawyer? 16 A: Well -- 17 COMMISSIONER SIDNEY LINDEN: Ms. Twohig 18 is still on her feet. 19 MS. KIM TWOHIG: I'm sorry. My 20 understanding is that the privilege is claimed over the 21 advice given, whether it's in written or verbal form, and 22 by asking the Witness questions about the legal advice 23 that was given, he's basically asking that privilege be 24 waived over that advice. 25 So, I wanted to object as soon as possible
2521 so that it couldn't be said that the Crown has 2 effectively waived privilege over the advice by failing 3 to object to the question. 4 COMMISSIONER SIDNEY LINDEN: And the only 5 way that he's able to ask these questions is because the 6 document was inadvertently -- 7 MS. KIM TWOHIG: That's right. 8 COMMISSIONER SIDNEY LINDEN: -- released; 9 is that right? 10 MS. KIM TWOHIG: Yes. 11 COMMISSIONER SIDNEY LINDEN: That makes 12 it a little more complicated. 13 MR. PETER ROSENTHAL: Well, with respect, 14 Mr. Commissioner, it was produced to the OPP, who 15 produced it to here, and the -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. PETER ROSENTHAL: -- the privilege is 18 not claimed on behalf of the OPP, it's -- that would be 19 an obvious waiver, it would seem, but in any event -- 20 COMMISSIONER SIDNEY LINDEN: Yes. But we 21 still have the question of -- we have to decide the 22 question of waiver and -- 23 MR. PETER ROSENTHAL: But, in any event, 24 Rule -- Rule 32 just deals with documents, and so we'll 25 have to deal with other things in other ways.
2531 COMMISSIONER SIDNEY LINDEN: Well, I'm 2 not sure if it deals only with documents. I don't have 3 the wording of it in front of me. But if a legal opinion 4 is privileged -- 5 MR. PETER ROSENTHAL: Yes. 6 COMMISSIONER SIDNEY LINDEN: -- it would 7 strike me that what's in the opinion is what's 8 privileged, not just -- 9 MR. PETER ROSENTHAL: Yeah. 10 COMMISSIONER SIDNEY LINDEN: -- a piece 11 of paper. 12 MR. PETER ROSENTHAL: In any event, I -- 13 I will, if I may, ask questions and if they're objected 14 to -- 15 COMMISSIONER SIDNEY LINDEN: Well, as I 16 say, I want to keep this very tight, Mr. Rosenthal -- 17 MR. PETER ROSENTHAL: Yes, sir. 18 COMMISSIONER SIDNEY LINDEN: -- because 19 I'm worried about opening up a whole area that we simply 20 can't go down. 21 MR. PETER ROSENTHAL: Now, we had 22 established that this Witness was aware of concerns with 23 respect to providing a judicial forum for review of what 24 happened on September 5, 6, 7, or roughly in that time, 25 and that those concerns affected subsequent consideration
2541 of injunctions. We had established that much. I'm just 2 going to continue from there if I may. 3 COMMISSIONER SIDNEY LINDEN: Without 4 referring to the documents. 5 MR. PETER ROSENTHAL: Without referring 6 to any document. And I have not referred to any 7 document, except to say that I'm not referring to a 8 document. 9 COMMISSIONER SIDNEY LINDEN: But you're 10 referring to the contents of a document. 11 MR. DERRY MILLAR: Well -- 12 MR. PETER ROSENTHAL: I've learned 13 something from reading that document, I don't see any 14 rule -- 15 COMMISSIONER SIDNEY LINDEN: Well, I -- 16 MR. PETER ROSENTHAL: -- that would 17 disabuse me of anything. 18 COMMISSIONER SIDNEY LINDEN: -- I think 19 that might be a problem. That might be a problem. 20 MR. PETER ROSENTHAL: Well -- 21 COMMISSIONER SIDNEY LINDEN: Yes, Mr. -- 22 MR. DERRY MILLAR: The problem is this; 23 the privilege attaches to the advice given by the lawyer 24 to the client. And that privilege, unless waived, is a 25 privilege that applies whether the -- it's in written
2551 form or whether the lawyer is being asked a question in 2 open court. It's the same issue of privilege. 3 It's just that that privilege issue isn't 4 dealt with under Rule 32, it's -- it's a question of 5 privilege, but it's the same -- it's the same privilege 6 issue. It's just simply the document -- the document 7 itself is dealt with under Rule 32. 8 Ms. Twohig has raised the issue of the 9 advice and the privilege on the -- with respect to the 10 advice. So -- and unless it's waived, that there is a 11 privilege. And they're not waiving it and subject to 12 whether there -- the argument whether there has been a 13 waiver -- 14 COMMISSIONER SIDNEY LINDEN: Your view is 15 that this area is privileged. 16 MR. DERRY MILLAR: My view is that it's 17 privileged. 18 COMMISSIONER SIDNEY LINDEN: Okay. 19 MR. DERRY MILLAR: The fact that -- 20 MR. PETER ROSENTHAL: I'm not asking 21 about legal advice, Mr. Commissioner. 22 MR. DERRY MILLAR: Well, if he doesn't 23 ask about legal advice, then I -- I think that's a 24 different situation. 25 MR. PETER ROSENTHAL: Yes. And --
2561 COMMISSIONER SIDNEY LINDEN: That's what 2 he's trying to do, I gather, yes. 3 MR. JONATHON GEORGE: I -- I think Mr. 4 Millar's comments have actually hit the nail right on the 5 head. I mean, it would be very difficult for anyone -- 6 COMMISSIONER SIDNEY LINDEN: They usually 7 do. 8 MR. JONATHON GEORGE: -- it would be very 9 difficult for anyone at this point to continue a cross- 10 examination on any issue even remotely related to the -- 11 to the privilege, Derry, without having that scope 12 defined. 13 I mean, at this point we don't know the 14 breadth of the privilege which is being claimed, or which 15 parts have been waived and which parts haven't been 16 waived. 17 COMMISSIONER SIDNEY LINDEN: Are you 18 referring now to the particular document? 19 MR. JULIAN FALCONER: Well -- well, I'm 20 responding, in part, to the -- to the more recent 21 development and Mr. Millar's comments and Mr. Rosenthal's 22 comments with respect to advice, which has, sort of, 23 developed from our discussion about the document. But, I 24 think it highlights the problem of not having the -- the 25 waiver defined. I mean, we don't really know what we're
2571 dealing with at this point. 2 COMMISSIONER SIDNEY LINDEN: I'm not 3 sure. 4 MR. DERRY MILLAR: Well, at -- at this 5 point, there -- the Crown takes the position -- and there 6 hasn't been any wai -- that there hasn't been any waiver. 7 The -- the discussions that -- that 8 Commission Counsel are having with the Crown over parts 9 of the document haven't come to fruition yet and won't 10 come to fruition this -- well, Mr. Rosenthal's here, 11 unless he's here tomorrow morning. And -- but the -- and 12 then we have a problem with our witness. But -- 13 COMMISSIONER SIDNEY LINDEN: No. 14 MR. DERRY MILLAR: -- the -- but there -- 15 My Friend said he's not going to ask questions of legal 16 advice -- 17 COMMISSIONER SIDNEY LINDEN: So, let's 18 see if we can -- 19 MR. DERRY MILLAR: -- and if he does, we 20 can -- 21 COMMISSIONER SIDNEY LINDEN: -- proceed 22 and let's see if we can get the Witness finished before 23 the end of the day. 24 MR. PETER ROSENTHAL: I assure you, sir, 25 I am doing my best in both those respects.
2581 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: Dr. Christie, sorry for all the 4 above. May I ask you, the OPP was not your client ever; 5 is that correct? 6 A: That's correct. 7 Q: Now, you told us that you had some 8 indication of concerns about there being a provision of a 9 judicial forum for review of police operations during 10 this period for a review of what happened during this 11 period. 12 Did you get wind of -- did you understand 13 that there were such concerns on behalf of the OPP? 14 A: I don't know anything about that. 15 Q: You never heard of any of that at 16 all? Any concerns that -- that the OPP, in fact, that 17 the OPP decided that they didn't want to pursue an 18 injunction any more at some period after September 11, 19 because of such concerns? 20 You didn't hear about that? 21 A: I recall -- 22 COMMISSIONER SIDNEY LINDEN: Yes, now 23 you're getting Ms. Tuck-Jackson now. 24 MS. ANDREA TUCK-JACKSON: Mr. 25 Commissioner, I'm just concerned with My Friend's
2591 characterization that the OPP didn't pursue it further. 2 The OPP was not pursuing the injunction in 3 the first place. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MS. ANDREA TUCK-JACKSON: They were a 6 witness. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MS. ANDREA TUCK-JACKSON: As called by 9 the Crown. 10 MR. PETER ROSENTHAL: Yes, I should have 11 stated that more correctly. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Did you not hear that, in some 15 months, perhaps, or weeks, I don't know the time frame, 16 after September 11, let's say, 1995, that the OPP or some 17 high officers at least, of the OPP, were expressing the 18 view that they preferred that there not be a continuation 19 of the injunction application, because of the risk that 20 such a hearing would get into what happened surrounding 21 the death of Dudley George? 22 A: So I recall becoming aware and I 23 honestly don't know through which channels and exactly 24 when, but I do recall becoming aware that the OPP was -- 25 was not at all interested in having an injunction
2601 pursued. 2 COMMISSIONER SIDNEY LINDEN: This is 3 months later, you're talking about. 4 THE WITNESS: Months later. 5 COMMISSIONER SIDNEY LINDEN: Just to make 6 it clear. 7 THE WITNESS: Yes. But the -- the 8 reasons that the OPP had for that, I don't know. 9 COMMISSIONER SIDNEY LINDEN: Okay, move 10 on. 11 MR. PETER ROSENTHAL: Okay, thank you. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Now, the OPP was not your client; who 15 was your client? Who did you regard as your client? 16 A: Well, in general terms, the 17 Government of Ontario, the Crown, is my client. 18 Q: I see. 19 A: And in specific terms, depending on 20 the magnitude of an issue, the -- that might have a 21 specific client with respect to an issue. 22 So, in this case, my client were the -- 23 was the -- was the Government of Ontario and then we -- 24 within that, we were representing the Attorney General 25 and the Minister of Natural Resources.
2611 Q: Thank you. Now, at the time of the 2 injunction application that was made on September 7th, 3 did -- did the OPP decline to serve the materials? 4 Is that your understanding or what 5 happened from your understanding? 6 A: So, my understanding of -- and what 7 Mr. McCabe told me in the -- in the evening following his 8 telephone conversations was that he had been advised that 9 they would -- they had being -- the OPP, and in 10 particular, I believe, the discussion specific 11 discussions he was having was with Detective Wright, 12 although it may -- may have been Inspector Linton, that 13 they would endeavour to serve the documents, but that 14 they -- as the evening was progressing, they -- their 15 expectation of succeeding in delivering the documents was 16 getting lower and lower. 17 Q: I see. So, you're not aware of any 18 declining by them in -- 19 A: No. 20 Q: I see. 21 A: No, the last I -- the last I recall - 22 - so that -- to my recollection of the sort of final 23 analysis, Tim got off the phone and said, Well, they -- 24 you know, I asked them to do their best, but they said 25 that it's extremely unlikely it's going to happen.
2621 Q: Thank you. If you could turn please, 2 again, to Tab 19 of your document brief. 3 4 (BRIEF PAUSE) 5 6 Q: And this is the Motion record which 7 is now Exhibit P-551 to these proceedings. I believe 8 that this was the copy that your counsel indicated was 9 retrieved from the court file, am I correct, Ms. Twohig? 10 Or a photocopy of -- 11 MS. KIM TWOHIG: I believe -- I believe-- 12 MR. PETER ROSENTHAL: A photocopy 13 thereof, obviously. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: Now, I would suggest to you that this 17 does not appear to have been ever faxed anywhere. 18 A: That's true. 19 Q: There's no -- 20 A: It doesn't -- 21 Q: -- fax indications on it, right? 22 A: That's right. 23 Q: As opposed to all the documents that 24 you faxed out that night that on each page, at the top, 25 it says something about Attorney General and so on,
2631 right? 2 A: Well, that's right, and this document 3 also has the actual sworn affidavit of Mr. Kobayashi -- 4 Q: Yes. 5 A: -- attached to it and, of course I, 6 he -- I commissioned that affidavit in the morning. 7 Q: Yes. So this was, evidently, a copy 8 of the Motion record that you and/or Mr. McCabe provided 9 to the court on the morning rather than the faxed copy 10 from the night before, right? 11 A: That's correct. 12 Q: Thank you very much, Mr. 13 Commissioner. Thank you, Dr. Christie. I'm sorry it 14 took so long. 15 A: That's all right. 16 Q: It wouldn't have been so long if I 17 hadn't been so pleasantly interrupted. Thank you. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 thank you very much, Mr. Rosenthal. 20 This is never easy, but everybody is 21 behaving very professionally. Thank you very much. 22 I think we're almost done. We have now 23 Mr. Neil who indicated that he would be quite short, but 24 I don't recall exactly what your estimate was. 25 Perhaps you'd remind me?
2641 MR. CAMERON NEIL: Commissioner, it was 2 half an hour. 3 COMMISSIONER SIDNEY LINDEN: Is that 4 still accurate? 5 MR. CAMERON NEIL: Possibly less. 6 COMMISSIONER SIDNEY LINDEN: Okay. 7 MR. CAMERON NEIL: And I suspect it will 8 be less controversial. 9 COMMISSIONER SIDNEY LINDEN: One never 10 knows. 11 12 CROSS-EXAMINATION BY MR. CAMERON NEIL: 13 Q: Good afternoon, Dr. Christie. 14 A: Good afternoon. 15 Q: My name is Cam Neil and I'm one of 16 the Counsel for the residents of Aazhoodena, also known 17 as the Stoney Pointers, and they've also been 18 characterized in the past as dissidents. 19 And I know that yesterday, in your 20 evidence, that you were quick to point out that that 21 wasn't your term, correct? 22 A: That's correct. 23 Q: And I felt, listening to you, that 24 you really wanted to stress that point; is that correct? 25 A: That's probably fair. I don't think
2651 I really wanted to stress it, but I don't really like the 2 word, so. 3 Q: Other than not liking the word, is 4 there any other reason why you wanted to make that point? 5 A: Well, it's a slightly disparaging 6 term in my -- in my view, and I don't think it's 7 appropriate, really, to refer to people in disparaging 8 terms and it was a term that was being used that, in 9 retrospect, doesn't seem -- may be interpreted as being 10 disrespectful and it certainly wasn't intended to be so 11 by me. 12 Q: Now, I also believe that your 13 evidence is that, at least on the meeting of September 14 the 5th, the situation at Ipperwash was not considered by 15 most to be that urgent; is that correct? 16 A: That's fair. 17 Q: But at some point along the way, that 18 changed, right? 19 A: Yes. 20 Q: It was felt that, in fact, it was 21 urgent? 22 A: Yes. 23 Q: Was that felt by most of the people 24 at the meeting or just some people at the meeting? 25 A: Which meeting?
2661 Q: The meeting of September the 5th, 2 firstly, not urgent; correct? 3 A: Well, I think, not to be 4 obstreperous, but I think that the discussions from 5 yesterday were pretty detailed about when were things 6 urgent and when were things not urgent and -- 7 Q: Right. 8 A: -- I don't want to -- 9 Q: Yeah, I do apologize, I'm trying -- 10 A: -- oversimplify or over-generalize 11 the things -- 12 Q: Yeah. 13 A: -- that I said yesterday, and I'm 14 sure you don't want to go back through all those pages. 15 Q: There will be a trend of my 16 questioning that I will try to, sort of, look at the 17 overview. 18 But on September the 6th, then, to be more 19 specific, would you characterize the views of the people 20 attending that -- that meeting, that most of them felt 21 that it was still not an urgent situation, with the 22 exception of a few? 23 A: I'd have to do a body count on the -- 24 on the names of who was there to say whether it was most 25 or not most or -- there were certainly some people who --
2671 some people who continued to be of the view that -- that 2 this was not a particularly urgent, though -- situation, 3 though it was -- certainly the information we were 4 getting was that the situation was escalating in 5 seriousness. 6 Q: Okay. That's fair. And part of that 7 escalation concern, there was a concern for public safety 8 and public safety was important; that's correct? 9 A: Yes. 10 Q: And that concern for public safety, 11 did that -- did that contain or did that also entail a 12 concern for the safety of the people who were occupying 13 the Park? 14 A: Yes. 15 Q: Do you recall in particular people 16 saying words to that effect? 17 A: I do have a vague recollection at one 18 (1) of the meetings and certainly subsequently of -- of 19 there being discussions about the safety of the people 20 who were actually in the Park. 21 Q: If I could turn you now to Tab 8 of 22 your materials, it's Inquiry Document 101232. I don't 23 have the exhibit reference but I'm assuming that it is 24 one. 25 COMMISSIONER SIDNEY LINDEN: I think it's
2681 498. 2 THE REGISTRAR: P-498. 3 COMMISSIONER SIDNEY LINDEN: 498, is that 4 right? 5 THE REGISTRAR: Yes. 6 7 CONTINUED BY MR. CAMERON NEIL: 8 Q: In particular, Dr. Christie, if you 9 could first turn to the page labelled, "Appendix." 10 A: That's the only -- that's where mine 11 starts. 12 Q: Oh, really? 13 A: Yes. 14 Q: Do you have a page 2... 15 A: Yes. 16 Q: ...to that appendix? Do you see, 17 there's several numbered paragraphs? I'd like to turn 18 you in particular to paragraph 11; do you see that? 19 A: Yes. 20 Q: Okay. That paragraph states: 21 "The Committee will have discretionary 22 powers to..." 23 And I understand that the Committee 24 obviously refers to the IMC Aboriginal Emergency 25 Committee?
2691 A: It's my understanding, yes. 2 Q: You've seen this document before or-- 3 A: Yes. 4 Q: -- or only recently? 5 A: Only recently actually. 6 Q: Okay. 7 A: Yeah. 8 Q: Do you have any reason to doubt that 9 this document would have been provided to those attending 10 the IMC meeting, I believe, on August the 2nd? 11 A: I don't have any reason to believe 12 that this document would have been provided to the 13 members. 14 My -- my understanding of where this 15 document comes from is that it was -- where it was 16 originally generated, I don't know, but that it was 17 actually a -- an addendum or an appendix to briefing 18 materials provided by somebody at ONAS to the new 19 minister responsible for Native Affairs or the -- and the 20 -- or the Attorney General or to somebody, to bring them 21 -- to bring the new government up to speed on what this 22 committee was all about. 23 Q: Okay. 24 A: So I hadn't -- as a member of the 25 Committee, no one had ever handed me, at my first
2701 meeting, a copy of this document and said, This is what 2 we're all about. 3 Q: Okay. 4 A: Yeah. 5 Q: In that case, let's just go through 6 those items, let's just quickly run pass them and we -- 7 A: Sure. 8 Q: -- can talk about them. It says: 9 "The Committee will have discretionary 10 powers to: 11 a) Define problem. 12 b) Agree to a negotiating agenda with 13 all parties. 14 c) Make decisions on third party 15 intervention. 16 d) Appoint a facilitator/ negotiator. 17 e) involve the Indian Commission of 18 Ontario. 19 f) Second Ontario Public Servants on 20 an emergency basis. 21 g) Recommend that legal action be 22 taken." 23 A: Yes. 24 Q: Bearing that in mind, Dr. Christie, 25 would you identify for me which of those, if any, any of
2711 those powers were used at the meetings of September 5th 2 and 6th? We could go one (1) -- 3 A: I would say pretty much all of them. 4 Well, so that we were certainly attempting -- I mean -- 5 Q: Well, the first one is -- 6 A: -- you know, within reason. So -- so 7 we were attempting to -- to define the problem. We were 8 -- we were there, meeting, talking about the -- the 9 occupation of the Park, and there were discussions about 10 how to find out exactly why there was this occupation and 11 what people were looking for. 12 Agree to a negotiating agenda. We were 13 quickly advised by members -- by members of the Committee 14 that -- that arguably had authority to tell us this, that 15 we weren't going to be negotiating. So -- 16 Q: And -- 17 A: -- so that was dealt with. 18 Q: If I could stop you right there. 19 Specifically, those -- 20 A: Sure. 21 Q: -- members were? 22 A: Well, in particular, Ms. Hutton made 23 it clear. I'm not sure if others were also, but 24 certainly Ms. Hutton did. And then, to make a decision 25 on third party intervention, frankly, I'm not sure what
2721 that means and how the Committee could be making 2 decisions about third-party interventions and where that 3 would be applicable and whether it was applicable in this 4 case, I don't -- I -- I would say it's sort of a not 5 applicable mat -- in the list. 6 Appoint a facilitator/negotiator, again, 7 that was also not applicable for reasons I just 8 mentioned. Involve the Indian Commission of Ontario. I 9 don't recall if there was a discussion about whether or 10 not the Indian Commission of Ontario should be called 11 about this matter. I don't have a specific recollection 12 of that. 13 Second Ontario Public Servants on an 14 emergency basis. We -- I think it's probably safe to say 15 that in the context of this situation we had at the table 16 everyone that was -- that seemed to be necessary for -- 17 for dealing with this situation so we didn't need to 18 second anybody. 19 And recommend that legal action be taken 20 was the final outcome of the discussions. 21 Q: So I -- I would actually suggest to 22 you that -- that (g), that item was, at least with 23 respect to the meeting on the 6th, the bulk of the 24 discussions of that meeting involved 11(g), that would be 25 recommend that legal action be taken. And the
2731 discussions related thereto. 2 A: That's probably fair, yes. 3 Q: Doctor, do you recall whether you had 4 any expectation going into the September 5th meeting that 5 ONAS would be involved in meeting with the occupiers? 6 A: The September 5th meeting was the 7 first meeting so no, I -- no, I didn't have any 8 expectation. I -- I didn't -- we didn't even know the 9 details of what was going on at that point. 10 Q: And with respect to the September 6th 11 meeting, did you have any such expectation? 12 A: Expectation? Somebody from ONAS 13 would be -- no, I didn't have any expectation. 14 Q: Was there discussion of a member or 15 someone from ONAS meeting with the occupiers at either of 16 the two (2) meetings? 17 A: My recollection is that early on and 18 I'm sure that the handwritten notes are much more 19 accurate than -- than my specific memory, but my 20 recollection is that there was early discussions about 21 whether or not -- whether or not we might appoint 22 somebody to negotiate or have discussions. 23 And the decision -- so initially the 24 decision was made to -- to maintain that -- that line of 25 -- all lines of communications between the Ministry of
2741 Natural Resources. 2 Subsequently it was sort of primarily the 3 OPP and -- and potentially the Ministry of Natural 4 Resources, so, no. There may have been some discussion 5 about whether or not someone from ONAS should be involved 6 but the decision was quickly made that it would not be. 7 Q: Thank you. Among the -- the members 8 that attended the two (2) meetings of the 5th and the 9 6th, would it be fair to say that there was a -- a 10 recognition that there was a need not to escalate the 11 situation at Ipperwash but rather to keep it under 12 control? 13 A: I think it's fair to say that was 14 everyone's goal, yes. 15 Q: And I would suggest to you that in 16 meeting that goal, it was important to share information. 17 I'm speaking in very general terms. 18 A: That's why the Interministerial 19 Committee was meeting. It was to share information. 20 Q: In fact that's the whole purpose or 21 one of the main purposes of -- of that Committee? 22 A: That's one of the purposes, yes. 23 Q: We've heard other witnesses speak to 24 a feeling that over the course of the two (2) meetings 25 there was a certain amount of tension. And I'm
2751 wondering, either with respect to the 5th or the 6th, if 2 you, in fact, felt that same tension? 3 A: Yes. I think I -- I hope that I've 4 described that that I certainly felt there was some -- I 5 felt -- I felt tense and I felt there was some tension in 6 the room. 7 MR. CAMERON NEIL: I'm just making sure 8 I'm not repeating questions, Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 11 (BRIEF PAUSE) 12 13 CONTINUED BY MR. CAMERON NEIL: 14 Q: Doctor, would you agree with me that 15 the options that were discussed, the legal options that 16 were discussed, one being charging the occupiers with 17 mischief and the other being using the Trespass to 18 Property Act, were regarded as really not much of an 19 option at the end of the day? 20 I can rephrase -- 21 A: Yeah.. 22 Q: -- rephrase the question if you like. 23 A: Yeah, maybe you could. 24 Q: Is it -- is it safe to say that those 25 options didn't really have much teeth.
2761 A: Yes, I think that the discussion was 2 essentially that -- that in practical terms, given the 3 situation that -- that -- that we were dealing with, if 4 you laid charges under those statutes, although you may 5 eventually -- you may well succeed and, frankly, the 6 legal opinion was you probably would succeed on several 7 of those bases, but that that wasn't going to have the 8 effect of -- of ending the occupation very quickly. 9 Q: Now you've spoken at some length on 10 your advice with respect to proceeding ex parte or with 11 notice. 12 Was it -- is it your evidence that you 13 never actually advised not to go ex parte. You basically 14 just said what the options were? 15 16 (BRIEF PAUSE) 17 18 A: Well, the -- certainly the -- the 19 recommendation was that -- that this was not a good case 20 for an ex parte injunction. 21 22 (BRIEF PAUSE) 23 24 Q: If you wouldn't mind, could you 25 characterize what you felt the role of ONAS was at the
2771 meetings of the 5th and the 6th? 2 A: Well, I can tell you what my sense of 3 what -- 4 Q: That's all I -- 5 A: -- ONAS was, I don't -- 6 Q: -- can ask for. 7 A: -- I can't -- ONAS was the 8 facilitator of these meetings. They were the lead in 9 organizing them. They were usually chaired by the 10 Director of Legal Services and as the Ontario Native 11 Affairs Secretariat, part of the job of the Native 12 Affairs Secretariat, generally, was to co-ordinate -- co- 13 ordinate the Government's approach to Aboriginal issues 14 on -- in sort of all -- in all matters or in most 15 matters. 16 So it wasn't -- it was sort of an 17 appropriate role for them to be the kind of -- they were 18 the co-ordinating force and then if -- if usually if 19 negotiators -- if negotiators beyond the lead ministry, 20 by lead ministry I mean either -- you -- typically either 21 Ministry of Natural Resources or the Ministry of 22 Transportation, they were the most commonly involved 23 ministries on the front lines, if there -- if there was a 24 need for negotiators or -- or advisors beyond that 25 ministry then they would come from ONAS.
2781 ONAS also had the wealth of information 2 about Aboriginal historical matters in the province and 3 so we would often rely upon their researchers and 4 negotiators for that kind of information, opinions and so 5 on, as well as their legal staff. 6 Q: Thank you. So at the end of the 7 September 6th meeting, basically, the participants of 8 that meeting were to take the recommendation at -- the 9 final recommendations back to their respective ministers. 10 Is that -- is that true? 11 A: Yes. 12 Q: And then it was essentially up to the 13 ministers to consider those recommendations. 14 That was your understanding? 15 A: Yes. 16 Q: And there was no further meeting 17 planned when the September 6th meeting was adjourned? 18 A: My recollection is that Julie Jai, as 19 the Chair, had indicated that -- that the various parties 20 were to go out and speak to their ministers and the 21 ministers were to speak amongst themselves as 22 appropriate. 23 And -- and that she -- information would 24 be -- or sort of advice would be funnelled back to her 25 and she would then communicate out to the parties, again,
2791 what the situation -- that was very common. 2 So it's -- so it was one of those 3 situations where, if our recommendation is -- is -- is -- 4 if the recommendation of the Committee is accepted and -- 5 and specific individuals are given instructions to do 6 their thing, in the context of those recommendations, 7 then there's no need to meet again. 8 It was really only a matter of if there 9 was something more to do. 10 Q: Okay. 11 A: And I honestly don't know whether the 12 -- the Committee met again at -- when -- when Tim and I 13 were in Sarnia and London, I don't think it did. 14 15 (BRIEF PAUSE) 16 17 Q: Doctor, is it -- is it fair to say 18 that, at least on September the 6th, the -- the purpose 19 of the meeting was how to get the occupiers out of the 20 Park? 21 A: Well, I don't know if it's fair to 22 say the purpose of the meeting -- when I went to the 23 meeting on September 6th, the purpose of the meeting was 24 to continue the discussions and get more information and 25 -- and develop recommendations as to what to do about the
2801 occupation of Ipperwash Park. 2 Ultimately, of course the -- the goal of 3 those -- the meeting was to -- to end the occupation 4 because we believed that Ontario had proper title. And 5 if we hadn't intended to end the occupation, we wouldn't 6 have bothered to meet. 7 Q: Those -- those options, those 8 discretionary powers of ONAS that I referred to earlier, 9 that 11(a) to -- (a) to (g). 10 A: I think those are the discretionary 11 powers of -- of the Committee, not ONAS. 12 Q: Of the Committee, yes. Not of ONAS, 13 of the Committee. My apologies. 14 Is it fair to say that if it were not for 15 the views of the Premier at the time, as voiced through 16 his assistant, some of those options may have been 17 discussed more fully? 18 A: I -- I don't really know how to 19 answer that question. I mean, my evidence is that it was 20 primarily Ms. Hutton's advice that we weren't going to be 21 negotiating. So I suppose you can make whatever 22 inferences you like from -- from that. I don't know. 23 Q: Thank you, Doctor. Commissioner, 24 those are all my questions. 25 COMMISSIONER SIDNEY LINDEN: Thank you
2811 very much, Mr. Neil. 2 Mr. George...? 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: How long is 7 your estimate now, Mr. George? 8 MR. JONATHON GEORGE: I -- I believe I 9 estimated to be in the range of a half hour to forty-five 10 (45) minutes. I -- I don't expect to be that long. 11 COMMISSIONER SIDNEY LINDEN: Are you 12 going to do one (1) examination or one (1) for both, or 13 how -- 14 MR. JONATHON GEORGE: For both. I -- 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 MR. JONATHON GEORGE: And I actually 17 expect to be quite brief, contrary to the impression I 18 may have given over the last hour. But I -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. JONATHON GEORGE: -- I think the 21 issues that I raised may become more pertinent to the 22 following witness and not Ms. Christie in particular. 23 24 CROSS-EXAMINATION BY MR. JONATHON GEORGE: 25 Q: Good afternoon, Dr. Christie.
2821 A: Good afternoon. My name is Jonathon 2 George and I represent the Chippewas of Kettle and Stony 3 Point First Nation. And for the balance of this week I'm 4 appearing for Mr. Horton who represents the Chiefs of 5 Ontario. And as I indicated to the Commissioner, I -- I 6 won't be long at all. I just have a couple of areas to 7 cover with you. 8 Now, you described hearing, in the context 9 of the Interministerial Committee meetings you attended 10 on September 5th and 6th and perhaps even on -- in the 11 August 2nd meeting, comments to the effect that Chief 12 Bressette didn't support the occupation and comments to 13 the effect that Chief Bressette supported the position of 14 the Government; do you recall giving that -- that 15 testimony -- 16 A: Yes. 17 Q: -- yesterday? Okay. Now, I -- I 18 understand your testimony to be that, in your view, at 19 least from your perception, that information as you heard 20 it was being obtained by the Ontario Provincial Police on 21 the ground and was being relayed in some fashion at the 22 meetings you were attending? 23 A: I think, as much or more than the 24 OPP, it was through the Ministry of Natural Resources' 25 staff.
2831 Q: Ministry of Resources, okay. And 2 that's who you were hearing it from in those meetings? 3 A: Yes. 4 Q: Okay. And do you recall whether or 5 not that information, in terms of where it was sourced, 6 was the OPP? 7 Did that happen as well or was it all 8 emanating from MNR sources? 9 A: I -- I'd have to look at my notes to 10 see specifically but my -- 11 Q: Okay. 12 A: -- recollection is that it was 13 primarily through the Ministry of -- 14 Q: Okay. 15 A: -- Natural Resources. 16 Q: Thank you. That's fine. 17 A: And whether it was only the people on 18 the ground or -- or if it was also people in Toronto, I'm 19 not sure. 20 Q: Okay. 21 A: Yeah. 22 Q: And is it fair to say, Dr. Christie, 23 that the information you were receiving was one-sided, so 24 to speak, and let me clarify that a little bit. You were 25 hearing of this general position of Chief Bressette and
2841 the Band and what you were not hearing was information as 2 to who, specifically, was speaking to Chief Bressette and 3 what information in particular was being conveyed to 4 Chief Bressette. 5 A: Okay. Well, if I look at my notes of 6 the 6th, there certainly is a notation that in the OPP 7 information which would have been being relayed to us by 8 Ron Fox that indeed -- 9 Q: Okay. 10 A: -- he did relay that the Chief has 11 said the Band does not support the activity. 12 Q: Right. 13 A: There -- then there's the question 14 about whether or not the Chief might support it. And -- 15 Q: Certainly take whatever -- 16 A: Yes. 17 Q: -- time you need to refer to your 18 notes. But, I guess the point I'm driving is that you 19 don't today recall discussions around what was being 20 conveyed to Chief Bressette. You were simply hearing of 21 this position of the Band and of Chief Bressette. 22 A: So, what I recall is that Chief 23 Bressette was -- was fairly actively communicating with-- 24 Q: Yes. 25 A: -- probably, both the Ministry of
2851 Natural Resources staff and the OPP. And in fact I do -- 2 I recall at least one report that Chief Bressette had 3 gone to -- had gone to the location of the Park. 4 And -- and I believe he might actually 5 have even tried to -- it might have been him or -- or 6 somebody else in the Band Council that had actually tried 7 to go and speak to the -- the occupiers. And -- and 8 having sort of spoken to the OPP and the Ministry of 9 Natural Resources and said I'm going to go down and try 10 to -- to speak to them and see if we can -- see what's 11 going on and settle this down or something -- 12 Q: Okay. Are you referring to documents 13 being delivered to the Army Camp on behalf of some of the 14 -- on behalf of the Band or Chief Bressette? 15 Is that what you're referring to? 16 A: No. 17 Q: Does that ring a bell? Okay. 18 A: No. I'm referring to a report that - 19 - that I recall of -- of an individual -- 20 Q: Okay. 21 A: -- going -- driving down the road 22 with the intent of -- of speaking to the occupiers. And 23 it was either a member of the -- I believe it was either 24 a member of Council or Chief Bressette himself. 25 And I recall being -- there were reports
2861 sort of -- numerous reports of Chief Bressette being down 2 -- so -- so -- talking about not supporting it. I have 3 some recollection that there was even news media reports 4 to that effect. 5 Q: Okay. 6 A: And I don't know if they came 7 directly from Chief Bressette or -- or who. 8 Q: So, in addition to reports from MNR 9 and OPP, you were aware of media reports at the time as 10 well. 11 A: I believe so. 12 Q: Okay. Okay. Now, you discussed 13 during your testimony the -- the issue of whether or not 14 Chief Bressette -- an affidavit could be obtained from 15 Chief Bressette in terms of the injunction application 16 motion. 17 Do you recall -- 18 A: Yes. 19 Q: -- talking about that? 20 A: Yes. 21 Q: Okay. And you described it as being 22 a potentially powerful tool. 23 A: Yes. 24 Q: Do you recall giving that evidence 25 yesterday?
2871 A: Yes. 2 Q: And what -- it wasn't clear to me 3 from your testimony was whether or not that was something 4 actively discussed at the IMC meetings, or whether that 5 was just your own thought, that you thought it would be a 6 powerful tool? 7 A: I certainly discussed it with Tim 8 McCabe. 9 Q: Okay. 10 A: And we certainly had discussed it 11 with the Ministry of Natural Resources legal staff. And 12 the extent of the discussion at the Interministerial 13 Committee meeting, it was certainly raised and -- and 14 whether -- I mean the extent of the discussion I don't 15 recall how lengthy the discussion was at -- at the 16 Committee meeting. 17 Q: It was discussed at a meeting or the 18 meetings? 19 A: Yes. Yes. 20 Q: Okay. 21 A: And there are notes to that affect, 22 yes. 23 Q: And I take it Deb Hutton was present 24 when that was discussed? 25 A: Yes.
2881 Q: Is that your recollection? 2 A: Yes. 3 Q: Okay. The issue of Chief Bressette, 4 his position and whether or not his evidence would be a 5 powerful tool at an injunction. That -- 6 A: Well I'm -- 7 Q: Your recollection was discussed in 8 the presence of Deb Hutton? 9 A: What I'm not sure of -- of what 10 you're just saying -- is whether or not the specific 11 comment that the affidavit would be a powerful tool was 12 mentioned -- 13 Q: Sure. 14 A: -- was mentioned. Certainly there -- 15 in my notes say and I certainly recall this that Tim 16 McCabe said if, you know, Can we get an affidavit from 17 Chief Bressette. And shortly after that Ms. Hutton 18 indicates that, No, we don't want to be seen to be -- 19 that's where the comment, we don't want to be seen to be 20 working with the Indians -- 21 Q: Okay. 22 A: -- at all came in. And we took that 23 as an indication that -- that we weren't going to be 24 getting an affidavit. 25 Q: Okay. So -- and that's actually the
2891 point I was going to ultimately make was that, discussion 2 about the Chief's position, discussion about the Band's 3 position, discussion -- forgetting about the use of the 4 term powerful tool, discussion about him possibly 5 providing evidence. That was discussed at these 6 meetings -- 7 A: Yes. 8 Q: -- in the presence of Deb Hutton. 9 A: Yes. 10 Q: Okay. Now, further to your -- to the 11 comment you just made, Dr. Christie, and -- and if you 12 need to, I'm going to be referring to -- I believe it's 13 Tab 14 in -- in Commission Counsel's brief. 14 A: Yes. 15 Q: It's the notes you were just 16 referring to actually. And I believe on the fourth page 17 in, the front number ending 364, that's your notation 18 with respect to Deb Hutton's conversation -- or Deb 19 Hutton's comments? 20 A: Yes. 21 Q: In the context of -- of a 22 communication with Chief Bressette. And I guess what I 23 want to confirm, and you have already done that, Dr. 24 Christie, was that in terms of understanding the flow of 25 that conversation, Deb Hutton's comments was in --
2901 comment was in direct response to the issue of him 2 providing evidence or was it in response to communication 3 with him in any way? 4 A: Well, my best recollection -- I mean, 5 I -- you know, I don't -- is that it came fairly shortly 6 after. And whether there was a bit of other discussion 7 in between, I -- I'm not sure. Whether there were other 8 words spoken, I don't know. 9 But, certainly my best recollection is as 10 the flow of my notes, that Tim says, Do we have a list of 11 names and -- and, The Chief, is he willing to assist. 12 And then the next note I've got is Deb Hutton saying, 13 Premier's office doesn't want to be seen to be working 14 with Indians at all. 15 Q: Okay. 16 A: So, what -- you know, I can't -- I 17 can't really help you with the specifics of the details 18 of the discussion more than -- more than that really. 19 Q: Okay. Is it fair to say, Dr. 20 Christie, that, contrary to what you described, the 21 initial part of that meeting, discussion about Chief 22 Bressette and possible evidence, that once Deb Hutton 23 made that comment, that was not discussed again in that 24 meeting? 25 A: I don't think it was discussed
2911 again -- 2 Q: Okay. 3 A: -- in the meeting. No, I don't 4 think. 5 Q: So in that sense, in your view, Deb 6 Hutton's comment had an impact on the flow of that 7 meeting and what was being discussed? 8 A: Yes. 9 Q: Okay. No -- did anyone -- did either 10 yourself or anyone else in the meeting question her 11 comment that, We don't want to be seen to be working with 12 Indians? 13 A: I don't recall specifically -- 14 Q: Okay. 15 A: -- whether anybody did. And I can 16 tell you that probably the -- whether they did or not, 17 I'm not sure. 18 Q: Okay. 19 A: But, I do recall having a, sort of, 20 direct interchange with Tim McCabe following that, to the 21 effect, I think as I said before, That's too bad because 22 that -- 23 Q: Okay. 24 A: -- would have been good if we had 25 been able to -- and that was -- so whether I missed
2921 something else, I don't know. 2 Q: Okay. 3 A: Yeah. 4 Q: To your recollection, you don't 5 recall hearing anyone challenge it? 6 A: No. 7 Q: You don't recall a critical debate 8 over what -- 9 A: No. 10 Q: -- she had said? Okay. 11 And -- and further down on that same page, 12 and I -- I don't want to spend much on this, this has 13 been covered several times with out -- you attribute to 14 Deb Hutton the comment, "Premier's office" -- well, I -- 15 I had already read that to you: 16 "The Premier's office doesn't want to 17 be seen to be working with Indians at 18 all." 19 Now, when Ms. Perschy was questioning you 20 on behalf of Deb Hutton, I -- I got the sense that she 21 was suggesting to you that perhaps that wasn't a direct 22 quote, that you were paraphrasing. But -- but I want to 23 be clear on that. 24 That's a direct quote attributed to Deb 25 Hutton?
2931 A: As I said this morning -- 2 Q: Yes. 3 A: -- my recollection is that that's a 4 direct quote. 5 Q: Thank you. Now, at the time that you 6 -- you were preparing the -- I want to deal with the -- 7 the issue of the injunction for a moment. 8 At the time that you were preparing the 9 materials for the injunction, I take it from your 10 evidence that you spent a lot of time? It was, as 11 someone previously described, frantic work. 12 You were frantically getting that together 13 and it -- it took some time? 14 A: Well, we didn't get to spend that 15 much time because we only had eight (8) hours or 16 something. 17 Q: Better put, you did a lot of work in 18 a short period of time? 19 A: Sure. 20 Q: Okay. And I take it at the time you 21 were -- I don't want to get into yours and Mr. McCabe's 22 view of the appropriateness of an ex parte injunction. 23 That's already been done and I don't want to go there 24 again. I think that's fairly clear. 25 But, at the time that you were preparing
2941 the materials and getting reading for the hearing which 2 ultimately took place on the morning of the 7th, I take 3 it, it was -- you were obviously of the view, you 4 obviously knew that after and if an ex parte order had 5 been granted, you would have to return to court in short 6 order and on notice to argue it again? 7 A: Yes. 8 Q: You knew that. Okay. And to get an 9 interim injunction which be in -- which would be in 10 effect until trial, you knew that perhaps more detailed 11 affidavit evidence than you had previously filed with Mr. 12 Kobayashi would be required; that was a possibility? 13 A: It certainly was a possibility, yes. 14 Q: Sure. Okay. And you knew that there 15 was a possibility that you may have to file affidavits 16 and provide evidence on behalf of others? 17 I guess we're -- we're speaking 18 hypothetically now, but on the part of bureaucrats, other 19 government officials, MNR officials, other MNR officials 20 other than Mr. Kobayashi; you were aware that that was a 21 possibility were the matter to proceed? 22 A: We -- sorry -- who would have put 23 together what we needed to put together. 24 Q: Okay. 25 A: Yeah. In fact over the weekend, we
2951 worked on that -- 2 Q: Right. 3 A: -- until we were told to withdraw. 4 Q: And I take it, and I'm not going to 5 spend much time on this, I don't want to recover areas 6 Mr. Rosenthal covered, but I take it you -- you were 7 obviously, again I'm stating the obvious here, that those 8 people you filed Affidavits on and those people who were 9 called initially at the ex parte portion of the hearing 10 would ultimately be subject to cross-examination on their 11 evidence? 12 You were -- I'm stating the obvious, but 13 that's what ultimately would have happened? 14 A: Any -- any witnesses or Affidavits we 15 put forward would certainly be subject to cross- 16 examination, yes. 17 Q: Okay. And that never did happen? 18 A: That's correct. 19 Q: Okay. Mr. Kobayashi, Sergeant 20 Wright, Inspector Carson, they were never cross-examined 21 on their evidence? 22 A: That's correct. 23 Q: Now, there's one final area I want to 24 discuss with you, Dr. Christie. You had -- you had 25 indicated when Mr. Worme asked you about whether or not
2961 you had any recommendations, you indicated, and you can 2 correct me if I'm wrong, that you thought the Blockade 3 Committee, the IMC, as it was, prior to September 7th, 4 was a useful body. 5 A: Yes. 6 Q: You recall saying that. Okay. And - 7 - and I just want to make sure I understand your 8 testimony clearly on that topic. 9 Did you say that -- was there a change in 10 the make up and function of that body, as of September 11 the 7th? 12 A: As of -- I -- 13 Q: After the death of Dudley George. 14 Was the make-up and -- 15 A: Yes. 16 Q: -- functioning of that body 17 different? 18 A: Yes, I believe it was actually -- 19 Q: Okay. 20 A: -- disbanded. 21 Q: Okay. And there was a different 22 group that was sort of convened, isn't that -- isn't that 23 what happened? 24 A: That's my understanding, yes. 25 Q: Okay. And were you involved with
2971 that group? Did you meet with that group? 2 A: Not sort of -- not in the immediate-- 3 Q: Okay. 4 A: -- term, no. 5 Q: But, I take it you had an 6 understanding as to what that new group was supposed to 7 do? 8 A: Well, I'm not sure which group you're 9 speaking about. 10 Q: Okay. 11 A: Sorry. 12 Q: The new group, the newly-constituted 13 group after Dudley George's death. 14 A: Well, there -- so, my recollection is 15 that there was -- there was sort of a -- a group that -- 16 that met to deal specifically with the Ipperwash issue. 17 Q: Yes. 18 A: And the -- and the sort of fallout, 19 if you will, and what was going to happen next and all 20 that sort of stuff. 21 But then there was -- then the -- but the 22 Interministerial Committee was, if my recollection serves 23 me correctly, was -- was disbanded and -- and future 24 Aboriginal issues were dealt with differently and there 25 wasn't really -- my recollection is, there wasn't really
2981 any formal group that then dealt with subsequent 2 Aboriginal emergency issues like this. It was more of an 3 ad hoc kind of thing. 4 Q: And did you have any involvement with 5 that ad hoc group? 6 A: I was certainly involved in 7 subsequent Aboriginal issues, yes. 8 Q: Okay. And did you find that process 9 to be as -- I guess what I'm driving at is I want to 10 contrast the sort of new approach after Dudley George's 11 death with the prior approach, which you described as 12 useful, the sort of existence of that Interministerial 13 Committee. 14 Was it as helpful, was it as useful? 15 A: I did -- I did -- I don't think so, 16 no. In my view the Interministerial Committee in general 17 terms, was a -- was a useful body. 18 Q: Okay. Yeah. 19 20 (BRIEF PAUSE) 21 22 Q: Those are my questions, Commissioner. 23 Obviously from the Chiefs of Ontario's perspective, 24 subject to the hearing which I understand they'll arrange 25 with Mr. Millar, but those are the questions that I have
2991 for Dr. Christie today. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 Yes, Mr. Roy? 4 5 (BRIEF PAUSE) 6 7 COMMISSIONER SIDNEY LINDEN: Good 8 afternoon, Mr. Roy. Can you give me some indication or 9 estimate of what you might be expecting, what we might be 10 expecting? 11 MR. JULIAN ROY: Totally out of 12 character, Mr. Commissioner, I think I'll be brief. So, 13 out of character. 14 COMMISSIONER SIDNEY LINDEN: Not really, 15 not really. 16 MR. JULIAN ROY: everything has been very 17 thoroughly canvassed by other Counsel. 18 COMMISSIONER SIDNEY LINDEN: It has been, 19 that's why I'm wondering what there is left for you to 20 do, but I won't go there. 21 MR. JULIAN ROY: Lawyers have good 22 imaginations. 23 COMMISSIONER SIDNEY LINDEN: That's fine. 24 MR. JULIAN ROY: Can always -- can always 25 think of a few more questions.
3001 2 CROSS-EXAMINATION BY MR. JULIAN ROY: 3 Q: Good afternoon, Dr. Christie. 4 A: Good afternoon. 5 Q: My name is Julian Roy and I'm one of 6 the Counsel for Aboriginal Legal Services Toronto, and as 7 I promised the Commissioner just a minute ago, I'm going 8 to be very brief. 9 I just have one or two (2) very quick 10 areas that I want to ask you a little bit of 11 clarification about, okay? 12 The first area is the -- the timing of 13 your hallway meeting with Mr. Taman and -- and -- and 14 that's something I want to try and focus you on to see if 15 we can get your best evidence as to when that might have 16 happened more precisely, okay? 17 As I understand your evidence -- as I 18 understand your evidence the -- it happens on September 19 6th sometime after the IMC meeting. 20 Is that correct? 21 A: That's my best recollection, yes. 22 Q: Yes. And the -- the minutes to the 23 IMC meeting reflect that it ends around 11:45 and that 24 accords with your recollection, correct? 25 A: Yes.
3011 Q: And you're attending there with Mr. 2 McCabe. 3 Is that correct? 4 A: Yes. 5 Q: And you're there at the Atrium on the 6 Bay -- Atrium on Bay which is not your regular office. 7 Is that right? 8 A: Yes. 9 Q: Okay. So what happens I assume after 10 the IMC meeting you leave in the company of Mr. McCabe 11 and I think your evidence, Mr. Fox. 12 Is that correct? 13 A: Yes. 14 Q: And did you linger for a few minutes 15 after the meeting, before leaving? 16 A: Possibly. 17 Q: Okay. So it may be that you waited 18 ten (10) or fifteen (15) minutes or so after that 11:45 19 time, correct? 20 A: Yes, but we weren't -- we wouldn't 21 have been lingering on that day. 22 Q: Okay. You would have been -- you 23 would have been talking about -- 24 A: Yes. 25 Q: -- issues that arose from the
3021 beginning? 2 A: Yes, and I don't think we stuck 3 around very long. 4 Q: Okay. In -- in any event then you 5 would have taken a few minutes to walk up north on Bay 6 Street towards 720 Bay. 7 Is that correct? 8 A: Yes. 9 Q: And it's around lunch time, do you 10 think you might have stopped for lunch for a few minutes? 11 A: I doubt it very much. 12 Q: Okay. You wouldn't have stopped to 13 pick up something to maybe have at your desk? 14 A: It's conceivable, there's a Subway 15 across the street, but I don't even think we did that. 16 Q: Okay. In any event you and -- and 17 Mr. McCabe's office is on the eighth floor at 720 Bay? 18 A: Yes. 19 Q: And presumably you would have headed 20 -- both of you would have headed to the eighth floor to 21 your offices. 22 Is that correct? 23 A: Yes. 24 Q: And as I understand your evidence the 25 meeting with Mr. Taman happens on the eleventh floor.
3031 Is that right? 2 A: That's my best recollection, yes. 3 Q: Okay. So presumably you -- you might 4 have remained on the eighth floor and in around your 5 office talking with Mr. McCabe before heading up to the 6 eleventh floor, correct? 7 A: Yes. 8 Q: Okay. Now, the meeting that you have 9 with Mr. Taman on the eleventh floor, the information 10 that he conveyed to you and I don't want to go over it 11 again, other Counsel have canvassed it, but in any event 12 the information that he conveyed to you was important 13 information, was it not? 14 A: Indeed. 15 Q: It was matters that really had to get 16 to Mr. McCabe's attention very quickly. 17 Is that correct? 18 A: Yes. 19 Q: So I take it you wouldn't have 20 delayed in -- in conveying what Mr. Taman had said to 21 you, to Mr. McCabe, correct? 22 A: That's right. 23 Q: You would have headed right back down 24 to the eighth floor and told Mr. McCabe about it, 25 correct?
3041 A: Yes. Unless as I mentioned earlier 2 if I'd known that Mr. McCabe was, for example, at a -- at 3 a brief meeting somewhere or had been detained or had -- 4 Q: Sure. 5 A: -- gone across the street to get a 6 sandwich then I probably would have gotten -- 7 Q: Sure. 8 A: -- straight on the telephone to the 9 coordinator, so. 10 Q: Yeah. But -- but your impression was 11 that -- you told us that you were -- there was some -- 12 even after the meeting of -- right after the meeting -- 13 the Interministerial Committee Meeting -- there was some 14 urgency in terms of preparing the injunction materials, 15 correct? 16 A: Yes. 17 Q: And your impression was that Mr. 18 McCabe had disappeared for some lengthy period of time, 19 correct? 20 A: Sorry? 21 Q: Mr. -- your impression was that Mr. 22 McCabe hadn't disappeared from his office for a lengthy 23 lunch or anything like that, had he? 24 A: No, that's not my impression. 25 Q: No.
3051 A: No. 2 Q: So you would have got a hold of Mr. 3 McCabe and briefed him on -- on your discussion with Mr. 4 Taman fairly quickly after you had the discussion with 5 Mr. Taman, correct? 6 A: Yes. That briefing would have 7 consisted of probably about eight (8) words. 8 Q: Yeah. Sure. But my point is, is it 9 would have happened very quickly after -- 10 A: Yes. 11 Q: -- you had the discussion -- 12 A: Yes. 13 Q: -- with Mr. Taman? 14 Now, one (1) of the outcomes of -- of the 15 direction that you get from Mr. Taman is that you now 16 need evidence from a police officer with a view to 17 advancing that injunction proceeding. 18 Is that not correct? 19 A: Well, it sort of depended a bit, 20 right, on -- on -- on what the trial coordinators told 21 us. 22 Q: Sure. 23 A: So -- so had we ended up with the 24 advice from the trial coordinators that, no, indeed, 25 you're not going to be heard until Friday or Monday, even
3061 in Sarnia -- 2 Q: Sure. 3 A: -- then -- then we may not have 4 needed viva voce testimony from the police because we may 5 have had time and we may have -- it may have been 6 appropriate at that point to -- to -- to provide entirely 7 affidavit evidence. 8 So the -- the issue of requiring police 9 evidence didn't come out of the instructions from Mr. 10 Taman, they came out of the necessity of how we ended up 11 proceeding. 12 Q: All right. But what I'm asking you 13 is from the time that you briefed Mr. Taman or by the 14 time you briefed Mr. McCabe about the -- the -- Mr. 15 Taman's words to you, how long after that did -- let me 16 ask it this way. 17 Was -- did the issue of contacting the 18 police with a view to obtaining their evidence, did that 19 happen very quickly after you briefed Mr. McCabe? 20 A: Well, Mr. Fox was responsible for 21 contacting the police on our behalf, right? 22 Q: Okay. 23 A: So -- 24 Q: And how does Mr. Fox know about that? 25 A: Because -- well, I -- I think -- hmm
3071 -- Mr. McCabe must have asked him. And whether he asked 2 him in our street walk or whether he phoned him after 3 that point or not, I'm not sure. 4 Q: You just don't know? 5 A: No. 6 Q: Okay. 7 8 (BRIEF PAUSE) 9 10 Q: I think -- I think those are the 11 questions that I have, Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Thank you 13 very much, Mr. Roy. 14 Ms. Twohig, do you have some questions? 15 MS. KIM TWOHIG: Yes. Thank you. 16 MR. JULIAN ROY: I should -- I should add 17 that -- that there is an outstanding issue that may arise 18 from this Witness's examination that My Friends have 19 already referred to. 20 And, of course, I can't rule out -- I 21 don't have a present intention at this point but I can't 22 rule out, depending on what the outcome of that ruling 23 is, that -- that I may have some further questions on -- 24 on that issue, but. 25 COMMISSIONER SIDNEY LINDEN: Thank you,
3081 Mr. Roy. 2 MR. JULIAN ROY: I'm just -- out of an 3 abundance of caution I raise that, I think it's implicit, 4 but. 5 COMMISSIONER SIDNEY LINDEN: Thank you, 6 Mr. Roy. 7 Ms. Twohig...? 8 Do you expect you'll be long? 9 MS. KIM TWOHIG: No, I don't. Ten (10) 10 minutes. 11 12 CROSS-EXAMINATION BY MS. KIM TWOHIG: 13 Q: Dr. Christie, you mentioned a 14 conversation you had with Larry Taman in which he told 15 you to inquire about getting an injunction heard the same 16 day in Toronto, and that was on September 6th. 17 Is that right? 18 A: That's my best recollection, yes. 19 Q: Do you recall having any earlier 20 discussions with Mr. Taman about the Ipperwash situation, 21 either that day or previously? 22 A: I -- I actually don't. I understand 23 that I might well have been at a meeting on the 6th, 24 before the Interministerial Committee meeting, but I 25 actually don't have any personal recollection of being at
3091 that meeting, which makes me think that I probably 2 wasn't, because I probably would have remembered, but I - 3 - I don't really -- I don't recall. 4 Q: All right. 5 A: And whether I actually spoke to him 6 by phone or in person, sort of in moments either 7 immediately after the Interministerial Committee meeting, 8 but before that hallway conversation, I may have but I'm 9 not sure. 10 I did speak to him on modestly regular 11 basis, so it wasn't, like, sort of an absolutely unusual 12 thing for me to talk to Larry Taman. 13 Q: Okay. I'm wondering if you recall, 14 on this issue, whether there was ever a change in his 15 attitude towards the injunction or his suggestive 16 approach? 17 A: Well, my understanding -- well, 18 certainly, when I -- in my hallway discussion with Mr. 19 Taman, I recall him seeming to be -- he struck me as 20 quite anxious and -- and -- not to use a word I've 21 already used about somebody else, but a bit agitated 22 about the whole thing. 23 Q: Hmm hmm. 24 A: And my impression was that -- that 25 that was because he, like Tim McCabe and I, was of the
3101 view that an ex parte motion or a super rapid motion and 2 rushing this thing very, very quickly was maybe not the 3 best course of action, but that we were Counsel to the 4 Crown and -- and we had to follow our instructions. 5 Q: Now, you mentioned, the evening 6 before you appeared before Justice Daudlin, you had faxed 7 a motion materials down to him? 8 A: Yes. 9 Q: And you also testified that you had 10 had Mr. Kobayashi swear his affidavit before you on the 11 morning of the 6th? 12 A: Yes. 13 Q: So I take it you would have faxed to 14 the court an unsworn version of the affidavit. 15 Is that correct? 16 A: Yes. 17 Q: So on the 6th then you would have 18 substituted the sworn version. 19 Is that fair? 20 A: Yes. 21 Q: Do you recall whether or not Mr. 22 McCabe or you may have handed to the court a different 23 motion record than the one that had been faxed down 24 previously? 25 A: I -- I have a vague recollection that
3111 I did that. And I can tell you that I would have done 2 that. And part of the reason I know I would have done 3 that is that if you look at the file that's in the 4 documents here that you got from the court, the court 5 file number, the actual number, the handwritten number 6 there, that's my handwriting. 7 Q: I see. 8 A: And the page numbers that are in the 9 index are -- that's my handwriting. And so I had the 10 full document from beginning to end all numbered. And 11 the -- and the pages are consecutive, including the sworn 12 affidavit, consecutively handwritten page numbers, all of 13 which are my handwriting. 14 Q: I see. 15 A: So I -- I'm pretty sure -- and I -- 16 I'm undoubtedly the one that would have actually been 17 handing that to the Court Registrar. 18 Q: Right. 19 A: Yeah. 20 Q: Do you have any information as to 21 whether or not Justice Daudlin actually received the 22 faxed version that you had sent down to the Court 23 Registrar the previous evening? 24 A: I can't -- I can't -- I didn't 25 deliver it, but I know that I faxed it to the Registrar.
3121 I spoke to the Registrar following the fax to ensure that 2 the Registrar had actually obtain -- received it and -- 3 and recall receiving verbal, sort of, confirmation that 4 the Registrar was off now to deliver this to Justice 5 Daudlin. 6 Q: All right. Did you have any 7 subsequent conversation as to whether or not he was, in 8 fact, able to deliver it? 9 A: No subsequent conversation, although 10 the -- the Judge in the proceedings indicates that he has 11 had a chance to review it, so I sort of presumed that he 12 did receive it. 13 Q: Okay. You said that you and Mr. 14 McCabe and Sergeant Wright were concerned about the 15 aspect of the order that addressed service. 16 And in -- 17 A: Yes. 18 Q: -- particular, the dropping of 19 documents from a helicopter. And you also mentioned that 20 you had asked him about a variation of the order in 21 Chambers and I was wondering if you could just provide us 22 with some detail on that. 23 How did that come about and what 24 discussion was held? 25 A: Sure. So the -- the Motion proceeded
3131 as is transcribed. When it came to an end, Justice 2 Daudlin gave us -- he adjourned, he came -- he -- I 3 believe he came back after lunch with his written 4 endorsement; gave us his written endorsement and then as 5 is the usual course, said to us, Make -- I assume you'll 6 want this order today registered with the Court, so you 7 formulate an order based on my -- on my recommendation. 8 I'll be around for a few hours. 9 So we set to transcribing his -- his 10 handwritten endorsement into an order and, of course, at 11 the same time, the discussions were going on, 12 particularly with Detective Sergeant Wright, who was the 13 OPP officer there, and he was expressing grave concern 14 over the safety implications of having an order the way 15 it was expressed. 16 And -- and we were also, of course, 17 uncomfortable with the fact that the order had been 18 stayed and -- and there was one other aspect of it that I 19 just -- wasn't as important as those, I think, that I -- 20 that I recall being concerned about. 21 But in any event, we -- my recollection is 22 that because we had the use of the Crown's office, that I 23 drafted and I already had with me a computer disc and the 24 drafted order as it was, and -- and amended that to 25 reflect Justice Daudlin's endorsement.
3141 And then we created a second version that 2 was the version that we would have preferred and when we 3 went into Chambers with Justice Daudlin, we requested to 4 actually see him rather than simply handing him a copy of 5 the -- or handing the clerk a copy of the order to be -- 6 to be then signed by the Judge. 7 We requested a meeting with him in 8 Chambers, which we were granted and at that meeting in 9 Chambers, Mr. McCabe made -- made submissions to him 10 requesting a variation of the order, in particular to 11 remove the mandatory order that required dropping the -- 12 dropping the documents by aircraft. 13 And that was a very lengthy discussion, 14 but it ended with Justice Daudlin sticking to his -- to 15 his original order. 16 Q: Okay. Now, you were asked if -- 17 about the Judge's understanding of whether the Motion was 18 to be ex parte or not, and I'm just wondering if you 19 could turn to Tab 20 -- 20 A: Yes. 21 Q: -- in the Commission's book of 22 documents, which is the transcript of the Court 23 proceedings. And if you turn to page 1 of the 24 transcript, near the bottom of the page to which you were 25 referred by My Friend Mr. Rosenthal, it says that His
3151 Honour said: 2 "One of the reasons why I understand 3 great efforts have been made with 4 respect to security today, is that, in 5 fact, this was to be a Motion on 6 Notice." 7 I'm wondering if you asked for additional 8 security that day? 9 A: No, we didn't. 10 Q: No. Are you aware of whether anyone 11 else had requested additional security in Court on 12 September 7th? 13 A: When -- when we arrived, Detective 14 Sergeant Wright advised us that he had requested 15 additional security and he himself was very -- very 16 concerned for our security and, in fact, went into great 17 details about how Mr. McCabe and I should protect 18 ourselves, should something go awry in the courtroom that 19 day. 20 He, in fact, was wearing -- advised me 21 that he was wearing a flak jacket and, in fact, carrying 22 his gun, which was very unusual, he said, when he went to 23 court and so it was my understanding that he was the one 24 that asked for the additional security. 25 Q: All right. Now, when Mr. Downard
3161 was asking you some questions he asked whether there was 2 any disagreement among the lawyers about the approach 3 that should be taken at the Interministerial Committee 4 Meetings of September 5th and 6th. And I believe your 5 testimony was that there was no disagreement among Tim 6 McCabe, Andrew McDonald, Leith Hunter or you. 7 And I just wanted you to turn to Tab 11 to 8 have a look at the list of people in attendance at those 9 meetings, and let me know if you recall whether there was 10 any disagreement among any of the other lawyers. 11 Perhaps we could start, and for the 12 benefit of My Friends, this is Exhibit P-509 Inquiry 13 Document 1012288. 14 On the second page, at Tab 11, is the list 15 of the attendees and perhaps I could just list the names 16 of the Government lawyers who were in attendance and you 17 can let me know whether there was any disagreement as to 18 the go slow approach that I understand was being 19 advocated. 20 Julie -- Julie Jai, any disagreement? 21 A: I don't believe so. 22 Q: Okay. Dave Carson? 23 A: No, I don't believe so. 24 Q: Natalie Nepton? 25 A: I don't believe so.
3171 Q: Leith Hunter you mentioned. Eileen 2 Hipfner? 3 A: No. 4 Q: Andrew McDonald? 5 A: No. 6 Q: Apparently not, from your testimony. 7 Is that a, "yes?" 8 A: That's a -- 9 Q: There's -- there was no disagreement? 10 A: That's -- no disagreement, yes. 11 Q: And Barry Jones? 12 A: I believe he -- he did not -- I 13 believe he agreed. 14 Q: Okay. 15 A: Did not disagree. 16 Q: And at the same tab could you just 17 turn a little farther along to the meeting notes of 18 September 6th. And it appears that there were more 19 lawyers in attendance that day -- 20 A: Meeting notes. 21 Q: -- and I'm wondering if there was any 22 disagreement among the lawyers in attendance on September 23 6th. And -- 24 A: I just have to preface my comments 25 the same. Not all of these lawyers spoke up --
3181 Q: Yeah. 2 A: -- very much so I -- I don't know, 3 personally, for sure, with some of them, whether or not 4 they did, but as far as I know I don't think they did. 5 Q: Yes. 6 A: Yeah. 7 Q: Okay. So we have as lawyers at the 8 meeting, Julie Day -- Jai -- 9 A: No. 10 Q: Dave Carson, Eileen Hipfner, Natalie 11 Nepton, Elizabeth Christie, Andrew McDonald, Tim McCabe, 12 Scott Hutchison. 13 A: He would not -- he did not disagree. 14 Q: No. Leith Hunter and Barry Jones. 15 Do you recall whether there was any 16 disagreement among those lawyers as to the approach that 17 should be taken? 18 A: I don't recall there being any 19 disagreement amongst those people, no. 20 Q: All right. You said that you had no 21 information regarding how widely the view was held among 22 the First Nation community about the burial ground, the 23 existence of a burial ground in the Park. 24 I'm wondering if you were aware of a view 25 being expressed by Chief Bressette on behalf of the
3191 Kettle and Stony Point First Nation, regarding the 2 existence of a burial site? 3 A: My -- my recollection, and -- and I 4 don't know the -- the source of this, but my recollection 5 is that -- that sort of being part of Chief Bressette's 6 indication that he didn't support this was that he didn't 7 -- he was actually of the view that there was no burial 8 site in the Park. 9 Q: Okay. Ms. Perschy asked whether 10 someone had requested that burial ground obligations be 11 researched at the Interministerial Committee Meeting and 12 you said that that was done -- 13 A: Yes. 14 Q: -- but I don't know if you responded 15 directly to whether or not the request was made by Ms. 16 Hutton or by someone else? 17 A: I don't recall specifically who made 18 it, I -- I sort of recall at the summation of the meeting 19 probably Julie Jai summing up and saying, So Dave Carson, 20 you will go and look at -- at this issue? And I don't 21 recall who initially -- 22 Q: Yeah. 23 A: -- specifically asked for it. 24 Q: Okay. Now you were referred, you'll 25 recall, to paragraph 3 of the Notice of Motion and to the
3201 paragraph regarding the ability of the Minister or Deputy 2 Minister to -- to direct staff to remove certain items. 3 I'm wondering if you can tell us whether 4 you contemplated at the time that that order would be 5 directed to the OPP or just to government staff other 6 than the OPP? 7 A: I honestly don't recall. 8 Q: Okay. And finally, you said that the 9 ex parte injunction was brought in order to comply with 10 the instructions that you had received to bring the 11 injunction application as soon as possible, with an 12 indication that it should be that day or the following 13 day if at all possible; is that right? 14 A: Yes. 15 Q: And at the same time you wanted to 16 provide notice in order to be fair -- as fair as possible 17 to the occupiers? 18 A: Yes. 19 Q: And to give them an opportunity to 20 respond; is that right? 21 A: Yes. 22 Q: Thank you. Those are my questions. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. 25 Do you have any re-examination, Mr. Worme?
3211 2 RE-DIRECT EXAMINATION BY MR. DONALD WORME: 3 Q: I only have one (1) matter, Mr. 4 Commissioner. I have a document here which I would ask a 5 copy be put to the Witness, and there's one (1) for you 6 as well and one (1) for the Registrar. 7 It's Inquiry Document 1005990, it consists 8 of a total of four (4) pages. The cover page, bearing 9 front number 0068357, is a letter under the letterhead of 10 the Minister of Attorney General, it's dated September 11 the 6th of '95. 12 You're with me on this, Dr. Christie? 13 A: Yes. 14 Q: It is addressed to The Registrar, 15 Ontario Court General Division, Courthouse, 245 Windsor 16 Avenue, Windsor, Ontario, attention G. Chittle. And if I 17 may, I'm -- I'm simply going to continue to read this 18 into the record, sir: 19 "Re. Attorney General of Canada and 20 the Minister of Natural Resources v. 21 George et al. Attached are a copy of 22 the notice of motion and an un-executed 23 copy of the draft affidavit of Leslie 24 Kazuo Kobayashi to be relied on in 25 support of the motion to be heard at
3221 9:00 a.m. tomorrow at Sarnia. The 2 affidavit, as executed, will have 3 exhibits attached to it. As discussed, 4 we'd be obliged if you could provide 5 this material to His Honour Justice 6 Daudlin this evening. Thank you for 7 your help. Yours sincerely." 8 And it's signed: 9 "J.T.S. McCabe, Counsel." 10 A: Yes. 11 Q: Have you -- 12 A: Except that it's Attorney Gen -- 13 Q: -- have you seen that before? 14 A: Yes. Not recently, but. 15 Q: Thank you. And the second page, 16 Inquiry Document -- same Inquiry Document Number with the 17 front number ending in 358, it is a cover page of a 18 telefax. 19 Do you recognize that, first of all, Dr. 20 Christie? 21 A: Yes. It's my handwriting. 22 Q: All right. And you'll agree with me, 23 it's marked: 24 "Urgent. Confidential." 25 It's dated September the 6th of 1995, and
3231 dated -- pardon me, the time indicated is 8:12 p.m.? 2 A: Yes. 3 Q: And that is the fax cover page for -- 4 which accompanied, I take it, this letter together with 5 the attachments? 6 A: Yes. 7 Q: All right. It indicates that there 8 are nine (9), I guess plus ten (10), it would like, pages 9 that were forwarded. 10 Is that -- 11 A: Yes. So the fax machine stopped 12 halfway through, so I had to redo it and -- 13 Q: I see. And accompanying that, the 14 third page on that document, front number ending 359, 15 again it's a fax cover sheet. 16 You're familiar with that? 17 A: Yes. 18 Q: And that is your writing, is it? 19 A: Yes. 20 Q: Again, same date, and this is 21 addressed to the attention of Inspector Linton, the time 22 indicated is 7:47 in the p.m.? 23 A: Yes. 24 Q: And that is from you? 25 A: Yes.
3241 Q: All right. 2 The last two (2) pages are transaction 3 reports which would indicate that these documents had 4 gone through to the intended recipients? 5 A: Yes. At least -- 6 Q: And I -- I would ask that these be 7 marked at the next exhibit, Mr. Commissioner. I think it 8 simply provides us with some indication -- I think we've 9 been going around the time -- and I want to, first of 10 all, thank Mr. Millar for ferreting these out of the 11 document base. 12 I'm -- so I'm grateful for that. I think 13 it helps us, in the sense, of putting some timing on some 14 of the issues that there had been questions arising on. 15 And I -- I realize that this is not 16 entirely by way of re-examination, so if any parties have 17 questions about that, then... 18 COMMISSIONER SIDNEY LINDEN: They should 19 have a right. But the one (1) document, the one (1) 20 addressed to Inspector Linton, is already -- 21 MR. DONALD WORME: That has already been 22 made an exhibit -- 23 COMMISSIONER SIDNEY LINDEN: -- been 24 entered as an exhibit. 25 MR. DONALD WORME: -- through Ms. -- Ms.
3251 Tuck-Jackson, that's correct. 2 COMMISSIONER SIDNEY LINDEN: Exhibit 746. 3 4 (BRIEF PAUSE) 5 6 MR. DONALD WORME: So, unless there are 7 any other -- unless there's any questions arising from 8 the parties, which I think they would have a right to 9 question on, should they so chose, that is the only 10 matters that I have left with Dr. Christie. 11 COMMISSIONER SIDNEY LINDEN: We need an 12 exhibit number. 13 THE REGISTRAR: Exhibit number? 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 THE REGISTRAR: P-747, Your Honour. 16 COMMISSIONER SIDNEY LINDEN: P-747. 17 18 --- EXHIBIT NO. P-747: Document Number 1005990. 19 Letter to the registrar, 20 Ontario court, Windsor, Att. 21 G. Chittle from J.T.S. 22 McCabe, Sept.06/'95; two (2) 23 fax cover sheets Sept.06/'95 24 and two (2) transaction 25 reports Sept. 06/'95.
3261 2 COMMISSIONER SIDNEY LINDEN: Does anybody 3 have any questions arising out of this particular 4 exhibit? 5 MR. DONALD WORME: And as I see none, 6 then I would simply wish to, on behalf of the Commission, 7 thank Dr. Christie for her attendance here and for her 8 testimony. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much, Dr. Christie -- 11 THE WITNESS: You're welcome. 12 COMMISSIONER SIDNEY LINDEN: -- for 13 coming and giving us your evidence. Thank you. 14 THE WITNESS: Thank you. 15 16 (WITNESS STANDS DOWN) 17 18 COMMISSIONER SIDNEY LINDEN: It's now a 19 quarter to 5:00. We'll adjourn until tomorrow morning at 20 nine o'clock. 21 THE REGISTRAR: This Public Inquiry is 22 adjourned until tomorrow, Wednesday September 28th, at 23 9:00 a.m. 24 25 --- Upon adjourning at 4:45 p.m.
3271 2 3 Certified Correct 4 5 6 7 8 ________________________ 9 Dustin Warnock 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25