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 28th, 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 ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (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 ) 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 ) (np) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) (np) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) (np) Chiefs of Ontario 13 Matthew Horner ) (np) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 TIMOTHY ST. CLAIR MCCABE, Sworn 6 Examination-in-Chief by Mr. Donald Worme 9 7 Cross-Examination by Mr. Peter Downard 214 8 Cross-Examination by Ms. Jacqueline Horvat 225 9 Cross-Examination by Ms. Anna Perschy 229 10 Cross-Examination by Ms. Andrea Tuck-Jackson 243 11 Cross-Examination by Mr. Janet Clermont 275 12 Cross-Examination by Mr. Murray Klippenstein 278 13 14 15 Certificate of Transcript 290 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-748 Document Number 3000425 motion record 4 from Tim McCabe, September 02/'91 27 5 P-749 Document Number 1006009. Letter 6 from Marion Boyd to Chief Maynard 7 George Re. His letter of July 15/'93, 8 September '93. 45 9 P-750 Document Number 2000601. OPP Logger 10 tapes - Conversation between McCabe 11 and Linton, Sept.06/'95. 128 12 P-751 Message from detective staff Sgt. 13 Mark Write to Tim McCabe Re. Wright 14 (02:13). 178 15 P-752 Tim McCabe conversations CD. Sept06/95, 16 14:36-Carson/McCabe 15:59-Carson/McCabe, 17 16:06-Carson/McCabe, 19:34-Linton/McCabe- 18 20:18-Write/McCabe,21:11-Linton/McCabe 180 19 P-753 Document Number 1003482. Urgent fax 20 from Tim McCabe to Eileen Hipfner Re. 21 Endorsement of Justice Daudlin on 22 instructions motion Sept. 07/'95. 188 23 24 25
71 LIST OF EXHIBITS (cont'd) 2 Exhibit No. Description Page No. 3 P-754 Document Number 1006006. Memo to Tim 4 McCabe from Leah Price attaching three 5 versions of a notice of motion, 6 Sept.07/'95. 195 7 P-755 CD of Mark Wright's message for Tim 8 McCabe 2:12 a.m. September 07/'95. 208 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 9:03 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session. The Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. DONALD WORME: All right. Good 9 morning, Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning. 12 MR. DONALD WORME: Good morning. The 13 Commission calls as its next witness, Tim McCabe. 14 THE REGISTRAR: Good morning, Mr. McCabe. 15 MR. TIM MCCABE: Good morning. 16 THE REGISTRAR: Do you prefer to swear on 17 the Bible, affirm or use an alternative oath. 18 MR. TIM MCCABE: I'll swear. 19 THE REGISTRAR: Take the Bible in your 20 hand please, sir. And state your name in full for us. 21 MR. TIM MCCABE: John Timothy St. Clair 22 McCabe. 23 24 JOHN TIMOTHY ST. CLAIR MCCABE, Sworn; 25
91 EXAMINATION-IN-CHIEF BY MR. DONALD WORME: 2 Q: All right. Good morning, Mr. McCabe. 3 Thank you for -- thank you for being here. Perhaps we 4 can start by just going into some of your professional 5 background if we could please. 6 I understand that you graduated in 1973 7 from law school. 8 A: Yes, that's true. 9 Q: And what law school is that? 10 A: University of Toronto. 11 Q: Okay. I think I heard somebody say 12 that -- you say that as though there's no other law 13 schools. 14 A: They're just a -- they're just a 15 vague rumour from the heights of U of T, yes. 16 Q: All right. Thank you. 17 COMMISSIONER SIDNEY LINDEN: As a former 18 graduate, I agree. 19 20 CONTINUED BY MR. DONALD WORME: 21 Q: I thought you may have some fans in 22 that, Mr. McCabe. 23 You were called to the Bar of -- and Law 24 Society of Upper Canada in what year, sir? 25 A: Well, actually I think that was 1973
101 as I recall. 2 Q: All right. And you graduated I take 3 it at some point previous to that and articled. 4 A: Yes. 5 Q: Did you article at -- with the 6 Ministry of Attorney General? 7 A: No. I articled at Tory Tory 8 DesLaurier in Binnington. 9 Q: And then joined the Crown Law Office 10 Civil. 11 A: Yes. 12 Q: And you remained at that office until 13 1999 when I understand you took retirement. 14 A: That's correct. 15 Q: And since taking retirement, what 16 have you been involved in? 17 A: I've continued to do some work on a 18 retainer basis with the Ministry. And I've also 19 attempted, so far without notable success to do some 20 writing. 21 Q: Okay. Perhaps I can get you to -- to 22 tell us about your joining the Ministry of the Attorney 23 General and the Crown Law Office Civil, and as I 24 understand it there was a bit of a baptism of fire, I 25 think.
111 A: Well, you may be referring to the -- 2 an early exposure to the Temagami case. 3 Q: Okay. 4 A: I think that was probably in early 5 1974. At that time Aboriginal law had not achieved 6 anywhere near the prominence on the legal landscape that 7 it has since. I know, you know, I think it's right to 8 say it was -- it was in its -- in its infancy if that, at 9 that time. 10 The Ministry of Consumer and Commercial 11 Relations, or something of that sort, was at that time 12 planning a massive -- well a massive -- a project, a 13 tourist attraction in Northern Ontario at a place called 14 Maple Mountain in North Eastern Ontario. 15 And as I recall the same staff that had 16 produced, you know, a couple of years earlier, Ontario 17 Place, on the Toronto waterfront -- 18 Q: Yes. 19 A: -- had been kept intact and they were 20 now sort of refocusing on this effort in Northern Ontario 21 which was to be a great economic boon and so forth to -- 22 to that region. The Temagami First Nation or actually a 23 corporation that had been incorporated by the -- by the 24 Temagami people, though had registered a caution under 25 the Land Titles Act.
121 The Ministry of Consumer and Commercial 2 Relations -- I may not have the title correct, but that 3 ministry was I think the only one in the Ontario 4 Government at that time that didn't have legal staff. 5 There were no lawyers in-house at that 6 particular ministry and -- but there was a chap in the 7 Crown law office who was kind of, you know, sort of, 8 permanently assigned to do work with that Ministry. 9 And he, when this matter came in about the 10 caution, was unfortunately going on vacation at that time 11 and he asked me would I take a look at that -- look at 12 this and see what I could make of this caution under the 13 Land Titles Act. 14 And -- and the -- and the -- so I don't 15 know if it was a baptism of fire, but it was -- that was 16 my introduction to the field of Aboriginal law. 17 Q: And did you follow that case? As I 18 understand it went -- wound its way through the legal 19 system, through the courts to the Supreme Court of Canada 20 ultimately? 21 A: Yes, it did. 22 Q: All right. And you maintained 23 carriage of that file throughout, from -- 24 A: Well, I wouldn't say I had carriage, 25 certainly not in the early days. I assisted a lawyer who
131 did and he was appointed to the bench, you know, a couple 2 of months before it was heard in the Supreme Court so at 3 that point I was -- I argued the case in the Supreme 4 Court. 5 Q: And aside from this Temagami case, in 6 the first instance, I understand that your practice 7 essentially evolved into primarily Aboriginal law? 8 A: Right. I -- in the civil service and 9 I'm sure elsewhere you quickly become typecast. And you 10 know if there's an Aboriginal matter comes in, well, 11 McCabe has -- has dealt with that other one, he should 12 receive this one as well. 13 Q: Okay. And, sir, working with the 14 Ministry of the Attorney General you would have 15 understood the relationship between that ministry and the 16 other -- other ministries within the Government? 17 A: Well, sort of, on a practical ongoing 18 working basis, yes. 19 Q: Okay. And there was a certain 20 obligation for the various ministries to be aware of 21 obligations that they may have under law? 22 A: Yes. 23 Q: And that was part of the task of your 24 office, I take it, to provide information and briefing so 25 that that -- those ministries might be aware of -- of
141 such obligations? 2 A: Yes. 3 Q: All right. I take it you're probably 4 aware of -- of a predecessor organization to what we've 5 come to call here as the Interministerial Committee also 6 known as Interministerial Committee on Aboriginal 7 Emergencies or Blockade Committee? It comes in various - 8 - various names. 9 You would have dealt with that -- with 10 that committee? 11 A: Yes, I think so. I mean, over the 12 course of -- of my years with the Ministry, you know very 13 often there would be meetings of one (1) sort or another 14 having to do with Aboriginal issues and -- and very often 15 I was in attendance at -- at those meetings. 16 I can't tell you when the Interministerial 17 Committee with which this Inquiry is concerned acquired a 18 kind of institutional existence. I would think that it - 19 - you know, my impression is that it -- it evolved 20 essentially and that at some point in its -- in its 21 evolution it began to have a name. All right. 22 And I -- you know, I'm not sure that that 23 name was consistent, but the -- you know the -- the 24 Emergency Committee or the Blockade Committee or, you 25 know, that sort of thing.
151 Q: In any event the function might have 2 been the same throughout. Is that -- would that be 3 consistent with your recollection? 4 A: Yes, well, you know, civil servants 5 and political staff would meet -- would meet when -- you 6 know when an emergency -- any -- or an emergent situation 7 would arise. 8 And, you know, in the -- in the passage of 9 time that group, you know, just, I would think, achieved 10 a kind of shorthand while the, you know, the 11 Interministerial Committee or the Blockade Committee or 12 whatever have you, should be called together again to 13 deal with this -- this new circumstance that has arisen. 14 Q: It was an ad hoc committee? 15 A: Yes. Yes. 16 Q: All right. Did you have any 17 involvement during the course of the -- of your practice 18 in Aboriginal law with the Government of Canada? 19 A: Yes. Typically if Ontario was sued 20 or, you know, was -- was on the receiving end of some -- 21 some litigation brought by an Aboriginal people, you 22 know, based on Aboriginal rights, treaty rights, the 23 Federal Government would be a co-defendant. Typically 24 Ontario and Canada and perhaps other parties would be -- 25 would be defendants in the action or respondents or -- or
161 what have you. 2 On numerous occasions over the years, we 3 would claim over against Canada. Ontario would claim 4 over against Canada as well so we were co-defendants and 5 at times we were -- we were adversaries also ,in relation 6 to these things. 7 So, I -- I -- yes, I had contact with -- 8 with lawyers at the Federal Government in relation to 9 that. Also, you know, interventions on Constitutional 10 issues at the Supreme Court level. There would be -- 11 there would be contact with Federal lawyers and, you 12 know, I'm sure from time to time on other things as well. 13 Q: Okay. And we've come to understand 14 that this Interministerial Committee was responsible 15 primarily for coming together on an ad hoc basis to deal 16 with Aboriginal emergencies and to deal, not necessarily 17 with the substantive issue that created or underpinned 18 the emergency but rather a process in which to attempt to 19 resolve that. 20 A: Yes. I think that's -- that's a fair 21 way of putting it. I think it's also probably part of 22 the role of this Committee though to impart information 23 to those who would make a decision as to, you know, what 24 is being claimed, you know, what has given rise, you 25 know, to the -- to the incident or the circumstance or
171 the situation that has occurred. 2 So, not -- it's not that this Committee 3 was in any position to actually resolve things, but it 4 was in a -- it was partly for the purpose of bringing 5 together information. And I suppose disseminating that 6 to those who would have, you know, responsibility for 7 trying to resolve the situation. 8 But as you say, it's an ad hoc committee 9 and so there's a lot of adhockery that, you know, that 10 goes on. You know, a circumstance arises and it's -- it's 11 dealt with by, you know, by people in a -- in a boardroom 12 as best they can. And, you know, my impression over the 13 years is this is dealt with different ways, you know, 14 depending on the particular circumstances of the issue. 15 Q: I see. And as I understand your 16 testimony in our earlier conversations, your role was 17 primarily as a litigator with the Ministry of the 18 Attorney General. 19 A: That's right. I was part of the 20 Crown Law Office Civil which is the civil litigation arm 21 of the Ministry and hence to the Government, largely. 22 So, yeah, that is -- that's why -- essentially yes, 23 that's -- that's -- 24 Q: And so your involvement with this 25 Committee, the Interministerial Committee would be as a
181 litigator? 2 A: Yes. 3 Q: Okay. And so the Committee would -- 4 would I take it, summon you or request your attendance to 5 come to these ad hoc meetings when they thought it would 6 be appropriate? 7 A: That's right. 8 Q: If you look at Tab 1 of the Book of 9 Documents before you, Mr. McCabe, there is a document 10 that's marked as an exhibit in these -- in this Inquiry, 11 is P-643. It is entitled, Statement of Political 12 Relationship as PR Guidelines Questions and Answers, and 13 dated August of 1992. 14 I take it you might be familiar with that 15 -- with this document? 16 A: I'm -- I'm not particularly familiar 17 although I may have seen it at some time with the SPR 18 Guidelines, Questions and Answers. I am familiar with 19 the Statement of Political Relationship. 20 Q: All right. And was that used in 21 order to -- to guide or temper the litigation that you 22 would have otherwise been involved in? 23 A: I think that -- I don't think so. I 24 think there's a provision in here. 25 It's been years since I've read the
191 Statement of Political Relationship, but as I recall 2 there's a provision in there, isn't there, something to 3 the effect that it -- it's -- it has either limited or no 4 effect with respect to the legal rights of parties, or 5 something of that sort. 6 Q: Indeed it -- does -- 7 A: I'm -- I'm sure I've misstated that, 8 but it's -- that's the gist of it as I recall. 9 Q: I think that's absolutely right. It 10 was meant to be simply a guideline, to -- to guide 11 primarily I would think political negotiations. 12 Would that be something that -- 13 A: I think that's fair, yes. 14 Q: -- you'd agree with? Yeah. 15 You were mentioning earlier the Temagami 16 instance and your previous involvement, insofar as 17 injunctions. And obviously one (1) of the things that 18 we'd be interested in, are interested in here, and we'll 19 ask you about a bit later, is your involvement in 20 obtaining an injunction here in the Ipperwash matter. 21 However, you had told us about your 22 involvement in the Temagami matter, was that an instance 23 where an injunction was sought? 24 A: I don't have very -- very precise 25 recollection of the -- of particular instances in which
201 injunctions were sought, but I know that they were. And 2 I have a -- a recollection, at times it was Ontario 3 seeking injunction, at times it was the Temagami First 4 Nation that was seeking to enjoin something. I may be 5 incorrect about that, but I think that's right. 6 I didn't have much to do with the Temagami 7 injunctions. I was concerned, you know, over a great -- 8 a large number of -- a large period of years with what 9 you might call the main line of the litigation; the -- 10 the action that went to trial and then to the Ontario 11 Court of Appeal and then to the Supreme Court of Canada 12 and indeed some litigation that -- that arose subsequent 13 to that. 14 But these emergent situations having to do 15 with developments in northeastern Ontario that gave rise 16 to the need for injunctions either by or against the 17 Province of Ontario, I -- as I recall had only a very 18 peripheral involvement in those. 19 Q: Okay. In 1991, sir, there was a 20 blockade in northern Ontario by a group that was headed 21 by one, Theron McCrady? 22 A: Yes. Theron McCrady. 23 Q: Theron, sorry. 24 A: Yes. 25 Q: And what can you tell us about that,
211 sir? 2 A: This is something I learned about -- 3 about, you know, four o'clock or so on a Friday afternoon 4 just before the Labour Day weekend, that there was this 5 circumstance that was occurring near Beardmore in 6 Northern Ontario, which is within the watershed of Lake 7 Nipigon north of Lake Superior. 8 I can't speak authoritatively at this 9 point as to exactly what the issue was, but I know that 10 there was a construction project which had been in the -- 11 in the offing and in the planning for a period of time, 12 that the -- Mister McCrady's group, which he called the 13 Poplar Point First Nation, which was not a -- a band 14 within the meaning of the Indian Act, he or -- or -- or 15 they or an organization that he was the spokesperson for, 16 was opposed to the commencement of the construction 17 project. And accordingly there was a blockade of a road 18 that -- that led to the -- led to the -- to the site of 19 the construction project. 20 There was, I believe, a need, just given 21 the exigencies of -- of whether in northern Ontario, to 22 get certain work done that year, that fall, so that the 23 thing could -- could be kept on -- on schedule. 24 Accordingly this was -- this -- this blockade and the 25 consequent inability of the -- of the -- of the proponent
221 of this construction project to proceed was -- was 2 considered a serious matter. 3 The Interministerial Committee or one (1) 4 of it's predecessors accordingly met, as I recall, pretty 5 -- I think on the Sat -- on the Friday, even on the 6 Saturday, and on the Sunday to deal with -- with the 7 matter. 8 And as a result of that on -- on the 9 Monday evening, this would be four (4) years before the 10 events with which this Inquiry is -- is predominantly 11 concerned, on the Monday evening Andrew McDonald of -- a 12 lawyer with MNR at that time, and I, travelled to Thunder 13 Bay to appear on -- on a motion for an ex parte 14 injunction the next morning; the Tuesday after Labour 15 Day, in Thunder Bay. 16 Q: Just with respect to the -- the 17 nature of the remedy that you were seeking, that is 18 specifically it was an ex parte injunction that was 19 sought in that instance? 20 A: Yes. 21 Q: And do you have any recollection, 22 sir, and I can appreciate if you don't, as to how the 23 decision to obtain an ex parte remedy in that instance 24 was arrived at? 25 And you mentioned there was meetings that
231 went on over the course of the Labour Day long weekend? 2 A: Yes, there were -- there were lengthy 3 meetings in the course of the weekend. I know that Mr. 4 Wildman, who was the Minister most particularly involved, 5 was -- and I don't think he was present at the meetings, 6 but I do recall him being on the speaker phone in that 7 room for, you know, what seems to me in my recollection 8 now some, what, fourteen (14) years later, for a lengthy 9 period of time. 10 And that was very much the issue; what -- 11 what was going to be done about the blockade on the -- on 12 the road. 13 And, you know, all I can say is that 14 emerging from those meetings was, you know, instructions 15 to me to proceed with the -- with the matter. 16 I'm sure the -- those meetings were taking 17 place, I think, on the fourth floor at 720 Bay Street and 18 I was up and down throughout a lot of that period to our 19 offices on the eighth floor at 720 Bay Street, actually 20 arranging along with Andrew for the production of 21 materials to be used on this -- on this. 22 So, that leads me to believe that, 23 essentially, the decision was made to proceed quite early 24 in the weekend. 25
241 (BRIEF PAUSE) 2 3 A: I also recall that in the course of 4 that weekend, speaking on the phone on at least one (1) 5 occasion to Mr. Hampton who was the Attorney General of 6 Ontario. 7 Q: All right. The reason that an ex 8 parte injunction was sought in that instance, as I 9 understand it, had been as a result of the breach of a 10 previous arrangement. 11 Does that assist you at all? 12 A: I've -- I have quickly looked over 13 the materials since then, I didn't remember that detail, 14 but that appears to be the case, yes. 15 Q: Okay. And we have up on the screen a 16 document. I think it's Inquiry Document 3000425. Is 17 that... 18 MR. DERRY MILLAR: 3000425. 19 20 CONTINUED BY MR. DONALD WORME: 21 Q: 3000425, which is the Motion Record 22 in that particular matter. And if we can -- if we can go 23 to page -- I'm not sure what page it is, but if we could 24 look at paragraph 3 of the nature of remedy sought. 25
251 (BRIEF PAUSE) 2 3 Q: Yeah, it's right there. And I just 4 draw your attention, Mr. McCabe, to number-- number 3. 5 6 (BRIEF PAUSE) 7 8 A: Yeah. 9 Q: And do you recognize that -- that 10 provision? 11 A: Well -- 12 Q: There's a -- there's a microphone 13 here, sorry. 14 A: Well, this is part of the relief 15 that's sought in this Motion, yes. 16 Q: Okay. And that particular provision, 17 do you know where that might have came from? 18 Is that something that you drafted? 19 A: Well, that's something that I'm 20 responsible for. You know, the actual provenance of the 21 provision, I can't recall. 22 Q: And we may see -- we -- I expect that 23 we will see this again, and I simply wanted to draw this 24 to your attention at -- at this moment. Good. Thank 25 you, sir.
261 (BRIEF PAUSE) 2 3 Q: Sir, if I could just have a moment, 4 Commissioner? 5 COMMISSIONER SIDNEY LINDEN: Sure. 6 7 (BRIEF PAUSE) 8 9 MR. DONALD WORME: Mr. Commissioner, 10 perhaps we can simply mark that as the next exhibit. I 11 expect that there are counsel who have some interest in 12 this and they will have probably some questions with 13 respect to this document, as well as the motion record 14 and order in the matter at -- in the matter at hand 15 that's already been made an exhibit. 16 COMMISSIONER SIDNEY LINDEN Is it in the 17 binder. Is that -- 18 MR. DONALD WORME: That is not in the 19 binder, sir. 20 COMMISSIONER SIDNEY LINDEN: No. I see. 21 All right. 22 THE REGISTRAR: P-748, Yuur Honour. 23 COMMISSIONER SIDNEY LINDEN: P-748. 24 Thank you. 25
271 --- EXHIBIT NO. P-748: Document Number 3000425 2 motion record from Tim 3 McCabe, September 02/'91 4 5 CONTINUED BY MR. DONALD WORME: 6 Q: And the injunctions were used for 7 what purposes. I mean, obviously, we understand that 8 there -- there's a legal force to them depending on the 9 nature of the order. It specifies what is to be done 10 with it. 11 But, do you know what other uses were -- 12 were made of such order, particularly by the OPP? 13 A: Yes. You know, my recollection was 14 that the OPP who were, you know, almost always -- and I 15 should be careful with the use of the word 'always' 16 because it suggests that there are a great number of 17 these circumstances, and there weren't. 18 But, when there was, you know, either a 19 blockade as in the Beardmore circumstance or this -- the 20 occupation of the Park with which this Inquiry is 21 concerned, in -- in those instances -- and no doubt there 22 were others that were -- if they didn't actually come to 23 fruition, there was some possibility that they may have 24 occurred. 25 My recollection is that the Ontario
281 Provincial Police was keen that an injunction be obtained 2 by the Province. Among other reasons because their 3 perception was that the existence of such an order would 4 make their job easier. 5 I suppose that it would become something 6 that would go into the mix of discussions with the people 7 on the ground who were the -- who had given rise to the 8 incident. 9 Q: It was meant, I would suggest, then 10 to add a further air of legitimacy to the -- to the 11 action? 12 A: Well, something to assist the police 13 in defusing the circumstance I think it would perhaps 14 be -- 15 Q: I appreciate your clarifying that. 16 Thank you. 17 And with respect to Camp Ipperwash, do you 18 know, sir, when you would have first become aware of the 19 situation developing with respect to the Camp and 20 Aboriginal people? 21 A: Well I'm quite sure that in 1993 22 which is, I take it the year that the Camp was first 23 occupied by Aboriginal people, I was, you know, made 24 aware of that circumstance. 25 Q: And do you recall that the
291 Interministerial Committee would have called meetings in 2 -- in 1993 in connection with that circumstance you just 3 referred? 4 A: Yes. 5 Q: All right. Had you attended any of 6 those meetings, sir, to your recollection? 7 A: Yes, I think I did. 8 Q: Okay. If I can refer you to Tab 3 of 9 the document in front of you; that is Inquiry Document 10 1008239. It is a letter under the -- under the head of 11 Ontario Native Affairs Secretariat, dated January 14th of 12 1993. And I see that you are on the distribution record 13 on page 2 of that. 14 A: Yes. Yes. 15 Q: And it sets out the purpose of this 16 meeting which was scheduled to be called on the 25th of 17 January of 1993. The purpose being to discuss Ontario's 18 interest if any, in the above action. And the action 19 refers to Chippewas of Kettle and Stony Point v. Canada 20 et al. 21 Do you recall that, sir? 22 A: I take it this refers to the action 23 that was brought by the Chippewas of Kettle and Stony 24 Point against Canada and prob -- yeah, the Township and 25 some private landowners.
301 Q: All right. And it is not in relation 2 to Camp Ipperwash? 3 A: I -- I don't think so. 4 Q: All right. Sorry. And do you recall 5 attending at -- at this meeting, sir? 6 A: I recall attending a meeting 7 concerning the matter. Charlotte Bell, who's a lawyer 8 with the Federal Department of Justice was in attendance 9 and, as I recall, her objective was to persuade Ontario 10 to become involved in some way in the action. 11 And, you know, I think that was -- that 12 invitation was -- was declined. 13 Q: All right. If you look at Tab 4, 14 just the next tab in that binder, there's a further 15 letter dated March the 8th, again discussing a -- 16 arranging, perhaps, a meeting of the Interministerial 17 Committee for March the 25th. 18 A: Hmm hmm. 19 Q: And you'll note that the first full 20 paragraph following that announcement is there -- is an 21 invitation of Ms. Charlotte Bell, QC, Senior Counsel, 22 Department of Justice Canada. 23 I take it that's the meeting that you were 24 -- you've just referred to? 25 A: I take it it is, yes.
311 (BRIEF PAUSE) 2 3 Q: And do you know what the outcome of 4 these meetings, with respect to the invitation by Canada 5 to Ontario to joint this action, which I think has been 6 described here as the West Ipper -- Ipperwash action? 7 A: Right. Well, I don't think Ontario 8 had any further involvement so far as I know, in those 9 actions, or in that action. 10 Q: And if I can refer you, then, to Tab 11 -- to Tab number 6. These are meeting notes of the 12 Interministerial Committee of Friday May 31st of '93 -- 13 May 21st, 1993, pardon me. 14 Do you see that? 15 A: Yes. 16 Q: And it talks about Weir number 2 17 under paragraph (a) and on page 2 under heading, B. 18 Potential Bridge Blockades? 19 A: Yes. 20 Q: Do you know what -- first of all, 21 what those were, in relation to? Do you have any recall 22 at -- at this point? 23 A: No, I have no real recall except it, 24 you know, a vague recollection of an issue involving the 25 Grand River, Dunnville -- you know, that there was --
321 there was an issue there. 2 Q: Okay. And if you turn to the next 3 page, on page 3 of that same document. It is Exhibit P- 4 712 in this Inquiry. At page 3, there's a heading, Camp 5 Ipperwash and Ipperwash Provincial Park. 6 There's updates that would be appear to be 7 given, first of all by ONAS, one John Van West. 8 A: Yes. 9 Q: And by MNR, by Ron Baldwin. And it 10 would seem that insofar as this -- this update is 11 concerned, that there were certain individuals that had 12 came into Park and had moved some sort of a structure 13 into the Park. 14 Do you recall that at all, sir? 15 A: I have no specific recollection. 16 Again, it's a vague, you know -- the document brings 17 back, sort of, a vague recollection of something that 18 happened in 1993 -- 19 Q: Right. 20 A: -- in relation to the Park. Apart 21 from this document, I would have no recollection, I'm 22 sure. 23 Q: And on the fourth full -- full 24 paragraph on page 4, there's some discussion about a 25 bailiff's order that had been served by the First Nation,
331 asserting ownership of the Park lands. Do you see that? 2 3 (BRIEF PAUSE) 4 5 A: Yes, in the middle of page 4? 6 Q: Yes. 7 8 (BRIEF PAUSE) 9 10 A: Yes, I see that. 11 Q: And the only question that I was 12 going to ask you around that is, whether or not you 13 recall the bailiff's order and whether you had anything 14 to do with respect to that bailiff's order, either 15 commenting on it or providing any sort of analysis? 16 A: Yes, I remember seeing the document 17 and, you know, sort of concluding that it appeared to 18 have no particular legal meaning. 19 Q: All right. And if you refer to the 20 next page, page 5 of that same document, number 2, 21 Identification of Issues, Resolution and Work Plan; A. 22 Camp Ipperwash. 23 If you go down again towards the middle of 24 the page, there's some comments that are attributed to 25 you.
341 A: Yes. 2 Q: Yes. "Tim McCabe stated that a 3 longer term response must be developed 4 regarding: 5 1. The Bailiff's Order. 6 2. The basis of the claim to the Park, 7 i.e., surrender." 8 Do you recall what you might have been 9 referring to at that point? 10 A: I don't. 11 Q: All right. 12 13 (BRIEF PAUSE) 14 15 Q: And lastly, if we could just turn to 16 page 6 of that document, at the bottom of the page -- 17 A: On page 5 I notice -- 18 Q: Yes. 19 A: -- that above that, under the 20 heading, Ipperwash Provincial Park, it says: 21 "Andrew McDonald questioned whether 22 there is any issue regarding the 23 validity of the 1928 surrender for 24 sale." 25 I have no recollection as to the
351 conversation that took place, but I would surmise, 2 perhaps, that later on where I'm said to have stated 3 something, that I'm referring to that. 4 Q: Thank you. And at page 6, right at 5 the bottom of the page, it would appear that there was a 6 working that was established to do what it would seem you 7 had recommended and that is to look to a longer term 8 solution and that Andrew would liaise with you on a 9 regular basis. 10 A: Yes, I don't recall any such liaison. 11 Q: All right. And, sir, do you recall 12 what the position of the Ontario Government at that point 13 in time would have been, relative to both Camp Ipperwash 14 as well as the Park? 15 Was there any -- was there any opinion 16 formulated as far as -- as you can recall? 17 A: Yes, I -- I think that the -- you 18 know, the -- the idea was that the circumstances of the 19 Camp and the Park were radically different. 20 You know, that the Camp had been 21 appropriated by the Federal Government during the Second 22 World War and I, you know, as I recall, there was a kind 23 of quasi-promise or a promise in the appropriation 24 itself, that the land would eventually be returned or 25 might eventually return when it was no longer needed for
361 the purposes of national defence and that sort of thing. 2 And that accordingly, the -- the 3 Aboriginal people had a legitimate grievance with respect 4 to the Camp because it was -- you know, it had never been 5 returned. 6 Whereas the park had been acquired on the 7 open property market by the Ontario Government in the 8 1930's, some years after it had been surrendered for sale 9 by the First Nation. 10 Q: You'll note on page 7 of that same 11 document we've just been referring to, P-712, under 12 number 5: 13 "Dunnville Working Group Committee will 14 be notified as to the next meeting 15 group." 16 First of all, were you involved in that 17 working Group Committee, that is the Dunnville Working 18 Group Committee? 19 A: No. 20 Q: And then: 21 "the Ipperwash Working Group 22 Committee is to meet, unless notified 23 otherwise by Lan -- Yan Lazor on the 24 25th of May, 1993." 25 Do you see that?
371 A: Yes. 2 Q: And did you attend further meetings, 3 did you attend that meeting in May of 1993? 4 A: I can't remember. 5 Q: Okay. 6 A: I don't remember being part of a -- 7 of a working group committee. 8 Q: You had, at that point in time, a 9 young lawyer who was just finishing articling, Elizabeth 10 Christie -- 11 A: Hmm hmm. 12 Q: -- working with you. 13 A: Yes. 14 Q: And you'll know that she has just 15 testified here before this Inquiry and -- 16 A: Yes. 17 Q: -- has told us a bit about her work 18 with you. She told, for example, that she attended a 19 meeting at your insistence, on -- a meeting of the 20 Interministerial Committee on June the 4th of 1993. 21 Do you recall that at all? 22 A: Yeah. I can't -- I don't recall 23 particulars of it, but yes I remember asking Elizabeth if 24 she -- you know, telling her of this meeting and asking 25 whether she would go and -- and essentially report back.
381 Q: Okay. And do you have any specific 2 recollection, sir, of what report she might have provided 3 to you? 4 A: No, I don't. 5 Q: Okay. Had you been shown by her or 6 by anybody else, minutes of the meetings that she would 7 have attended? 8 A: Yeah. I can't remember being shown 9 by Elizabeth, minutes of meetings that she would have 10 attended. 11 Q: Okay. 12 A: I think at this stage ONAS was in the 13 practice of distributing minutes from meetings. So, you 14 know, it's quite possible that ONAS would have provided 15 copies of minutes to me. 16 Q: At Tab Number 9, Mr. McCabe, there is 17 a working group meeting, that is the Interministerial 18 working group, Friday, June 4th -- dated Friday, June 19 4th. Sorry, I'm taking you back to 1993 with this. 20 A: All right. 21 Q: And in particular paragraph (b) MNR, 22 Ron Baldwin, and a notation just under that: 23 "The existing structure had been 24 removed from the Ipperwash Provincial 25 Park and moved to Camp Ipperwash.
391 There's an unconfirmed rumour that a 2 rally gathering was being organized for 3 the weekend to take place at Camp 4 Ipperwash." 5 Can you recall that kind of information 6 being provided to you by Elizabeth Christie or anybody 7 else? 8 A: I had no specific recollection of 9 particular information. I have a -- a vague recollection 10 of Elizabeth being at a meeting, you know, concerning the 11 situation at the Camp that summer and, you know, knowing 12 generally of -- of the occupation of the -- of the Camp. 13 Q: Okay. And at page 2 of that 14 document, at the bottom of page 2, you see the notation 15 that: 16 "Yan will follow up with Eileen Hipfner 17 and Tim McCabe as to the legal opinions 18 concerning the options available to the 19 OPP." 20 A: Yes. 21 Q: And at the middle of the next page 22 the bullet, fourth from the -- from the bottom: 23 "Elizabeth Christie will address Brian 24 Blomme's query as to the preparation 25 for an injunction with Tim McCabe."
401 A: Yes. 2 Q: Yeah. And I take it that you would 3 have again in looking at these documents perhaps a vague 4 recollection of those activities taking place in that 5 time? 6 A: Well, I guess you could say I have a 7 vague recollection, yes. I would surmise and you know, 8 again I have no specific recollection but the -- what for 9 example is referred to on page 3: 10 "Elizabeth will address Brian Blomme's 11 query as to the preparation for an 12 injunction with Tim McCabe." 13 I don't what the injunction would have 14 been in respect of -- at that point. But, if we were 15 concerned about the possibility of an occupation of the 16 Park, my surmise would be -- my concern was let's get 17 together the title history of the Park. All right. 18 Let's document the surrender. Let's document the 19 acquisition of title by the Ontario Government. 20 Q: If I can refer you to Tab Number 10, 21 this is the Interministerial Committee meeting notes of 22 June 25th, 1993. Again, it concerns an update with 23 respect to Camp Ipperwash. Are you with me? 24 A: Yes. 25 Q: And I note that you are the
411 representative; that's noted at the very back page. 2 A: Yeah. That -- that's -- I'm not sure 3 what it means when it says "Tim McCabe" and then in 4 brackets "(Representative)". 5 I'm not sure whether that means I was in 6 attendance or whether somebody as my representative was 7 in attendance. I don't know. 8 Q: Okay. And if we could just turn to 9 page 2 of that, Identification of Issues and Strategy for 10 Resolution, it would appear that -- that any resolution 11 did not necessarily concern Ontario. 12 As this was -- as you pointed out earlier 13 this was a matter of Federal lands, it concerned the 14 Department of National Defence and not the Park at that 15 point in time. 16 A: Right. 17 Q: And so the indication there is, is 18 that a Federal injunction was desired insofar as the 19 occupation of -- of the Camp? 20 A: Yes. 21 Q: All right. And I take it you had 22 not role then, or no instructions to take any action or 23 to do any further research or investigation, insofar as 24 this matter at that point? 25 A: Yes. I had no instructions to take
421 any course. You know, certainly I don't recall any 2 instructions to do anything and I'm not sure what that 3 would have been. 4 Q: And lastly, on this point if I can 5 refer you to paragraph -- pardon me to Tab Number 12 6 which is a memorandum dated July 30th, 1993. It's 7 Inquiry Document 1006011? 8 A: Yes? 9 Q: A memorandum to yourself from Shin 10 Imai who was counsel with the Policy Development Decision 11 -- Division? 12 A: Yes. 13 Q: Re. Maynard George. And I take it 14 that that is Maynard T. George, not another Maynard 15 George we've become familiar with? 16 A: I'm not sure who that is. 17 Q: All right. 18 A: I take it Maynard George had written 19 a letter to the Attorney General. 20 Q: And it is attached there, yes, sir. 21 A: Yes. Yes. 22 Q: And you'll see at the -- at the first 23 paragraph of the memo on the -- on the next page the 24 letter of Maynard George to Attorney General July 15th/93 25 and that letter is attached. And it would seem that --
431 that Mr. Maynard T. George was -- had presented himself 2 as the chief of the Stoney Point First Nation and was 3 seeking to provide notice of the intention to re- 4 establish the band. 5 Is that consistent with what you recall? 6 A: Yes. 7 Q: And aside from this, sir, did you 8 have any further to do -- to do with that particular file 9 at that time? 10 A: No, I don't think I did. One (1) 11 thing that should be mentioned here, I think, is that, 12 you know, all of us in the civil service work, one (1) of 13 the -- one (1) of the regular duties that we were called 14 upon to perform was draft replies, draft responses to 15 letters to the Minister and I take it that's my 16 involvement here. 17 A letter had come into the -- to -- to Ms. 18 Boyd as the -- as to the Attorney General and it had been 19 assigned. It may have been assigned originally to Shin 20 Imai, but in -- in his absence I'm sure the -- the paper 21 here will indicate how that worked. But ultimately I was 22 asked to draft a -- a response to Mr. George's letter and 23 that's what I've done here. 24 But, that was -- that was in the course of 25 normal duties of, you know, lawyers in -- in the Ministry
441 as well as others, I'm sure, on other sorts of issues. 2 But, if it was a legal issue of sorts these things would 3 be assigned to lawyers in the Ministry and in my time 4 I've written many, many, many of -- of these responses. 5 Q: Okay. If I can refer you then to Tab 6 Number 14. It's Inquiry Document 1006009, that is a 7 letter under the hand of Marion Boyd, Attorney General, 8 minister responsible for women's issues. It's addressed 9 to Chief Maynard George. 10 And I take it that this is the type of 11 letter and perhaps this is even the letter that you might 12 have drafted? 13 A: I believe it is, yes. I think there 14 are some revisions that had been suggested by various 15 people, Shin Imai, Yan Lazor, to my original draft, and I 16 take it this is probably the version that went out 17 ultimately. 18 Q: Okay. Commissioner, perhaps I could 19 have the previous -- the previous document marked as -- 20 as an exhibit, that being -- pardon me, if I could have 21 this document marked as the next exhibit, 1006009, the 22 letter that was just referred to? 23 THE REGISTRAR: P-749, Your Honour. 24 COMMISSIONER SIDNEY LINDEN: P-749. 25
451 --- EXHIBIT NO. P-749: Document Number 1006009. 2 Letter from Marion Boyd to 3 Chief Maynard George Re. His 4 letter of July 15/'93, 5 September '93. 6 7 COMMISSIONER SIDNEY LINDEN: There's two 8 (2) different versions of page 1. Are both part of the 9 exhibit? 10 MR. DONALD WORME: Yes. 11 12 CONTINUED BY MR. DONALD WORME: 13 Q: So, the first page, I take it, Mr. 14 McCabe, would be the draft that you had initially 15 provided. The second and third page would be the actual 16 letter which seemed to be at least stamped, "original". 17 I expect that that says, "original 18 signed". 19 20 (BRIEF PAUSE) 21 22 A: I'd have to look at the difference 23 between the first page, the one where there's a 24 handwritten note to me from Jackie to the effect that 25 this is a revised first page.
461 I'd have to look to see what the 2 differences are between the two (2). 3 Q: Do you want to take a moment to do 4 that? 5 A: All right. 6 COMMISSIONER SIDNEY LINDEN: They look 7 the same to me. 8 MR. DONALD WORME: All right. 9 COMMISSIONER SIDNEY LINDEN: That's why I 10 ask. 11 12 (BRIEF PAUSE) 13 14 THE WITNESS: I don't see any difference. 15 16 CONTINUED BY MR. DONALD WORME: 17 Q: Okay. I'm going to move next, Mr. 18 McCabe, to 1995. 19 A: Oh, oh it appears that the difference 20 may be the spelling of the word, "Stoney". 21 COMMISSIONER SIDNEY LINDEN: Well, I was 22 looking for that and I didn't notice it. 23 THE WITNESS: No. The handwritten notes 24 said I had to revise the word 'Stoney' but it seems to be 25 the same in both instances, so.
471 2 CONTINUED BY MR. DONALD WORME: 3 Q: Just on that note, the -- the name 4 "Stoney" were you aware that there was a distinction in 5 the use of -- of that as between the Kettle and Stony 6 Point First Nation proper and -- 7 A: Yes, I remember that. 8 Q: -- and this group? 9 A: Yes. 10 Q: Okay. And that would -- that would 11 speak to the revision that Jackie, and I take it that's 12 Jackie Edwards, your legal assistant? 13 A: Yes. 14 Q: All right. And that's what she would 15 have been speaking to? 16 A: Yes. 17 Q: Simply that there was a distinction 18 in the use of -- of the word 'Stoney'? 19 A: Right. 20 Q: Okay. Sir, moving ahead, but pardon 21 me, just before we end that, I take it that you had, as 22 you've indicated earlier, no instructions. 23 Did you open a file, did you maintain a 24 file as a result of your attendances -- 25 A: I don't --
481 Q: -- to date that you've spoken to? 2 A: I don't think I did, no. 3 Q: All right. And I suggest you would 4 have remained, at least familiar, with the Ipperwash 5 matter throughout the balance of that year and the -- and 6 the subsequent year, 1994? 7 A: I knew of its existence. I doubt 8 very much if I was paying very much attention on a -- on 9 a regular basis to the events at -- at Ipperwash Camp. 10 Q: And in 1995, in June of 1995, we of 11 course know that there was the election of a new 12 government -- 13 A: Yes. 14 Q: -- in the province of Ontario. 15 A: Yes. 16 Q: Had -- had you been serving the 17 Government in any previous changes of administration? 18 A: Yes, several. 19 Q: All right. And did you know whether 20 or could you tell us whether there was, in your -- in 21 your view, any distinction between the manner in which 22 ministers and other government officials were provided 23 briefings, for example, on what was going on within the 24 applicable ministry? 25 A: The impression I have was that
491 whereas earlier administrations were -- it seemed to me 2 that on a regular basis, I was briefing the Attorney 3 General on, normally matters in litigation. 4 I can recall doing that to Mr. McMurtry 5 now the Chief Justice, when he was Attorney General, you 6 know, on a -- I wouldn't say on a regular basis, but from 7 time to time, he would want to talk to the lawyers about 8 some litigious matter that was in the office. That was 9 certainly the case under Mr. Scott at the advent of the 10 Liberal Government in 1985, I think. 11 Mr. Scott was, of course, a very 12 accomplished litigator in Ontario and it was always my 13 impression that the part of his job at Attorney General 14 that he enjoyed the most was litigation. 15 So, it was my distinct impression that Mr. 16 Scott enjoyed, and on a regular basis, wanted to talk to 17 the lawyers who were doing the work. That may have had a 18 lot to do with his, you know, personal predilections and 19 so forth that would be -- that would be speculative. 20 And you know, to some extent I think 21 during the NDP administration from 1990 until 1995, that 22 was the case. I can remember, you know, certainly on 23 more than one occasion briefing, in discussions with Mr. 24 Hampton himself as -- in addition to his political staff. 25 And -- and you know, in earlier instances there would
501 often be staff, you know, political staff there as well. 2 During the -- the four (4) years that I 3 served under the -- under the -- after the advent of the 4 Harris government in 1995, there didn't seem to be much 5 interest in hearing directly from the lawyers in -- this 6 is my experience and the experience of others dealing 7 with other issues may have been different. 8 But, my experience was I don't think I 9 ever did brief Mr. Harnick or his successor during the, 10 you know, short time after Mr. Harnick wasn't the 11 Attorney General and I was still -- I was still with the 12 Ministry. 13 I don't recall, I may be wrong, but I 14 don't recall ever actually being involved in a briefing 15 with the Minister himself. It's speculative on my part, 16 but I can speculate that I -- I -- I believe that Mr. 17 Harnick saw ONAS as kind of a one-stop shopping venue 18 with respect to Aboriginal issues. 19 And that, you know, the litigation aspect 20 of it whether -- for whatever reason, he wasn't 21 interested, it didn't seem. I wasn't summoned to attend 22 briefings with Mr. Harnick during that period. 23 Q: Did you or your staff, any of your 24 staff, have occasion to brief any of the ministers or any 25 of his polit -- any of the political staff of the
511 ministers with respect to any obligations that they might 2 have, specifically with respect to Aboriginal issues? 3 A: I can't, you know, I can't recall. I 4 know that there were instances when, you know, I would be 5 in particular matters. I can't remember what they were 6 specifically. But, Dave Moran for example, I think was a 7 -- was a political staffer of the Attorney General. 8 So, you know, if -- if I was involved in a 9 conversation about an Aboriginal issue, I'm sure Section 10 35 of the Constitution Act 1982 would loom very large in 11 the conversation. 12 Q: Okay. But, you have no specific 13 recollection of any discussions or briefings on that 14 topic? 15 A: No specific briefing on the topic. I 16 had, kind of -- no abstract, you know, briefing on the 17 meeting of Section 35 or anything of that sort, no. 18 Q: All right. Did you get a general 19 sense, sir, about the direction or the approach that 20 would be taken by the new government in 1995 with respect 21 to Aboriginal people, Aboriginal issues and events? 22 A: My impression was that the -- that 23 the, you know, the desire of the new government was to 24 deal with -- with Aboriginal peoples and to -- and to 25 assist Aboriginal peoples in the area of economic
521 development, that sort of thing, that -- that Aboriginal 2 communities were to be empowered more than they had been 3 in the past. 4 And that they were to -- I mean I -- you 5 know, I'm -- I'm using words here that are -- that are my 6 words, I think, rather than somebody else's and -- and 7 it's also important to know I think that this is very 8 much an impression that I have at this stage rather than, 9 you know, hearing this very specifically and -- and 10 pointedly from anyone. 11 But, my impression was that the -- that 12 the -- that that was the case. That, you know, economic 13 development of Aboriginal peoples needed to be, you know, 14 given a -- a step up in that way and that that was going 15 to be the focus of -- of the -- of the Government's 16 policy with respect to Aboriginal peoples. And it was my 17 impression that an attempt was made to reorient ONAS as a 18 matter of fact in that direction. 19 Q: Okay. Given your impression of -- of 20 the reorientation of ONAS, did it seem to you that there 21 was a reorientation, as well, with respect to the 22 litigation that Ontario might have been involved in, that 23 you would have been involved in, in respect to Aboriginal 24 issues? 25 A: No. And -- and there couldn't be,
531 right, because Section 35(1) and -- and all of the law 2 around that, having to do with, you know, the fiduciary 3 obligations of the Crown to the Aboriginal peoples, is 4 simply a brute fact, right. 5 And accordingly, if there's -- if there's 6 litigation involving Aboriginal peoples, that's certainly 7 going to loom large. 8 Q: Okay. 9 A: And you, from that point of view, the 10 policy of the Government and so forth, mattered little or 11 none. 12 Q: Okay. Is it your view then, sir, 13 that it would not be in keeping with -- with the way a 14 government operates that if, for example, you were in the 15 course of litigation that someone might come to you and 16 tell you to change the direction perhaps about, let's 17 say, your factum? 18 A: I -- I don't recall any instance of 19 that. 20 Q: In the summer of 1995, sir, we are 21 all aware that in July 29th of 1995, that the people who 22 were in occupation of Camp Ipperwash on what has been 23 called the ranges of Camp Ipperwash, had then moved into 24 the barracks area or the built-up area. 25 You became familiar with that at some
541 point? 2 A: You know, I can't recall, you know, 3 specifically becoming familiar with that event in -- in - 4 - you know, as it unfolded in the summer of 1995. 5 You know, I've been told recently by 6 Elizabeth that I was on vacation, it seemed, most of the 7 summer of 1995. I -- you know, I can't confirm that, but 8 neither can I deny it. 9 10 (BRIEF PAUSE) 11 12 Q: But, you did become aware of a 13 meeting of the Interministerial Committee that occurred 14 on August the 2nd of 1995? 15 A: I suppose I did, unless this 16 scurrilous charge of Elizabeth's is true, in which case I 17 may not have. 18 Q: If I can refer you to Tab number 16 19 of the book of documents in front of you; that is the 20 meeting notes of the IMC of August 2nd of 1995, presently 21 marked as P-506 in -- in this Inquiry. 22 And you'll note on the second page of 23 that, The Participants in Attendance, Elizabeth Christie 24 is noted as being in attendance at that. 25
551 (BRIEF PAUSE) 2 3 A: Yes. 4 Q: And given the reporting relationship 5 as between you and Ms. Christie, Dr. Christie, I take it 6 that she would have informed you as to; 1. the occurrence 7 of this meeting, and perhaps the -- the discussion that 8 would have went on in the meeting? 9 A: Yeah, I -- that's very likely, you 10 know, if I was in the office at any time after August 11 the 2nd and before September the 5th. 12 Q: There's nothing, I take it, that 13 jumps out at you, even in looking at this document, and I 14 know you've had occasion to -- to read it earlier, that 15 refreshes your memory insofar as what might have been 16 going on at that particular time, that is, in August -- 17 early August of 1995? 18 A: No. 19 20 (BRIEF PAUSE) 21 22 Q: Throughout the balance of that 23 summer, Mr. McCabe, do you have any other recollections 24 with respect to the goings on at Camp Ipperwash? 25 A: I don't.
561 Q: Okay. You had been aware of this 2 since 1993 and I take it your level of awareness was 3 simply the same? 4 A: Yes. 5 Q: All right. Sir, on September the 5th 6 of 1995, you became aware that there was a further 7 movement, if I can put it that way, of -- of the 8 occupation that had been ongoing at Camp Ipperwash. 9 A: Yes. 10 Q: All right. And what can you tell us 11 about that? 12 A: Well, I think it was when I arrived 13 at the office that morning, that I was made aware of that 14 fact; I can't remember from whom or in what way. 15 Q: All right. If I can refer you to Tab 16 number 18; it's marked as P-509. Those are further 17 meeting notes of the IMC dated September the 5th of 1995. 18 And this meeting is in respect to the Ipperwash 19 Provincial Park occupation by the, quote, "Stoney 20 Pointers," end quote, group. 21 Do you see that? 22 A: Yes. 23 Q: And in attendance was Elizabeth 24 Christie. I see that you are not noted as in attendance, 25 and I take it you weren't at that meeting?
571 A: That's right. 2 Q: And given your working relationship 3 again with Ms. Christie, at that point in time you might 4 have discussed this matter with her before her 5 attendance? 6 A: Yes. 7 Q: Do you have any specific recollection 8 of anything that you might have talked about prior to her 9 attendance at this meeting? 10 A: I -- I don't really, no. 11 Q: If I refer you to page 2 of that 12 document, sir, under Item 3 there's options and there's a 13 set of three (3) separate options set out and they 14 include number: 15 "1. Criminal Charges, eg. mischief. 16 2. Trespass Offences [and in brackets] 17 (Provincial Parks Act, Trespass to 18 Property Act and Public Lands Act). 19 3. Civil injunction proceedings ex 20 parte or interim." 21 A: Yes. 22 Q: And in looking at that, sir, is that 23 the kind of discussions that you and Ms. Christie might 24 have? 25 A: Yes.
581 Q: All right. 2 A: I mean our -- our concern would be of 3 course with number 3. 4 5 (BRIEF PAUSE) 6 7 Q: And you recall, sir, that Elizabeth 8 Christie would have returned from the meeting and advised 9 you that there was as is noted on page 3 of that 10 memorandum, Next Steps to Take? And if you'll see the 11 first -- the first bullet under the three (3) -- three 12 (3) numbered points, it reads: 13 "Lawyers from MAG, ONAS, and MNR will 14 evaluate the legal options outlined 15 above in order to brief the Committee 16 at its next meeting." 17 A: Yes. 18 Q: And you'll see that the next meeting 19 was scheduled for 9:30 the next morning? 20 A: Yes. 21 Q: All right. You recall then, as a 22 result of her attendance back and reporting the tasks 23 that had been assigned, engaging in those tasks? 24 A: Yes. 25 Q: All right. And insofar as achieving
591 those tasks or fulfilling those tasks, what -- what is it 2 that you can recall doing? 3 A: My recollection, and it -- it, you 4 know, it may not be comprehensive or -- or perfect, but 5 my recollection is of working with Elizabeth in the 6 library at -- at -- at 720 Bay, in the law library at 7 720 Bay. And the way I remember it in any event, it was 8 on the evening of September the 5th. 9 And our task, as I recall it, was to put 10 together, you know, a brief summary of legal remedies 11 that might be pursued or statues that might be relied 12 upon. 13 My recollection is that Scott Hutchison 14 was going to contribute the portion on the Criminal Code, 15 and that everything else was left to Elizabeth and us -- 16 and -- and I. 17 Q: Okay. Aside from her reporting these 18 tasks to you, do you recall Ms. Christie reporting to you 19 the presence, first of all, of -- of political people in 20 that meeting? 21 A: Yes. 22 Q: And perhaps did she report to you, if 23 you can recall, the positions taken by certain of these 24 political people? 25 A: Yes. I -- you know I think she
601 indicated that the political people, Deb Hutton was the 2 name and I -- this may have been the first time I'd heard 3 the name, 'Deb Hutton', but people who were representing 4 the Premier were, you know, certain in their view that 5 this occupation of the Park should not be allowed to, you 6 know, continue for a lengthy period. 7 Q: Is that as -- as specific as you can 8 recall? 9 A: Yes. 10 11 (BRIEF PAUSE) 12 13 Q: We've had evidence in this Inquiry, 14 Mr. McCabe, of words used by Ms. Hutton to the effect 15 that the Premier was hawkish on the issue. 16 Is that anything at all that -- that 17 assists you in your recollection? 18 A: Well, i can't remember, you know, 19 having that word repeated to me, but it certainly is 20 consistent with, you know, the impression that I received 21 from Elizabeth that, as I say, that -- you know, that -- 22 I think, the impression that Elizabeth brought back to me 23 was that Ms. Hutton was concerned that the civil servants 24 not allow, you know, the -- civil servants not drag their 25 feet.
611 Q: Okay. We have a document that is 2 marked is Exhibit P-649 in these proceedings. It is an 3 e-mail from Julie Jai to Yan Lazor. It's dated Tuesday 4 September the 5th, 1995 and it's time is 2:27 in the 5 afternoon. 6 And it's a recital, essentially, of the 7 Interministerial Committee and -- and I take it from her 8 notes -- 9 A: Hmm hmm. 10 Q: -- on this. You've had a chance to 11 take a look at this. I just want to put that in front of 12 you, if I may. 13 14 (BRIEF PAUSE) 15 16 A: Thank you. 17 Q: And you'll see where it indicates 18 that the Committee is going to be meeting again tomorrow 19 at 9:30 and that in the interim, a sub-group of lawyers 20 from MNR, ONAS and MAG was to meet to evaluate the legal 21 options. 22 We've gone through this briefly already. 23 You with me on that? 24 A: Yes. 25 Q: And among the evaluations is the
621 chances -- pardon me, the chances of success and timing 2 for; 1. an injunction, either ex parte or interim. 3 And I think you've already told us that 4 that would be of interest to you? 5 A: Yes. 6 Q: And secondly charges, either Criminal 7 Code or mischief or trespass under the statutes. And 8 those would be the -- the responsibility of others; Scott 9 Hutchison with respect to the Criminal Code matters. 10 A: Yes. 11 Q: All right. She goes on to note: 12 "I'm working on a blue note on this 13 with an attachment to come from 14 Elizabeth Christie and Andrew 15 McDonald." 16 And I take it that that is the work that 17 you've told us that you and Elizabeth were engaged in 18 that afternoon in the library. 19 A: Could be. 20 Q: All right. And you'll note, just 21 further down: 22 "It was agreed that no legal action 23 would proceed until the lawyers sub- 24 group had done a risk assessment of the 25 options so we could take the best
631 course possible to reach the agreed- 2 upon goal, which is the removal of the 3 people from the Park and until we had 4 direction from Minister Harnick." 5 You see that? 6 A: Yes. 7 Q: First of all, do you have any 8 recollection in participating in a lawyers sub-group? 9 A: I don't. 10 Q: All right. And the risk assessment, 11 I take it, that was the work again that you and Ms. 12 Christie were engaged in? 13 A: I suppose it is, yes. I suppose 14 that's the way it's been described in this -- in this 15 document. 16 Q: And I guess the last point of 17 interest, to me at least, on that note is that there was 18 to be some awaiting direction from Minister Harnick. 19 Do you have any recollection of that, or 20 do you have any comment on -- on that? 21 A: I don't specifically, you know, 22 remember awaiting any direction from Minister Harnick. 23 My recollection as -- of what Elizabeth and I, and Scott 24 Hutchison were up to on September the 5th was preparing 25 this document or this information for the Committee, the
641 Interministerial Committee, the next day. 2 Q: I understand, then, that you would 3 have worked on -- on a memo, outlining those options -- 4 A: Yes. 5 Q: -- as is indicated there and, of 6 course, confirmed in the meeting notes taken from that -- 7 from that meeting. I think we've just referred to those 8 as well. 9 Do you recall the -- the memo at all? 10 Have you seen it since the preparation of that? 11 A: Well, I've seen it very -- I've seen 12 a memo very recently. I can't remember when it was 13 actually produced. As I say, my recollection is, we were 14 working on this in the evening of the Tuesday, Tuesday 15 the 5th of September. 16 So -- and I know that I didn't type it. 17 But, it's poss -- you know, it -- it's possible, I 18 suppose, that Elizabeth typed it, or failing that I would 19 expect that it was typed the next day. 20 I can't remember seeing it the next day 21 anywhere. Either at the meeting or -- or at the 22 Interministerial meeting later in the day. Or -- or, you 23 know, so what actually happened, how it went from 24 whatever we had prepared the night before into that form 25 in which we have it today, you know, I'm not sure. And
651 I'm not sure what use was made of it actually the next 2 day. 3 Q: And do you recall, sir, whether on 4 September the 5th, aside from having a report back from 5 Elizabeth Christie and going to work in the library and 6 into that evening on this memorandum, whether you might 7 have had any other meetings on that day? 8 A: I don't think I had any meetings on 9 the 5th. I did on the 6th. 10 Q: Okay. Well let's maybe just move 11 then to the 6th. And I understand that there was -- that 12 you were in -- involved in a meeting early -- early in 13 the morning -- 14 A: Yes. 15 Q: -- in advance of the Interministerial 16 Committee which had been scheduled for 9:30 a.m. 17 A: Yes. 18 Q: And can you tell us about that 19 please? 20 A: Well we must have known about this 21 the day before. We must have known about -- that we had 22 been asked to meet with Mr. Taman in his office very 23 early on the Wednesday morning, because -- well we met 24 very early on Wednesday morning in Mr. Taman's office. 25 Mr. Taman, I think Elizabeth, I was
661 certainly there, Julie Jai; who else, if anyone, I can't 2 recall. 3 Q: Okay. And tell us about the meeting. 4 What was the discussion about, what decisions if any were 5 taken. 6 A: Well, generally, it was about the, 7 you know, the incident, about the occupation of the Park 8 and what was going to be done about it and -- and all of 9 that sort of thing. 10 And I suppose there would have been some 11 sort of briefing at that time of Mr. Taman. As to 12 decisions taken and all -- all -- I'm sure no decisions 13 were taken. Again, I have a vague recollection of Mr. 14 Taman not being -- wanting to explore possibilities other 15 than taking precipitous action to obtain an injunction. 16 And, you know, so as the meeting broke up, 17 my recollection, again it's -- it's foggy and I -- and I 18 don't mean to speak authoritatively on these things, but 19 my recollection is that he wanted to talk to others, he 20 wanted to explore the possibilities, and perhaps, in my 21 words, take a step back and -- and, you know, explore 22 other alternatives. 23 Q: That a sense that you got of 24 Mr. Taman's -- 25 A: That's a -- that's a very good way to
671 put it. That's just a sense that I got. I, you know, I 2 can't say that Mr. Taman said that's what I'm going to 3 do. But, that's -- that's an impression that -- that I 4 have as to -- as to how that -- that early meeting ended. 5 Q: Did you maintain notes of these 6 meetings or any notes? 7 A: No. No. 8 Q: Or any meetings rather? 9 A: No. 10 Q: No. There were a number of e-mails 11 that were circulated following the meeting of the 6th by 12 Ms. Jai. 13 Did you receive those e-mails? 14 A: No. I was -- I was still in my 15 Luddite phase and I didn't have a computer. 16 Q: I understand you're now computer 17 literate though. 18 A: Well, I wouldn't go that far. 19 Q: Okay. All right. We also know, sir, 20 that there is an exhibit marked as P-549; it's Inquiry 21 Document 1011745. It's not in the package in front of 22 you unfortunately. 23 But, it is a minister's briefing form that 24 is dated September the 5th, titled, Criminal and Civil 25 Proceedings to Terminate the Occupation of Ipperwash
681 Provincial Park by the Stoney Pointers. 2 And there was a hand -- handwritten note 3 at page 1 by Julie Jai, and we'll come to this in another 4 document of hers, which stated that: 5 "Tim: No case for ex parte because no 6 urgency." 7 And do you recall, perhaps, formulating 8 that impression or giving that advice or making those -- 9 or making those comments? 10 A: You know, specifically remembering 11 comments that I made at any particular time and so forth, 12 I don't. But, my recollection is that it seemed to me 13 that this was not -- certainly not a good case for an ex 14 parte injunction, as I understood the circumstances. 15 It was certainly a case for an injunction, 16 but that a Judge would probably -- probably not allow us 17 to use the ex parte rule, right. 18 Q: Now, we've -- we've told by many, and 19 I have a tendency to believe that, that you are the quote 20 "reigning expert" insofar as the injunctions and the 21 obtaining of injunctions. 22 You've just mentioned that, initially, it 23 was your view that this was not an instance where an ex 24 parte injunction would be appropriate. 25 Perhaps you might just explain that for
691 us, if you would. 2 A: Well, as I say, it was certainly a 3 case for an injunction, but I think that, you know, the - 4 - the likely result, if we were to proceed under the ex 5 parte rule, would be that the Judge would either dismiss 6 it, be -- you know, on the basis that this is not a case 7 for an ex parte injunction or more likely, far more 8 likely, would simply adjourn so that we would serve -- so 9 that we could serve. 10 The net result being, that proceeding 11 under the ex parte rule would take us more time rather 12 than less. It seemed to me that the appropriate course 13 to follow, this is now Thurs -- no, Wednesday. 14 The appropriate course would be to prepare 15 material that day, serve it tomorrow, Thursday; be in 16 Court Friday and seek an abridgment of the three (3) day 17 notice period. 18 And, you know, in the -- and the end 19 result it seemed to me that if the object was to obtain 20 an order at an early date that -- that is, you know, 21 that's -- that's we ought to do. 22 Q: Okay. 23 A: Then if we follow the other thing, we 24 may find ourselves delayed. Although I should say, it 25 was never my view that there was anything wrong, you
701 know. There was nothing reprehensible about proceeding 2 under the ex parte rule. 3 It's -- and, you know, if the Government 4 understood the risks involved in that, you know, it could 5 do that. 6 Q: Sir, as you're speaking, it occurs to 7 me that there may be those lay people who would be either 8 reading the transcript or watching this on the webcast or 9 -- in subsequent broadcasts -- 10 A: Watching us on the what? 11 Q: Yes. Watching you, sir, on the 12 webcast, that might not be completely familiar with the 13 terms that -- that we've been using. 14 I note that none of the lawyers in the 15 room here seem perplexed by it. I do at oftentimes. 16 A: Hmm hmm. 17 Q: And perhaps you might take a moment 18 just to, if you would, please, just to explain some of 19 those terms and phrases. 20 A: Well, in trying to do so I'm likely 21 to miss something important, but. 22 Q: Just briefly, if you would. 23 A: Yes. You normally, in litigation you 24 -- if you are going to bring a Motion seeking an order 25 against an adversary, you must give notice. You must
711 serve paper on the other side and the rules provided 2 that, in the normal case, I think it's different now, I 3 think the period has been expanded, but at that time I 4 think the -- the rule was to the effect that it was -- 5 three (3) days' notice was to be given. 6 However, there was another rule in -- 7 which could be followed in order to obtain an injunction 8 in which notice was not required if you met certain 9 tests. 10 And I think the tests were something like 11 notice is either unnecessary or impracticable or 12 circumstances were such that the delay necessary to 13 effect service would -- might entail serious 14 consequences. 15 So that's -- that's -- when I say the ex 16 parte rule, that's what the -- the without notice rule, 17 that's the one I'm referring to. 18 Q: All right. I appreciate that, sir. 19 Commissioner, this might be an appropriate time to take 20 the morning break. 21 I intend to move now to the 6th of 22 September. 23 COMMISSIONER SIDNEY LINDEN: This is a 24 good time to take a break now. Thank you, thank you very 25 much.
721 THE REGISTRAR: This Inquiry will recess 2 for fifteen (15) minutes. 3 4 --- Upon recessing at 10:27 a.m. 5 --- Upon resuming at 10:48 a.m. 6 7 THE REGISTRAR: This Inquiry is now 8 resumed. Please be seated. 9 10 CONTINUED BY MR. DONALD WORME: 11 Q: Mr. McCabe, on the morning of the 6th 12 you had indicated that the night previous, to Tuesday 13 night previous, that you had were involved and engaged 14 with Ms. Christie, perhaps with others in the preparation 15 of a memo following the Interministerial Committee of 16 September the 5th, 1995? 17 A: Yes, I -- I don't recall any 18 engagement with anyone other than Elizabeth, although I 19 do know that Scott Hutchison was to produce the part on 20 criminal -- the Criminal Code. 21 Q: Right. Thank you for that. And 22 you've mentioned as well that, prior to the 23 Interministerial Committee Meeting on September the 6th - 24 - incidentally I understand you attended that meeting? 25 A: Yes.
731 Q: But prior to that meeting there were 2 other matters that you had to attend to and perhaps it 3 might be easiest if I just asked you to give us a 4 chronology of -- of what it is that you can recall or 5 have been informed of by virtue of reviewing notes and -- 6 A: Right. 7 Q: -- and other material? 8 A: Well, on September the 6th there -- 9 there was the -- the early morning meeting in Mr. Taman's 10 office. The next thing that I can recall is the meeting 11 of the Interministerial Committee itself. 12 During the course of the -- of the 13 Interministerial Meeting I -- I would have thought that I 14 had received, sort of, independent recollection, 15 independent of the minutes, was that that's where I 16 learned that I was to be, you know, in court forthwith, 17 you know, very soon. 18 I see though on the -- the minutes it 19 indicates that an -- an injunction will be sought as soon 20 as possible so there might be a -- there might be a -- a 21 distinction there. 22 After the Interministerial Committee 23 Meeting I can recall walking north on Bay Street with 24 Elizabeth and with Ron Fox. Of course we had -- the 25 three (3) of us had been in attendance at the meeting at
741 the ONAS offices which were at the Atrium at the corner 2 of Bay and Dundas. 3 We're now walking north on Bay Street to 4 around Bay and Gerard where 720 Bay -- our offices are 5 located and my vague recollection of discussions with -- 6 with -- with Ron Fox was to the effect that I needed 7 three (3) things from the Ontario Provincial Police. 8 First and foremost of course was the 9 attendance of an officer knowledgeable about the events 10 to appear in court whenever that was -- was to occur and 11 to give -- to give testimony and to explain, you know, 12 fully what had -- what -- what had occurred and what was 13 occurring. 14 This -- another thing was a list if they 15 had it of the people who were in the Park. This was 16 simply for purposes of the title of proceedings when we 17 were to proceed and the -- the third thing was about 18 service and to -- to be -- been making -- begin making 19 inquiries about the possibility of having the OPP 20 actually serve the documents for -- for this injunction 21 motion. 22 Q: All right. Now let me just take you 23 back then. Firstly, with respect to the meeting, the -- 24 the meeting prior to the Interministerial Committee on 25 the 6th of September, 1995 with Mr. Taman and others, do
751 you have any recollection as to Mr. Taman's position 2 relative to the obtaining of an injunction, firstly? 3 A: At the meeting that morning? 4 Q: Yes. 5 A: Well, yes, as I -- I think I 6 mentioned earlier today, my impression that I, you know, 7 have today as a -- from that meeting was to the effect 8 that Mr. Taman wanted to explore other options. He 9 wanted to discuss, you know, or -- or think about or, you 10 know, consider things that might be possible rather than 11 proceeding post-haste in some way to obtain an 12 injunction. 13 Q: All right. 14 A: I -- you know, I -- that may be 15 distorted in some way through the -- the ravages of -- of 16 time and old age, but that's -- that's my recollection. 17 Q: You'd mentioned earlier that there 18 was some sense that injunctions could be used for the 19 purposes perhaps of -- of dealing with blockades without 20 actually having to -- to enforce them. 21 A: Yes. 22 Q: And do you recall whether there was 23 any discussion along those lines at all? 24 A: Well, I don't actually. I -- I 25 wouldn't doubt for a moment that there was such
761 discussion however. 2 Q: Okay. In terms again of Mr. Taman's 3 position, you've indicated you don't recall whether he 4 had a particular position other than your -- your general 5 sense that he had wanted things to sort of slow down so 6 that things could be talked about, if I can put it that 7 way. 8 A: Well, more that he wanted to explore 9 that possibility, I think. 10 Q: Okay. Did you take any notes of that 11 meeting? I'm sorry if I may have asked you this already. 12 A: No, I didn't. 13 Q: All right. I take it your next 14 meeting then would have been the Interministerial 15 Committee meeting? 16 A: Yes. 17 Q: And can you tell us anything about 18 your recollections of that meeting, about the personnel 19 who were there? 20 A: Well, you know, I -- the -- a far 21 more accurate and reliable summary of the personnel would 22 be the minutes of the meeting than my recollection. 23 You know, there were a number of people 24 there. There was the usual cast of characters who 25 gathered for these things from ONAS and from the Ministry
771 of -- of Natural Resources. 2 There were people from other ministries, 3 there was Deb Hutton from the Premier's office and -- and 4 there was Ron Fox and there was undoubtedly, you know, 5 political staff from the Ministry of Natural Resources if 6 not other organizations within the Government. 7 You know, it was -- it was a well attended 8 meeting. Most gratifying. 9 Q: Do you have any recollection about 10 the positions that might have been taken and specifically 11 the two (2) individuals you mention, Ms. Hutton and Mr. 12 Fox? 13 A: You know, I've read notes and I've 14 read minutes and so forth, so where my recollection ends 15 and -- and that reading begins, I -- you know, I -- I'm 16 not really in a position to say. 17 You know, there was -- there was, you 18 know, there was a certain, you know, sense of -- of, you 19 know, excitement you might say, you know, in the -- in 20 the air. But that always happened when -- when one of 21 these incidents was -- was underway. 22 Q: Okay. So the excitement in the air 23 is consistent with other emergency meetings that you'd 24 attended? 25 A: Yes.
781 Q: It's an emergency. 2 A: That's right. 3 Q: All right. You mentioned that there 4 were some political staff there. Given your previous 5 experience in attending this -- these types of meetings 6 or its predecessor organization or committee, did it 7 strike you as -- as typical that there might be political 8 people at these meetings? 9 A: Yes. 10 Q: During the course of that 11 Interministeral Committee meeting, Mr. McCabe, do you 12 have any recollection of any discussions that there has 13 now been an allegation, perhaps, of a burial site that 14 might underpin the reason for the occupation of the Park? 15 A: I don't have a, you know, a -- a 16 specific recollection of it being said, but I think that, 17 in all likelihood in the course of Ron Fox's update from 18 the OPP, the information that later came out in evidence 19 at the, you know, at the hearing the next morning of the 20 injunction, would have been reported by Ron Fox. 21 Q: Okay. Assuming that that information 22 was provided at that meeting, did that or would that have 23 made any difference insofar as the legal task ahead of 24 you? 25 A: No. Certainly not -- it wouldn't
791 have affected, in my view, the -- the appropriateness or 2 otherwise of -- of the granting of an injunction. 3 Q: At -- at the end of the meeting, 4 you've indicated you came away there with the task of 5 obtaining an injunction. 6 A: That, you know, my recollection was 7 that I had my, you know, marching orders more or less, 8 but you know, again, that may not be entirely accurate. 9 As I see it says, "as soon as possible," 10 and that suggests, I suppose, that we're waiting for 11 some, you know, word from on high. 12 Q: Let's maybe take a look at that Tab 13 number 18 in that book of documents in front of you. 14 Those are the meeting notes of -- it actually contains 15 the meeting notes of both September the 5th and September 16 the 6th of the Interministerial Committee. 17 But if you go six (6) pages in, and that 18 is the seventh page on -- on that particular tab -- 19 A: I'm sorry, this is Tab 18? 20 Q: Tab 18, and it is Exhibit P-509. The 21 meeting notes of September the 6th commence on that 22 seventh page in. 23 Are you with me on that? 24 A: Yes. 25 Q: And I note, first of all, with
801 respect to the attendance, you are in attendance or noted 2 as in attendance? 3 A: Yes. 4 Q: And having opportunity to review 5 these notes, did that assist you at all in terms of your 6 own recollection of this meeting? 7 8 (BRIEF PAUSE) 9 10 A: Not really. I -- I don't think it 11 brings to memory anything that happened in particular, 12 but it's certainly consistent with, you know, the 13 impression that I have today as to what was discussed at 14 that meeting. 15 Q: Right. And if we turn to page 2, 16 under Minister's Directives, the first bullet, MNR: 17 "The Minister wants to act as quickly 18 as possible to avoid further damage and 19 to curtail any escalation of the 20 situation." 21 That's consistent with what you understood 22 your instructions were at the end of the day? 23 A: Yes. 24 Q: Second bullet: 25 "MAG, the Minister agrees that
811 application will be made for an 2 injunction." 3 And I take it that that particularizes the 4 instructions? 5 A: Yes. 6 Q: Okay. And the next bullet, "SGC"... 7 8 (BRIEF PAUSE) 9 10 Q: Okay. 11 "As a matter of protocol, the SGC 12 [that's Solicitor General] does not 13 involve itself in the day to day 14 operations of OPP. The OPP will 15 exercise its discretion regarding how 16 to proceed in removing the Stoney 17 Pointers from the Park and the laying 18 of appropriate charges." 19 A: Yes. 20 Q: Do you recall any discussion on that 21 point, in particular, Mr. McCabe? 22 A: Not in any detail. I'm sure it took 23 place and, you know, I see from these -- these minutes 24 that it did, yes. 25 Q: All right. The next point,
821 communications and so forth, was that anything that was 2 of concern to you? 3 Do you -- is that something that you might 4 have -- 5 A: No. 6 Q: -- paid attention to? 7 A: No, not really. I mean, at meetings 8 of this and other committees and groups that meet within 9 the Government, this issue of communications is always of 10 immense concern to people in attendance, but normally not 11 to me. 12 Q: All right. And if we turn to page 3, 13 under "next steps," Tab number 5, I take it that's what 14 you'd referred to earlier. 15 The first bullet says: 16 "It was agreed that an injunction 17 should be brought ASAP." 18 A: Yes. 19 Q: And then the note following that: 20 "Following the meeting cabinet directed 21 MAG lawyers to apply immediately for an 22 ex parte injunction. Tim McCabe, 23 Elizabeth Christie and Leith Hunter are 24 preparing the application and compiling 25 the supporting documentation."
831 Is that something that assists you at all, 2 first of all, in recalling that those instructions might 3 have been received directly from Cabinet? 4 A: No, I don't recall receiving 5 instructions, actually. Elizabeth, actually, has told me 6 more recently as to her recollection of what happened 7 after the meeting and so forth, but I'm sure the 8 Commission doesn't want me to repeat what Elizabeth has 9 told me. 10 Q: In fact, she's told us, sir, so -- 11 A: Right. 12 Q: -- thank you for that. And I take it 13 from -- from that comment, then, that you don't have an 14 independent recollection, either of receiving specific 15 instructions of any sort? 16 A: That's right. But at some point I 17 was made aware of the fact that we needed to, you know, 18 proceed immediately. 19 Q: Okay. 20 A: And my attention for the rest of the 21 day on September the 6th was taken up with that task. 22 Q: We understand that there may have 23 been a further meeting with Mr. Taman following the 24 Interministerial Committee meeting, perhaps by yourself 25 in attendance.
841 Do you have any recollection of that? 2 A: No, I'm quite sure I was not in 3 attendance at a further meeting with Mr. Taman. 4 Q: We've had testimony, Mr. McCabe, that 5 Mr. Taman, it was stated, advised Ms. Christie that the 6 injunction should be brought immediately and that perhaps 7 efforts would be made to seek that in Toronto, so that it 8 could be done, virtually, immediately. 9 Do you have any recollection of that at 10 all? 11 A: I don't have a recollection of that 12 other than what I have been told. 13 Q: And just going back to the meeting 14 very briefly, do you recall whether at the meeting there 15 was any suggestion of what the demands were of the people 16 in occupation of the Park? 17 A: No, quite the contrary. 18 Q: Okay. I take it from that you have a 19 recollection that there was something said with respect 20 to demands of the people in occupation? 21 A: Well, I think the question was 22 probably asked and -- and discussed and I remember being, 23 you know, taken with the idea that there was an 24 occupation of the Park without -- without demands having 25 been made.
851 Q: Okay. And given your previous 2 experience with those sorts of things what -- what did 3 you make of that? 4 A: Well, you know, I can't recall 5 precisely what I made of it, but -- but it probably 6 crossed my mind that this was -- that this was unusual. 7 You know, for example the -- the Beardmore circumstance, 8 the demand was that the construction project not proceed. 9 Q: All right. We've had and I -- and I 10 can take you to the documents if it's -- if it's 11 necessary Mr. McCabe, we've looked at them earlier. 12 You've had a chance to review them and you are reported 13 at various times to be advising that there was no cause - 14 - pardon me, that -- that this perhaps was not a 15 situation where an ex parte injunction might be obtained? 16 A: Well, I -- I don't think I would have 17 discounted the possibility altogether, but would have 18 taken a position I think that, you know, in the 19 circumstances the -- in order to deal with this 20 expeditiously the best idea, as I said earlier, was -- 21 it's now Wednesday, if we serve tomorrow, be in court on 22 Friday, seek an abridgement on Friday; that is our most 23 expeditious course. 24 Q: Okay. And the reasons why you 25 thought an ex parte injunction might not be obtainable
861 were for what reasons? 2 A: Well, I think I -- I -- you know I 3 was concerned about the -- about whether we could meet 4 the test and that I could well envision a judge saying 5 something like, Well, Mr. McCabe, there's virtually no 6 one in this Park, apart from the occupiers. It's after 7 Labour Day, there are no campers. 8 There -- there are -- this may very well 9 be a case for an injunction, but there's no reason not to 10 serve the people in the Park and to proceed in the -- in 11 the ordinary, orderly course. 12 Q: All right. And, sir, ultimately who 13 would -- who would make the call as to whether or not to 14 proceed on an ex parte basis or under the ex parte rules 15 or -- or the other rules that were available for 16 obtaining this type of relief? 17 A: In the ordinary course, you know, it 18 may be that the only -- the only comparator that occurs 19 to me is the Beardmore circumstance and -- and, you know, 20 and I can't remember exactly who said, No, you're going 21 to be in court on -- on Tuesday, you know, whose idea 22 that was. 23 In this particular case I don't think that 24 it was so much that there was discussion of the 25 advisability of proceeding under the ex parte rule or
871 not, but once it was said to me, probably through 2 Elizabeth who had received it elsewhere, that we were to 3 be in court tomorrow if not tonight, it was very clear 4 what needed to be done, and that is to proceed under the 5 ex parte rule, but to attempt to serve, if possible. 6 Q: And who made that call? 7 A: I -- I don't know who made the call 8 to be in court the next day and I don't know whether the 9 person who made the call or imparted the instruction, 10 said, Be in Court the next day, and by the way, follow 11 the ex parte rule, or whether it was just, Be in the 12 Court the next day. 13 To me it would have made no difference 14 whatever, if I'm to be in Court the next day, there's 15 only way to do it. 16 Q: All right. And that's the -- and 17 that's the manner in which you proceeded? 18 A: Yes. 19 Q: All right. 20 21 (BRIEF PAUSE) 22 23 Q: And so if we look at Tab 21, that is 24 Exhibit 653 in these proceedings, it is the memo from 25 Julie Jai to Yan Lazor dated Wednesday September the 6th,
881 '95, the time of 12:54. 2 She notes, first of all that: 3 "MAG staff and I met with Larry Taman 4 this morning and Larry and I briefly 5 met with the Minister to discuss the 6 Ipperwash situation." 7 Do you see that? 8 A: Yes. 9 Q: And it goes down, if you go to the 10 bottom of the page under number 2, the Injunction. 11 And the first line: 12 "Tim McCabe advised we do not have 13 grounds for an ex parte injunction. 14 However, we will take steps to have an 15 injunction heard ASAP. Could possibly 16 get before a Judge in Sarnia as early 17 as this Friday." 18 A: Yes. 19 Q: Now, given that this is Wednesday 20 afternoon, and to get into Court by Friday, I think from 21 -- what I take from your earlier answer, the only way to 22 get there would be through the ex parte provisions? 23 A: I think, you know, my surmise from 24 this... 25
891 (BRIEF PAUSE) 2 3 A: So, this is at 12:54 p.m. My surmise 4 from this is that what Julie is talking about was my 5 earlier suggestion that what we needed to do was -- was 6 serve tomorrow, Thursday, and be in Court on Friday. 7 Q: All right. 8 A: That this is -- this is before the, 9 No, be in Court tomorrow, viewpoint is expressed. 10 Q: And if you just carry on with that 11 line, it then reads: 12 "Tim and others are working on the 13 injunction application posthaste." 14 A: Hmm hmm. 15 Q: And that is what you are telling us 16 that you -- 17 A: Yes. 18 Q: -- set off to do? 19 A: You know, I -- it -- you know, 20 piecing this together now, I -- you know, I don't -- I 21 can't claim that I have perfect recall of exactly the way 22 events unfolded, but I think what's going on here is 23 we're working on injunction application posthaste with 24 the idea of having it done today, so it can be served 25 tomorrow; at this stage, that's what we're attempting to
901 do. 2 Q: Okay. Aside from your conversation 3 with Mr. Fox following the meeting as you're walking back 4 towards your office, you've indicated to us that you were 5 seeking those three (3) items which you've already told 6 us about -- 7 A: Yes. 8 Q: -- from the police. What was your 9 next -- what happened next, I guess? 10 A: You know, I -- I'm reconstructing 11 this as -- as best I can. I went back to the office, 12 obviously, and no doubt settled down to work posthaste on 13 the -- as it says here, on -- on these injunction 14 materials, probably at that stage with the idea of 15 proceeding in this leisurely way of -- of only doing it 16 today and serving it tomorrow and proceeding in Court on 17 -- on -- appearing in Court on Friday. 18 But, that at some point, Elizabeth 19 probably came in breathlessly saying, we have to be in 20 Court tomorrow or sooner. 21 And, thereafter, just adjusted the time 22 table slightly. 23 Q: I see. Did she -- no longer at the 24 leisurely pace? 25 A: That's right.
911 Q: Did she advise you that she had 2 attempted to make contact with or did, in fact, make 3 contact with the Registrar in Toronto with a view to 4 getting this matter before a judge in Toronto? 5 A: If she did, I'd forgotten that until 6 very recently when she says that that had occurred. 7 Q: And as a result of the abbreviated 8 time lines you were now under, do you recall making some 9 phone calls to the OPP in Forest? 10 A: Yes, I have a general recollection of 11 talking to officers on more than one occasion during the 12 latter part of that -- of that day. You know, for the 13 most part, apart from the transcripts and so forth that - 14 - that we have, I wouldn't have been able to tell you 15 very much about, you know, the content of those 16 conversations except that I was concerned about the three 17 (3) things that I mentioned earlier. 18 Q: Do you recall having a conversation 19 with Inspector Carson of the Ontario Provincial Police? 20 A: Well apart from transcripts I 21 couldn't have told -- told you who the officers were, no. 22 Q: Okay. If I can just refer your 23 attention to Tab Number 20, it's Exhibit P-426. And it's 24 an excerpt of that -- of that exhibit. On page 63 of -- 25 of that document at 4:47 hours, you see the notation
921 there: 2 "Inspector Carson advised that Tim 3 McCabe, Crown Law Office called him 4 enquiring about his availability to 5 give evidence tomorrow in Sarnia court, 6 subject to approval of bosses or 7 whether someone else can go." 8 MS. KIM TWOHIG: 14:47. 9 10 CONTINUED BY MR. DONALD WORME: 11 Q: Pardon me, 14:47. I misspoke. 12 A: Yes. Yes. 13 Q: And that's consistent with a 14 telephone call that you would have made? 15 A: Yes. 16 Q: I wonder if we might be able to play 17 that? 18 19 (BRIEF PAUSE) 20 21 Q: Time on the call is 14:36:54. 22 COMMISSIONER SIDNEY LINDEN: This is from 23 the scribe notes? 24 MR. DONALD WORME: It's in P-444(B) at 25 Tab 39 in the document in front of you.
931 CONTINUED BY MR. DONALD WORME: 2 Q: And, Mr. McCabe, it would be at your 3 Tab 22. 4 5 (AUDIOTAPE PLAYING - TRANSCRIPT BELOW) 6 7 MCLEAN: Command Post Sgt MCLEAN. 8 MCCABE: Oh is Inspector CARSON there? 9 MCLEAN: Ah he's in a closed door meeting right at 10 the moment um may can I take a message 11 err. 12 MCCABE: Well, it's Tim MCCABE at the Ministry of 13 the Attorney General ah I was talking to 14 Ron FOX ah rec ah recently about ah 15 possible legal proceedings in connection 16 with the ah. 17 MCLEAN: Uhum. 18 MCCABE: With the ah. 19 MCLEAN: I can ah certainly someone ah like 20 yourself I could I just put you on hold. 21 MCCABE: Sure. 22 MCLEAN: I'll knock on the door okay. 23 MCCABE: Sure. 24 MCLEAN: I'm sorry your name was Tim. 25 MCCABE: Tim MCCABE.
941 MCLEAN: Okay I want to interrupt can you hold on a 2 second please. 3 MCCABE: All right. 4 (pause) 5 6 CONTINUED BY MR. DONALD WORME: 7 Q: Just during -- during this brief 8 break in the tape, Mr. McCabe, you acknowledge that is 9 your voice? 10 A: Yes. Okay. I see from the 11 transcript that I'm having a great deal of difficulty 12 with the English language at that point. 13 14 (BRIEF PAUSE) 15 16 Q: And again, during this pause, Mr. 17 McCabe, do you have a recollection that this call would 18 have been made at around 2:30, 2:36? 19 A: I don't, no. 20 21 (AUDIOTAPE PLAYING - TRANSCRIPT BELOW) 22 23 CARSON: Inspector CARSON. 24 MCCABE: Oh hello Inspector it's Tim MCCABE at the 25 Attorney Generals office in Toronto.
951 CARSON: Yes Tim. 2 MCCABE: I ah I I I think you probably have heard 3 from Ron FOX by now. 4 CARSON: I have. 5 MCCABE: Um about the fact that I'd probably be 6 calling you. 7 CARSON: Right. 8 MCCABE: Um well the latest here is I'll be 9 interested ah in due course to hear ah ah 10 what ah what what the latest on the scene 11 is but but I expect to get confirmed 12 instructions at later on this afternoon to 13 seek an ex parte interlock Tory 14 injunction. 15 CARSON: Okay. 16 MCCABE: Ah tomorrow in Sarnia. 17 CARSON: Okay. 18 MCCABE: Ah and I'm told that ah the Court is 19 available 9:00 a.m. tomorrow in Sarnia. 20 CARSON: Okay. 21 MCCABE: Uh so uh two (2) things ah first of all I 22 I think it would be ah the best way of 23 approaching this rather than try to 24 provide your affidavit to the court would 25 be to have you in attendance and
961 CARSON: Uh huh. 2 MCCABE: ah just go through a series of questions 3 as to the circumstance as it exists. 4 CARSON: Right. 5 MCCABE: And ah and ah you know mostly just factual 6 um you know ah ah factual ah narrative. 7 CARSON: Right. 8 MCCABE: About the circumstances that have 9 occurred. 10 CARSON: Okay. 11 MCCABE: And then ah ah and and and you know we'll 12 talk to you about this before we get in 13 get into it but a little bit of ah your 14 view of the situation and and so forth and 15 ah 16 CARSON: Okay. 17 MCCABE: We can talk about that later but I so the 18 first question is would you be available 19 to ah to to meet with me I guess between 20 eight (8) and nine (9) tomorrow in Sarnia 21 and then ah and then attend in court. 22 CARSON: Um well ah right right now ah Ron has a 23 shared that with me and and he Chief 24 Superintendent my boss ah is ah ah we're 25 just discussing that as to if I'm the most
971 appropriate person to supply that 2 information or not. 3 MCCABE: Right. 4 CARSON: And ah possibly I am but possibly somebody 5 else maybe able to do that from here 6 besides myself. 7 MCCABE: Right. 8 CARSON: Ah that that can give you the the very 9 same information so it's a matter of who's 10 the most appropriate one. 11 MCCABE: Right. 12 CARSON: Ah so I haven't you know got a handle on 13 that yet. 14 MCCABE: Okay. 15 CARSON: Ah you know we went to help out in anyway 16 we can like don't get me wrong here. 17 MCCABE: Sure. 18 CARSON: It's just a matter of of doing it right 19 the first time. 20 MCCABE: Yep. 21 CARSON: Okay. 22 MCCABE: All right good but as so either you or 23 someone else from from the from the ah 24 Command Post there would be able ah to 25 attend.
981 CARSON: Right probably my number two (2) guy I 2 suspect I I have a guy who's who is every 3 bit as up up to speed on on the issues as 4 I am. 5 MCCABE: Right okay that's that. The other thing 6 is ah Ron tells me that you do have a list 7 of ah of names of ah people who are 8 occupying the park. 9 CARSON: Well some of them yes. 10 MCCABE: Ah would it be possible for you to give me 11 fax me a copy of that list I I'm just 12 thinking here in terms of the ah you know 13 the title of proceedings here the the 14 names of the defendants that we would be 15 listing. 16 CARSON: Okay okay ah yeah that shouldn't be a 17 problem we can probably ah draft that up 18 very quickly. Okay ah what's your fax 19 number. 20 MCCABE: four (4) one (1) six (6). 21 CARSON: Yes. 22 MCCABE: Um three (3) two (2) six (6) 23 CARSON: Right. 24 MCCABE: four (4) one (1) eight (8) one (1). 25 CARSON Okay okay and that's in the AG's office.
991 MCCABE: Yep ah Crown Law Office Civil Attorney 2 Generals Office and if you just send it to 3 ah to my attention Tim MCCABE. 4 CARSON: Okay yeah that shouldn't we (u/i) our our 5 investigators have probably got a lot of 6 that all put together anyway. 7 MCCABE: Right. 8 CARSON: Okay. 9 MCCABE: What what is you're your appraisal as I 10 say I think what I'll what I'll do is 11 either is later on this afternoon talk you 12 know if I may you're going to be there are 13 you. 14 CARSON: Yes. 15 MCCABE: Speak to you or or whoever is going to be 16 the person who would be giving this 17 evidence. 18 CARSON: Right. 19 MCCABE: In greater detail. 20 CARSON: Yes. 21 MCCABE: But we'll be seeking this ex parte as I 22 say which means without notice and in 23 those circumstances ah it's it's important 24 to be able to show some kind of urgency. 25 CARSON: Yes.
1001 MCCABE: In order to demonstrate that if the order 2 is not granted or if the if the time 3 necessary to give the period of notice ah 4 that you know serious consequences could 5 occur. 6 CARSON: Right. 7 MCCABE: Um ah we we there were I think the thing 8 that has gotten people particularly 9 concerned here is the reports of gunfire 10 last night. 11 CARSON: Yes. 12 MCCABE: And and the fire. 13 CARSON: Yes. 14 MCCABE: And the alcohol and those sorts of things. 15 Um are I mean ah does that worry you? 16 CARSON: Yes. 17 MCCABE: Ah well. 18 CARSON There's ah there's ah. 19 MCCABE: That's the answer to the question ah 20 CARSON: Yeah 21 MCCABE: You know that's the point. 22 CARSON: Okay but ah I say that ah but I have to 23 qualify that somewhat. 24 MCCABE: Yeah. 25 CARSON: Ah the fire was set up as an ambush okay
1011 our guys got ambushed ah to down and deal 2 with the fire on the roadway and got ah 3 bombarded with rocks which caused damage 4 to windshields the three (3) vehicles and 5 ah fortunately no no officers were hurt. 6 MCCABE: Right. 7 CARSON: Ah the gunfire was back ah in the ah in 8 the bush. I have I have to be frank with 9 you we have not ah ah had a weapon pointed 10 at us ah we haven't seen one fired in any 11 direction and there is no reason to 12 believe that the firing that we heard last 13 night ah was anything more that audio for 14 our benefit. 15 MCCABE: I see. 16 CARSON: Okay so so when when you hear that there's 17 gunfire ah you can't really use that while 18 you you I mean it it's a significant 19 factor from from a safety point of view 20 from my perspective in that I know that 21 obviously there's weaponry in there. 22 MCCABE: Okay. 23 CARSON: But but to say from a safety point of view 24 that it's been ah that our officers have 25 been threatened with weapons I can't say
1021 that. 2 MCCABE: Right. 3 CARSON: Okay. 4 MCCABE: Right but I I suppose from a public safety 5 point of view if you take the view that 6 the occupiers are themselves members of 7 the public ah you know there's there 8 there's this kind of stuff going on. 9 CARSON: Well, there's no yeah ah absolutely like 10 there is no doubt about it I mean it's you 11 know it's ah certainly not something 12 that's going to give you a fuzzy warm 13 feeling. 14 MCCABE: Yeah. 15 CARSON: Yeah. 16 MCCABE: Okay. 17 CARSON: Yeah, I mean (u/i) the fact that there is 18 gunfire going on is a is a concern and ah 19 particularly when it takes and it happens 20 in conjunction with other events I mean 21 there is a subtle message there I guess as 22 I was saying ah. 23 MCCABE: Yep. 24 CARSON: You know whether you see it or not but you 25 know if if a judge asked me specifically
1031 did we see gunfire where did we see 2 weapons or was any weapons pointed as us 3 ah or were we ah ah ah felt our safety was 4 in jeopardy because of these weapons we'd 5 have to say we have not been ah directly 6 threatened. I mean. 7 MCCABE: Right. 8 CARSON: Those are the subtleties that are used to 9 you know ah ah as a tactical approach to 10 us. 11 MCCABE: Yeah. 12 CARSON: Yeah. 13 MCCABE: Right. 14 CARSON Yeah. 15 MCCABE: Well um if he if the judge puts it to you 16 that ah you as a professional police 17 officer do you do you find do you think ah 18 this injunctions should be grated on this 19 urgent basis ah ah you know what's your 20 answer to that. 21 CARSON: Yes absolutely. 22 MCCABE: Yeah all right. 23 CARSON: Okay (u/i) I mean they're just as long as 24 it's understood in the big picture not in 25 isolation okay cause I don't want people
1041 to think or or that your affidavit to 2 suggest that that we have been fired upon 3 or any of those kinds of things. 4 MCCABE: Sure. 5 CARSON: Because you know 6 MCCABE: (u/i) well the information about that will 7 come from you or from the officers. 8 CARSON: Okay okay. 9 MCCABE: You know we'll we'll just and whoever it 10 is should be prepared to give something of 11 a narrative. 12 CARSON: Yes. 13 MCCABE: Ah you know they won't be they won't 14 really be any leading questions it'll be 15 sort of after identifying yourself ah tell 16 the story of 17 CARSON: Okay. 18 MCCABE: what's happening there. 19 CARSON: Sure sure and and that's no problem we can 20 certainly do that. 21 MCCABE: Yep. 22 CARSON: Okay. 23 MCCABE: All right. 24 CARSON: Okay. 25 MCCABE: Well I will
1051 CARSON: what what number can I get back to you at? 2 MCCABE: I'm at ah I'm at four (4) one (1) six (6) 3 CARSON: Right. 4 MCCABE: three (3) two (2) six (6) 5 CARSON: Yes. 6 MCCABE: Four (4) one (1) two (2) seven (7) and you 7 have my fax number there and ah 8 CARSON: Yeah. 9 MCCABE: and ah if you could get that list here ah. 10 CARSON: Okay we'll we'll get working right on it. 11 MCCABE: Okay. 12 CARSON Okay. 13 MCCABE: Right oh. 14 CARSON: Thank you. 15 MCCABE: Bye bye. 16 CARSON Bye. 17 End of conversation 18 19 CONTINUED BY MR. DOLAND WORME: 20 Q: As I say -- as I say, Mr. McCabe, 21 this is an Exhibit within these proceedings, and perhaps 22 I'll just ask you a few questions arising out of that. 23 Firstly, with respect to the page that is 24 numbered at the bottom 268. 25 Right in the middle of the page there's
1061 your response: 2 "Well, the latest here is, I'll be 3 interested in all due course to hear 4 the latest on the scene, but I expect 5 to get confirmed instructions later on 6 this afternoon." 7 I take it that at that point in time, 8 given your comment that you didn't have specific 9 instructions to seek an ex parte interlocutory 10 injunction? 11 A: It would appear so. It would appear 12 that I am waiting for something else to -- to happen. As 13 I say, I don't, you know, recall that and I don't recall 14 the receipt of further instructions later in -- later in 15 the afternoon. 16 Q: And that was the next question I was 17 going to ask you. And perhaps, just in looking at that, 18 I take it that that is a spelling error. It says, "ex 19 parte interlocutory injunction". 20 There isn't any such thing, as far as you 21 know, is there? 22 A: Well that's for the Commissioner to 23 decide. No, I'm sure I'm referring to an interlocutory 24 injunction. 25 Q: Thank you.
1071 COMMISSIONER SIDNEY LINDEN: I think 2 we've already changed that in the transcript, haven't we? 3 MR. DERRY MILLAR: Yes. 4 5 CONTINUED BY MR. DONALD WORME: 6 Q: And if I could refer you to page 271 7 of that same document and your indication at the -- near 8 the -- at the bottom of the page: 9 "I think the thing that has gotten 10 people particularly concerned here is 11 the reports of gunfire last night." 12 And I take it that that is the information 13 that you would have heard in the Interministerial 14 Committee you had attended just earlier? 15 A: Yes. 16 Q: And does that help you in terms of 17 recalling what information was provided at -- at that 18 earlier IMC meeting? 19 A: Well, just that it would indicate 20 that there was a report at that meeting or conceivably 21 even at the earlier meeting that I wasn't in attendance 22 at, that there was reports of gunfire. 23 Q: I see. And if you can turn to the 24 next page at 272 in the middle, it would appear that 25 Inspector Carson is explaining first of all, the fire?
1081 A: Yes. 2 Q: And then secondly, the gunfire 3 towards the middle of the page, explaining that there -- 4 there was no weapons that were pointed at officers. 5 Okay. And he suggests that it was nothing more perhaps 6 than maybe audio for our benefit. 7 A: Yes. 8 Q: Now were you making an assessment as 9 you're going along and hearing this information, Mr. 10 McCabe as to the urgency of this situation so as to 11 determine whether to go ex parte or not? 12 A: Well, I think at this stage, I was 13 probably becoming curious as to what my chances were the 14 next day. But it wasn't from the point of view of 15 affecting what I was going to be doing the next day. I 16 already knew that we were going to be proceeding to -- to 17 seek an injunction without notice although we were going 18 to attempt to serve. 19 I knew what rule I was proceeding under 20 and I knew that, you know, these -- these things were 21 going to be an issue. But as I say, I think I was 22 probably becoming curious as to what the likely result 23 of, you know, that was going to be and I was -- 24 Q: Right. 25 A: -- I was -- that would seem preparing
1091 myself to -- if -- if the facts warranted to -- to, you 2 know, point out to the judge who -- who was going to hear 3 the motion that this was indeed a situation where the 4 interloc -- or there -- where an ex parte injunction 5 ought to be. 6 Q: I take it that as a result of that 7 preparing yourself that at page 274, the question you ask 8 at the top of the page, you're, in essence, asking 9 Inspector Carson whether or not in his view, this matter 10 is urgent and he tells you that in fact it is? 11 A: Yeah. I'm asking that. I don't 12 remember asking the officer that but clearly I did. 13 Q: All right, thank you for that. 14 You had indicated earlier, sir, that in 15 your discussion with Ron Fox, one of the things you were 16 interested in was getting a list of occupiers so that you 17 can put a title, if I can put it that way or a style of 18 cause, on your motion documents? 19 A: Yes. 20 Q: And did you eventually receive such 21 from -- from -- 22 A: Yes. 23 Q: -- either Officer Carson or others? 24 A: Yes. 25 Q: We have an exhibit that's marked as
1101 P-436 in these proceedings which is a telefax that was 2 sent to you at 16:07. I wonder if perhaps that can be 3 put in front of the Witness? 4 I'll tell you that it is a fax from 5 Inspector Carson to yourself. It's Inquiry Document 6 1011798 for the benefit of My Friends. 7 8 (BRIEF PAUSE) 9 10 Q: All right. And it sets out a series 11 on the first page of thirteen (13) names and on the 12 subsequent page an additional thirteen (13) names? 13 A: Yes. 14 Q: Right. And that is the information 15 that you would have used in the preparation of your 16 documents? 17 A: Yes. 18 Q: All right. 19 20 (BRIEF PAUSE) 21 22 Q: At Tab 20, sir, of the documents, 23 we've already referred to this, this is Exhibit P-426. 24 It would appear that at 16:12 hours, if 25 you look at the second page in on that document, it's
1111 page 64 at 16:12 hours, Tim McCabe returned John Carson's 2 call? 3 A: Yes. 4 Q: And there was some confirmation at 5 that point in time that Detective Sergeant Mark Wright 6 would be the OPP representative to provide information as 7 you were requesting of Carson in -- of Inspector Carson 8 in the recording we've just heard? 9 A: Yes. 10 Q: I should ask you I suppose whether 11 you recall receiving that information specifically or...? 12 A: I don't recall receiving it 13 specifically. You know clearly I did. 14 Q: Pardon me for just one (1) moment. 15 16 (BRIEF PAUSE) 17 18 Q: I'm just going to play that. 19 20 (BRIEF PAUSE) 21 22 A: Could -- could I ask whether I have a 23 transcript of it here? 24 Q: I'm just looking for that. I think 25 you're going to find that at Tab 23. You also have the -
1121 - have the book in front of you, but in -- in your book 2 of documents it's at Tab 23. It's Exhibit P-444(B) and 3 it's at Tab 24 in the book -- the other book of documents 4 that you have beside you. All right. 5 6 (AUDIOTAPE PLAYED - TRANSCRIPT BELOW) 7 8 September 6, 1995 9 TIME: 15.59.57 hours 10 Track 3.wav 11 12 (dialing of phone, ringing of phone) 13 ANSWERING 14 MACHINE: Hello it's Tim MCCABE I'm not available at 15 the moment please leave a message at the 16 tone and I'll be back to you as soon as 17 possible. In the meantime you could talk 18 to my Secretary Jackie EDWARDS at three 19 (3) two (2) six (6) four (4) one (1) two 20 (2) eight (8). 21 FEMALE VOICE: At the tone please record your message at 22 the end of your message press one (beep) 23 CARSON: Tim it's ah John CARSON OPP ah calling 24 it's ah four (4) O (0) eight (8) ah I'm 25 calling back in regards to that ah hearing
1131 tomorrow morning thank you. I'm available 2 at ah area code five (5) one (1) nine (9) 3 seven (7) eight (8) six (6) one (1) two 4 (2) six (6) two (2) thank you. 5 End of conversation 6 7 September 6, 1995 8 TIME: 16.06.03 hours 9 Track 3.wav 10 11 MCLEAN: Command Post Sgt. MCLEAN. 12 MCCABE: Oh Inspector ah CARSON please. 13 MCLEAN: May I ask who's calling please? 14 MCCABE: It's Tim MCCABE at the 15 MCLEAN: Yes Tim 16 MCCABE: Attorney Generals Office. 17 MCLEAN: Yep I spoke to last time I remember the 18 name just one second please. 19 20 21 CONTINUED BY MR. DONALD WORME: 22 Q: You'll find the transcript for this, 23 Mr. McCabe, at Tab 25 of the materials. It's also 24 Exhibit P-444(B) at Tab 45. 25 A: Thank you.
1141 (AUDIOTAPE PLAYED - TRANSCRIPT CONTINUED BELOW) 2 3 CARSON: John CARSON. 4 MCCABE: Oh hello ah John it's Tim MCCABE in 5 Toronto. 6 CARSON: Yes yes yeah I just ah called back I just 7 want to confirm ah Detective as Sergeant 8 Mark WRIGHT. 9 MCCABE: Okay. 10 CARSON: Will be our ah representative tomorrow 11 morning. 12 MCCABE: Detective Sergeant Mark WRIGHT. 13 CARSON Yes. 14 MCCABE: Okay and he ah will be able to speak as 15 authoritatively to these things as as you 16 would be. 17 CARSON: Yeah that's right well just just to give 18 you a little background on em ah ah when 19 ah Natives ah took over CFB Ipperwash in 20 ah May ninety-three (93). 21 MCCABE: Right. 22 CARSON: Ah he was involved as with that incident 23 ah in conjunction with myself who was 24 Incident Commander at that time and as 25 he's been intimately involved in in that
1151 whole um um process since May ninety-three 2 (39) a where my ah police involvement has 3 ah taken place. 4 MCCABE: All right. 5 CARSON: Including execution of search warrants ah 6 relative to ah ah shots fired at a 7 Military helicopter in August of that 8 year. 9 MCCABE: I see. 10 CARSON: So ah other than myself he's the only one 11 that has been involved to that degree. 12 MCCABE: Okay. 13 CARSON: And he's he's been intimately involved in 14 all aspects of this operation. 15 MCCABE: Right all right ah so um I can reach him 16 at this same number ah 17 CARSON: Yeah. 18 MCCABE: this evening. 19 CARSON: That's right ah he's ah he's working out 20 of the same location as I am. 21 MCCABE: Right. 22 CARSON: And ah he's not here right at the moment 23 but ah ah but the number you called me at 24 is is the way to get a hold of him. 25 MCCABE: Okay and that'll that'll be good all
1161 through this evening too. 2 CARSON: Yeah like he he may be away for for dinner 3 or something but ah he'll certainly we'll 4 certainly have contact get back to him 5 immediately. 6 MCCABE: Oh okay. 7 CARSON: Okay. 8 MCCABE: So it's eight (8) o'clock ah we're on at 9 nine (9) o'clock. 10 CARSON: Right. 11 MCCABE: If he could meet with us at eight (8) 12 o'clock tomorrow at the ah court house in 13 Sarnia. I'm told that the ah the ah Crown 14 Attorney ah will let us in and and in fact 15 ah he's he's made available an officer a 16 room or something for us to have a a 17 conversation before court. 18 CARSON: Okay that's fine. 19 MCCABE: Yep. 20 CARSON: No problem at all and I'll I'll brief him 21 on the issues as I see it or or the 22 concerns that I have. 23 MCCABE: All right. 24 CARSON: Oh 25 MCCABE: and ah so we'll see him at eight (8)
1171 o'clock in the morning. 2 CARSON: I appreciate that. 3 MCCABE: Right oh. 4 CARSON: Thank you. 5 MCCABE: Okay. 6 CARSON: Bye. 7 MCCABE: Bye bye. 8 End of conversation 9 10 CONTINUED BY MR. DONALD WORME: 11 Q: And that is the -- you agree that 12 that is the conversation that you had? 13 A: Yes. 14 Q: And do you have any specific 15 recollection of that? Sorry to have to keep asking you 16 this. 17 A: I don't really know. 18 Q: Thank you. 19 A: I just have a general recollection of 20 speaking to more than one (1) officer that afternoon and 21 evening. 22 Q: And if I can just refer you to the 23 next tab in your exhibit, Tab number 26 -- pardon me, in 24 your book of documents. That is Exhibit P-652. 25 It's a memorandum to Julie Jai from Dave
1181 Carson. 2 A: Yes. 3 Q: And I note that at page 5 you are 4 copied on this. 5 Do you have any recollection of seeing 6 this document before? 7 A: I don't have a specific recollection 8 of it, you know. Somewhere along the line I've either -- 9 at the time or subsequently, I've been made aware of the 10 fact that Dave Carson, you know, gorked (phonetic) up a 11 memo on the application of the Cemeteries Act. 12 Q: And this would be the -- the 13 applicable legislation in those instances and this memo 14 would have arose out of the instruction, the next steps 15 that were to be taking following the Interministerial 16 Committee meeting of that day, of the 6th -- 17 A: I suppose so, yes. 18 Q: Nextly at Tab 28, it's Inquiry 19 document 2000601 and it comes from the OPP logger tapes 20 from 1800 hours to 2002 hours. 21 There's a conversation between yourself 22 and Inspector Linton? 23 A: Yes. 24 Q: All right. I wonder if we can maybe 25 just go ahead and play that one?
1191 (BRIEF PAUSE) 2 3 Q: And perhaps just while that is 4 setting up, if I can draw your attention to Tab number 5 20, and that is Exhibit 426 and if I can take you to -- 6 7 (AUDIOTAPE PLAYED) 8 9 Q: If I can take your attention to the 10 time noted at 1945 hours. 11 A: Yes. 12 Q: And it reads: 13 "Tim McCabe wants Mark Wright to call 14 him regarding reviewing evidence for 15 tomorrow. He will be faxing a copy of 16 his injunction for us to try to serve 17 the natives to let them know what's 18 happening." 19 And that's consistent with what you, I 20 think, had told us already? 21 A: Yes. 22 Q: And what your intentions were with 23 respect to taking this particular avenue, but nonetheless 24 attempting to effect service? 25 A: Yes.
1201 Q: All right, okay. 2 3 (AUDIOTAPE PLAYED - TRANSCRIPT BELOW) 4 OCCURRENCE: 955-10-2001-064 5 6 DATE: 06 September 1995 7 COMMAND POST LOGGER 8 From VHS 06 September 1995...Days...Track 3...Cassette 10 9 1800 hours to 2202 hours 10 SIDE A OF TAPE 11 12 PETERMAN: Command post, PETERMAN. 13 MCCABE: Oh is Inspector CARSON there? 14 PETERMAN: Ah he's just left ah can I ask who's 15 calling? 16 MCCABE: Oh it's Tim MCCABE from the Attorney 17 General's Office in Toronto. 18 PETERMAN: Huh huh. 19 MCCABE: Ah he he's gone for the evening has he 20 or... 21 PETERMAN: Yeah I think he's back in tomorrow, 22 there is another Inspector here, did 23 you want to talk to him? 24 MCCABE: Is Detective Sergeant WRIGHT there? 25 PETERMAN: Ah no ah he isn't here at the moment
1211 either I'm expecting to hear from him 2 anytime. 3 MCCABE: Okay well there's two things ah yes 4 there's there's another Inspector 5 there, perhaps I should speak to him 6 then. 7 PETERMAN: Yeah okay just a moment. 8 MCCABE: Okay. 9 No talking 10 ??: Trouble. 11 12 U/K: (I/A) 13 ??: Oh. 14 ??: I should have asked the ah... 15 U/K: (I/A) 16 LINTON: Inspector LINTON. 17 MCCABE: Oh hello ah Inspector LINTON. It's Tim 18 MCCABE at the Attorney General's Office 19 in Toronto. 20 LINTON: Yes. 21 MCCABE: Ah I was ah talking to Inspector CARSON 22 earlier and also ah Ron Faux down here. 23 LINTON: Yes. 24 MCCABE: Ah you probably know that we have 25 instructions to ah to proceed before a
1221 Judge in Sarnia tomorrow morning. 2 LINTON: Yes. 3 MCCABE: To seek ah an Interim Injunction in 4 connection with this occupation of the 5 provincial park. Ah I'm I'm calling 6 you about two things really, one is I'd 7 like to speak to ah if if possible if 8 we can if this is convenient with 9 Detective Sergeant ah WRIGHT tonight, I 10 know he's coming out ah to Sarnia ah 11 tomorrow morning and we're going to 12 have a chance to talk for about an hour 13 before we're due in court at 9:00 14 o'clock. 15 LINTON: Okay. 16 MCCABE: But if I could ah I just thought it 17 would be useful if if ah if we ah ah 18 took some time to just go over the type 19 of thing that I envision happening... 20 LINTON: Okay. 21 MCCABE: Ah on the phone tonight, ah that's one 22 thing, the other thing is... 23 LINTON: What's your number first Tim? 24 MCCABE: Ah it's ah it's ah area 416-326-4127. 25 LINTON: Okay.
1231 MCCABE: The other thing is ah would it be 2 possible now I know it's getting kind 3 of late here and it's ah and I guess 4 it's going to get dark very soon if it 5 isn't already, ah ah would what we are 6 hoping even though this is X party 7 which of course it means there's that 8 we're bringing this without formal 9 notice... 10 LINTON: Hmm hmm. 11 MCCABE: We thought it would be very ah helpful 12 if we provided at least some sort of 13 notice to the people ah the the 14 occupiers in the park that we are in 15 fact proceeding tomorrow, I don't think 16 they've been told that by anyone and ah 17 ah what we one thing was that ah we'd 18 be we'd be quite happy to do would be 19 to fax through our notice of motion... 20 LINTON: Hmm hmm. 21 MCCABE: Ah for the events tomorrow to you... 22 LINTON: Hmm hmm. 23 MCCABE: At it would if if you thought it would 24 save prudence and so forth t to take it 25 out this evening and just hand it to
1241 them and ah advise them that you 2 understand that there's going to be a 3 court proceeding in Sarnia tomorrow and 4 here's a notice of motion that they're 5 probably going to be interested in. 6 LINTON: Okay Mark ah went out today ah I wasn't 7 here but I understand in the briefing 8 that Mark WRIGHT actually went out and 9 tried to have ah conversation and they 10 wouldn't talk to him, all they did was 11 shine mirrors in his eyes type of 12 thing... 13 MCCABE: I see. 14 LINTON: And the ah the newspaper has been ah 15 indicating that ah an injunction will 16 be... 17 MCCABE: Right. 18 LINTON: Will be sought. But I I'm not adverse 19 to that, we'd be happy to ah to have a 20 copy of that ah of your document and 21 try to ah to serve it. 22 MCCABE: Alright well that would be very helpful 23 and then and then Detective Sergeant 24 WRIGHT in the morning could could tell 25 us what the ah you know what the result
1251 of that attempt was. 2 LINTON: Okay. 3 MCCABE: And we would at least be able to advise 4 the Judge, we'd either say well we we 5 successfully um ah provided a copy of 6 this last night to them or we could say 7 that we tried and they declined to 8 receive it. 9 LINTON: Okay. 10 MCCABE: Alright well... 11 LINTON: And I'll have... 12 MCCABE: What what's your fax number? 13 LINTON: Ah just give me a sec see what we've 14 got for a fax here. What's our fax 15 into here? Should get ah... 16 U/K: (I/A) 17 ??: (I/A) 18 U/K It's not the regular phone number 19 though. 20 LINTON: What's the fax number? 21 (I/A background talking) 22 ??: 786-2141. 23 LINTON: 519... 24 MCCABE: Yeah. 25 LINTON: 786-2141.
1261 MCCABE: 786-2141. 2 LINTON: Yeah. 3 MCCABE: Alright well I'll we'll get that off ah 4 virtually right away to you then. 5 LINTON: Okay. 6 MCCABE: Ah it'll it'll be a notice it'll be 7 quite a few pages I'll be a notice of 8 motion which I think is about five or 9 six and then ah ah we'll probably 10 provide you with ah with the affidavit, 11 the aff ah ah affidavit of M and R man 12 Mr. COBIANE. 13 LINTON: Okay. 14 MCCABE: Which he's going to sign tomorrow 15 morning ah we can give you the text of 16 that we may not bother with the att 17 attachments to it but we can give you 18 the text of that and... 19 LINTON: Okay. 20 MCCABE: You can keep that along with the notice 21 of motion.. 22 LINTON: Good. 23 MCCABE: Alright and if... 24 LINTON: And I'll... 25 MCCABE: If you could have Detective Sergeant
1271 WRIGHT give me a call I expect I'll, do 2 you expect to see him in the next hour 3 or so? 4 LINTON: Oh yeah. 5 MCCABE: Okay if he could give me a call that 6 would be great. 7 LINTON: Okay. 8 MCCABE: Right. 9 LINTON: Thanks a lot, thanks bye bye. 10 END OF CONVERSATION 11 Dialling of phone 12 13 CANTEL: You have reached the CANTEL NETWORK, 14 the customer you are calling is unavailable at the 15 moment, please try... 16 17 Hang up...dialling of phone 18 19 PAGING CO: Thank you for calling MCLEAN HUNTER 20 PAGING, please leave a short message after 21 the tone. 22 LINTON: Mark would you call Dale LINTON at the 23 Command Post right away, thanks. 24 END OF CONVERSATION 25 END OF TAPE SIDE A
1281 2 CONTINUED BY MR. DONALD WORME: 3 Q: And you'll agree, Mr. McCabe, that 4 that is consistent of what you told us about your efforts 5 to have service effective notwithstanding the proceeding 6 on the ex parte rules? 7 A: Yes. 8 Q: All right. 9 MR. DONALD WORME: Perhaps, we could make 10 that an exhibit, Mr. Commissioner; that is not -- that 11 conversation is not an exhibit at this point. 12 THE REGISTRAR: P-750, Your Honour. 13 14 --- EXHIBIT NO. P-750: Document Number 2000601. OPP 15 Logger tapes - Conversation 16 between McCabe and Linton, 17 Sept.06/'95. 18 19 CONTINUED BY MR. DONALD WORME: 20 Q: And if I can turn your attention 21 nextly, Mr. McCabe, to Tab number 29, and that is already 22 Exhibit P-463. It is the command post logger tape 23 conversation between yourself and Detective Sergeant 24 Wright. 25 The time would be indicated at 20:19
1291 hours. 2 3 (BRIEF PAUSE) 4 5 Q: Perhaps just before I get -- I get to 6 that, just with respect to the previous conversation, 7 that is now P-750, your conversation with Inspector 8 Linton, do you know what time that that might have 9 occurred? 10 A: I -- I have no independent 11 recollection, apart from the -- 12 Q: And are you aware that a telefax of 13 the materials that you were just discussing with 14 Inspector Linton in that conversation had, in fact, been 15 faxed to Inspector Linton? 16 A: Yes. 17 Q: Okay. And we had, yesterday, an -- 18 the exhibit, the fax cover sheet from your assistant 19 Jackie Edwards to Inspector Linton. 20 I'm sorry, pardon me one second. 21 22 (BRIEF PAUSE) 23 24 Q: I'm informed by My Friends that, in 25 fact, it was from Elizabeth Christie to Mr. Linton or
1301 Inspector Linton, pardon me. 2 A: Yeah, I don't -- I don't know who it 3 was from, but that's -- you know, I wouldn't be at all 4 surprised that it was from Elizabeth Christie. 5 Q: I wonder if we can maybe, just before 6 we play the next tape, take a look at that exhibit, and 7 I'm sorry, Mr. Registrar, I don't have an exhibit number 8 for you, but the fax cover sheet that was filed as an 9 exhibit. 10 A: Yes. 11 THE REGISTRAR: Is that yesterday? 12 MR. DONALD WORME: Yes. 13 14 (BRIEF PAUSE) 15 16 THE REGISTRAR: P-747. 17 MR. DONALD WORME: Right. 18 19 CONTINUED BY MR. DONALD WORME: 20 Q: And if I'm not mistaken, Mr. McCabe, 21 you'll note on the fax cover sheet to Inspector Linton 22 from Ms. Christie, there is a time on that? 23 A: Yes. 24 Q: And what is that time? 25 A: 8:12 p.m.
1311 Q: Okay. Do you have any reason to 2 disagree that that would be the time that that was faxed 3 to Inspector Linton? 4 A: No. 5 Q: So the conversation that we've just 6 heard would have occurred at, obviously, at some point 7 prior to that? 8 A: Well, actually 8 -- if I'm reading 9 this correctly, the 8:12 is a fax to G. Chittle at the 10 Courthouse. 11 Q: Okay. 12 A: And 747 is a fax to Inspector Linton. 13 Q: Yes, thank you for that 14 clarification. 15 16 (BRIEF PAUSE) 17 18 Q: And just as part of that exhibit 19 you'll note the first page on that -- that is your 20 letter? 21 A: Yes. 22 Q: Okay. Thank you. 23 24 (BRIEF PAUSE) 25
1321 Q: If I can refer you then, nextly, to 2 your tab number 29 which is the conversation between 3 yourself and Detective Sergeant Wright. 4 A: Yes. 5 Q: And what I'm going to suggest, Mr. 6 Commissioner, is that we simply play this document. It 7 is -- pardon me, this -- this recording. It's 8 approximately eighteen (18) minutes or so, if I'm not 9 mistaken, and simply leave it at that, and return after - 10 - after the noon break, all right? 11 COMMISSIONER SIDNEY LINDEN: If this is a 12 tape that we've not yet heard. Is that right? 13 MR. DERRY MILLAR: We have not heard it, 14 I don't think. 15 16 (AUDIOTAPE PLAYED - TRANSCRIPT BELOW) 17 COMMAND POST LOGGER TAPE 18 OCCURRENCE: 955-10-2001-064 19 20 DATE: 06 SEPTEMBER 1995 21 1848-2320 Hours 22 23 (dialling of phone...ringing in...no answer) 24 (inaudible background talking) 25 (dialling of phone...busy tone)
1331 (dialling of phone...busy tone) 2 (background talking) 3 (dialling of phone...the number dialled cannot be reached 4 from your area, please check the number and dial 5 again...this is a recording) 6 (dialling of phone...) 7 Linton: ... back to that note I gave you, the 8 note I gave you to phone Tim MCCABE. 9 (background...oh...and I need that note back) 10 (inaudible background talking) 11 Phone ringing in...the cellular customer you have dialled 12 is away from the phone or temporarily out of the service 13 area. Please try again. This is a recording. 14 (dialling of phone...ringing in) 15 (dialling of phone...ringing in) 16 MCCABE: Hello. 17 WRIGHT: Hello Tim. 18 MCCABE: Yes. 19 WRIGHT: Hi, it's ah Detective Mark WRIGHT. 20 MCCABE: Oh, thank you ah 21 WRIGHT: At ah the Land of Oz here. 22 MCCABE: (Chuckles) that's how it's starting to 23 feel eh? 24 WRIGHT: Well it's really the shit's coming down 25 right now.
1341 MCCABE: It is eh? 2 WRIGHT: Yeah. 3 MCCABE: What's what's going on there? 4 WRIGHT: Well we got major trouble right now. 5 MCCABE: Really? 6 WRIGHT: Yeah. 7 MCCABE: What's what's the problem? 8 WRIGHT: Well they're moving ah they're coming 9 out for a fight down to the road so 10 were taken all the marines down now. 11 MCCABE: Oh my goodness. Ah alright well as so 12 ah that that doesn't affect our 13 activity tomorrow morning does... 14 WRIGHT: Well it might affect my my amount of 15 sleep for you (chuckles) 16 MCCABE: Yeah well well listen I in exactly the 17 same position... 18 WRIGHT: Yeah. 19 MCCABE: We have to get up at 4:00 o'clock to 20 get down there. 21 WRIGHT: Yeah. 22 MCCABE: Yeah, listen um I what I what I wanted 23 to do even though we're going to have a 24 chance tomorrow morning to talk at the 25 ah...
1351 WRIGHT: Courthouse. 2 MCCABE: The courthouse, I thought it would be 3 helpful to both of us if I if I ah talk 4 to you and just sort of gave you the 5 way I think it's going to unfold as far 6 as your evidence is concerned. 7 WRIGHT: Okay. 8 MCCABE: And and I can tell you you know the 9 questions that I would... 10 WRIGHT: That I want to know. 11 MCCABE: Propose to ask... 12 WRIGHT: Yeah. 13 MCCABE: And ah you'll see as we go there they 14 are some specific questions but of 15 course I don't want to lead you much 16 and ah... 17 WRIGHT: Hmm hmm. 18 MCCABE: And and so there are a couple of places 19 where you will just be telling the 20 story. 21 WRIGHT: Yeah. 22 MCCABE: Ah you know just just giving a 23 narrative so ah you know so we can work 24 this out you can tell me where I've ah 25 where where I've gone wrong here or how
1361 we could do it better but but I thought 2 we'd ah you know after identifying you 3 ah what's your name, I understand that 4 you're an officer with the ONTARIO 5 PROVINCIAL POLICE. 6 WRIGHT: Yeah. 7 MCCABE: Ah then what is your rank and your role 8 with the OPP so that... 9 WRIGHT: Okay, yeah it's simple. 10 MCCABE: Yeah. 11 WRIGHT: Yeah. 12 MCCABE: Then I thought I would do something 13 like I understand that in the course of 14 your duties with the OPP you have had 15 occasion to have contact with 16 aboriginal persons at Camp Ipperwash on 17 Lake Huron ah in the County of Lampton. 18 WRIGHT: Camp Ipperwash? 19 MCCABE: Yeah because at this point... 20 WRIGHT: Yeah. 21 MCCABE: What I have in mind is I'm I'm told by 22 Inspector CARSON and... 23 WRIGHT: Hmm hmm. 24 MCCABE: and and ah that that you have been 25 involved in this for a couple of years.
1371 WRIGHT: Yeah, I sure have. 2 MCCABE: The first ah occupation in '93. 3 WRIGHT: Yeah. 4 MCCABE: Ah can you hang on just a sec? 5 WRIGHT: Hmm hmm. 6 MCCABE: Hello. 7 WRIGHT: Yeah. 8 MCCABE: Yeah, ah so that's your signal to well 9 you just say yes to that and then and 10 then what was the occasion of that 11 contact and then if you could then you 12 know explain what you've been doing in 13 '93 and '94 I guess it's two years ago 14 and then now. 15 WRIGHT: Yeah well okay I can start with I'm 16 going to have to be real vague with ah 17 ah dates and stuff like that, okay but 18 I can say you know it originally ah my 19 involvement originally started with ah 20 the occupation of the ah Canadian 21 Forces Base Ipperwash in the ah non 22 built up area of the base. 23 MCCABE: Right. 24 WRIGHT: Which as later evolved into an 25 attempted murder of Canadian Forces
1381 personnel flying overhead in ah 2 military hop helicopter in the summer 3 of '93 and ah ah which I was the ah 4 primary investigator in that 5 investigation ah and continued on into 6 ahm the an continuing tensions between 7 the military and the Natives on the 8 base, ah culminating in the (I/A) of 9 the base by a number of Indians who 10 called themselves Stony Point which 11 happened earlier I think in that would 12 be in ah Jesus what month are we in 13 now, September I'd say ah what August 14 July. 15 MCCABE: July I would think. 16 WRIGHT: Yeah that was the armed that was so 17 that would be my my continuing 18 investigation with the Army Base. 19 MCCABE: Alright so so well that's that's fine 20 that's exactly it just ah... 21 WRIGHT: Okay, just an just a READER'S DIGEST 22 that's good enough eh? 23 MCCABE: Yeah that's fine. It's just to you 24 know just indicate that you have this 25 background ah you just didn't show up
1391 yesterday ah on the scene here. 2 WRIGHT: Yeah. 3 MCCABE: Then ah something like ah where is 4 Ipperwash Provincial Park located in 5 relation to Camp Ipperwash? 6 WRIGHT: Oh okay that's no problem. 7 MCCABE: Right. 8 WRIGHT: Camp Ipperwash is I mean ah Ipperwash 9 Provincial Park is tucked into the ah 10 south...southwest corner of ah the 11 concession block which makes up ah 12 Ipperwash as Canadian Forces Base 13 Ipperwash. 14 MCCABE: So it's so it's... 15 WRIGHT: The bottom end. 16 MCCABE: It it yeah it's adjacent it's at that 17 bottom end... 18 WRIGHT: Yeah. 19 MCCABE: It's at the south end of... 20 WRIGHT: Yeah. 21 MCCABE: Of Ipperwash. 22 WRIGHT: Yeah that's right a hundred and two 23 acres. 24 MCCABE: Yeah. 25 WRIGHT: Of park.
1401 MCCABE: Alright then I understand that in 2 recent days Ipperwash Provincial Park 3 has been the subject of an 4 occupation... 5 WRIGHT: Hmm hmm. 6 MCCABE: In addition so that at Camp Ipperwash. 7 WRIGHT: Right on, yes. 8 MCCABE: Okay and then and then we get into your 9 second long narrative, can you describe 10 the events as they've occurred since 11 Monday, September the 4th, Labour Day? 12 WRIGHT: Yeah, okay. 13 MCCABE: Now, uhm ah you know you do it in the 14 way you want but and I've got sort of a 15 list of points that I that I... 16 WRIGHT: Yeah. 17 MCCABE: Want to cover. 18 WRIGHT: Right. 19 MCCABE: And and ah it's best you know if it 20 comes from you... 21 WRIGHT: Hmm hmm. 22 MCCABE: We talk about this again a little in 23 the morning... 24 WRIGHT: Morning that's right. 25 MCCABE: But but ah things like well you know
1411 the numbers ah you you talk about the 2 events that they took it over on on the 3 evening of Monday ah ah the numbers of 4 people there ah ah I I would if you 5 didn't say it I would ask whether they 6 made any demands... 7 WRIGHT: Okay how about this, let me just give 8 you a quick blurb... 9 MCCABE: Alright. 10 WRIGHT: And I think I"ll probably be able to 11 cover all this for you. 12 MCCABE: Okay. 13 WRIGHT: They took the they occupied as Camp 14 Ipperwash at approximately 7:30 on 15 Monday evening with somewhere between 16 twenty and forty individuals which ah 17 ended in a violent confrontation 18 between ah police and Natives in that 19 ah our officers were threatened and ah 20 ah additional officers had to come in 21 to help ah rano ah extract officers 22 that were trapped inside the park. 23 Immediately thereafter a command post 24 was set up blah blah blah additional 25 officers ah since that time we have set
1421 up roadblocks in and around that area, 2 they I myself personally have attempted 3 to make contact on three different ah 4 times with individuals within the park 5 in an attempt to establish an open 6 dialogue with these people. They 7 they're unorganized they refuse to deal 8 with us they don't have a spokesman, ah 9 I've told them personally yesterday 10 whatever yesterday was... 11 MCCABE: Right. 12 WRIGHT: that ah ah person who was down there a 13 man by the name of Bert MANNING that 14 they were trespassing, they trespassed 15 the property and that they ah were 16 unlawfully on there that ah we 17 considered that unlawful possession of 18 land that the ah intention was that the 19 Ministry was going to attempt to ah 20 seek to obtain an injunction with 21 respect to their illegal occupation and 22 who could I contact because it was my 23 undertaking that you the Natives on 24 holding ah possession of the park at 25 this particular time, would be allowed
1431 representation and attendance at that 2 hearing if they so desired and I wanted 3 to make it up find an individual who we 4 could contact ah to serve and they told 5 me this individual told me that ah they 6 wanted nothing to do with us, they 7 didn't care about what we were going to 8 do and they weren't going to attend ah 9 any white man's court. 10 MCCABE: I see. 11 WRIGHT: That's pretty specific. 12 MCCABE: Yeah. 13 WRIGHT: Now we've had this shit that happened 14 tonight. 15 MCCABE: That covers...well we'll get to that. 16 WRIGHT: Yeah. 17 MCCABE: Ah and did they have they at any time 18 made any any specific demands? 19 WRIGHT: Absolutely not. 20 MCCABE: Alright have they made any statements 21 about why they are there? 22 WRIGHT: Yes they have, they say ah ah that ah 23 they consider that secret land and they 24 also say that there is a secret burial 25 ground on that, that's been researched
1441 is is hearsay information allowed at 2 these things? 3 MCCABE: Pardon me? 4 WRIGHT: Is hearsay allowed at this kind of a 5 thing or not, what are the rules of 6 evidence? 7 MCCABE: Ah ah I'm going to ask you the question 8 and you can you you say it and if the 9 Judge says ah he doesn't want to hear 10 hearsay well then... 11 WRIGHT: Okay. 12 MCCABE: You can't. 13 WRIGHT: Well what's my understanding that this 14 has been researched and there is no 15 burial ground on there, the title has 16 also been searched and they have no 17 claim there and there is no claim 18 before the civil courts with respect to 19 that by the Natives. 20 MCCABE: Right. 21 WRIGHT: I've also ah ah information received 22 from Tom BRESSETTE whose the the the... 23 MCCABE: That's my next question... 24 WRIGHT: The Native as Chief of Kettle and Pony 25 Pointy Stony Point Band has made
1451 comments in the press that ah that ah 2 that there is no burial ground there 3 and that ah there is no ah con 4 contention with respect to Ipperwash 5 Provincial Park and who it belongs to 6 and that it does belong to the ah ah 7 Ministry of Natural Resources so the 8 Province. 9 MCCABE: Alright, I would say at that point ah 10 you mentioned the ah Kettle Point and 11 ah and Stony Point... 12 WRIGHT: Yeah. 13 MCCABE: Ah Indian Band ah that ah Detective 14 Sergeant... 15 WRIGHT: Hmm hmm. 16 MCCABE: Is that a status Indian Band? 17 WRIGHT: Yes it is, yes it is. 18 MCCABE: Is there any indication ah of its 19 position with respect to this 20 occupation? 21 WRIGHT: Yes ah my my understanding is that they 22 do not support this in any way, shape 23 or form. 24 MCCABE: Alright now Detective Sergeant could 25 you ah sketch ah or outline for the
1461 court some activities that ah ah the 2 people occupying the park have engaged 3 in over the last several days when the 4 occupation began. 5 WRIGHT: Okay. 6 MCCABE: And and here just (I/A) ah you know I'm 7 looking for things like the... 8 WRIGHT: I I... 9 MCCABE: (I/A) 10 WRIGHT: Yeah I know exactly what you're after. 11 They they've barricaded all entrances 12 to the park, they've broken into a 13 number of buildings and I can get into 14 those buildings I can name those 15 buildings... 16 MCCABE: Right. 17 WRIGHT: And where they are, they've taken ah 18 property out of those buildings ah such 19 as freezers and ah sink a stainless 20 steel sinks and removed them. They've 21 oh taken property of the Ministry of 22 Natural Resources such as sirens and 23 lights and and attached them to cars in 24 there, they've ah burnt picnic tables 25 they've ah put barricades with garbage
1471 huge garbage cans industrial cans and 2 ah wood and ah picnic tables at all 3 entrances to the gate. They've ah what 4 else have they done, they've ah let's 5 see what else have they've done... they 6 ah tried to block a part of residence 7 of public county land ah which is 8 running to the beach allowances and 9 I'll explain where that is with picnic 10 tables and that was removed and 11 individuals were charged with mischief 12 and ah ah mischief and wilful damage. 13 They've ah uhm assaulted two of our 14 officers, one of our officers and ah 15 trashed two of our cruisers so that we 16 right now we have five people charged 17 with criminal code occurrences with 18 respect to that occupation of that ah 19 Provincial Park. 20 MCCABE: Right you mentioned ah ah you mentioned 21 some charges, have have... 22 WRIGHT: Yeah. 23 MCCABE: Warrants been issued? 24 WRIGHT: Yes warrants have been issued for ah 25 five individuals.
1481 MCCABE: Ah is there ah ah is there any 2 suggestion of ah of alcohol on the 3 premises? 4 WRIGHT: ... Ah my information certainly the 5 first night there was and certainly ah 6 ah the second night, I I don't know 7 about last night or tonight for that 8 matter. 9 MCCABE: Let's see this is this is Wednesday 10 night so this is the third night. 11 WRIGHT: Yeah so okay so it was the first and 12 second night my indication there was 13 alcohol. 14 MCCABE: Right uhm... ah now you mentioned that 15 the persons occupying the park have 16 been advised that they are 17 trespassing... 18 WRIGHT: That's right. 19 MCCABE: Now by means was that ah accomplished? 20 WRIGHT: I personally told an individual by the 21 name of Bert MANNING personally at the 22 front gate of CFB what used to be CFB 23 Ipperwash, on Tuesday afternoon at 24 approximately 1:00 o'clock. With me 25 was Len KOBAYASHI who was going to give
1491 going to be there too so he can tell 2 you that, he's the MNR guy. 3 MCCABE: Right. 4 WRIGHT: And he was right there when I did it 5 and Les tried to tell them uhm Monday 6 night with an Provincial Constable so 7 he can tell you that as well. But I 8 told them and I also talked to an 9 individual who I do not know who he is 10 who came to talk to me this afternoon 11 at the at the down by the park where we 12 were conduct trying to attempt 13 negotiations and I told them that they 14 were trespassing. 15 MCCABE: Have ah have they been asked to leave? 16 WRIGHT: Yeah. 17 MCCABE: They've been they've been 18 specifically... 19 WRIGHT: I've told them I've told them I said, 20 you're trespassing you're going to have 21 to leave because if ah if you don't 22 it's my understanding that's how I put 23 it it's my understanding that the 24 Ministry of Natural Resources intends 25 to seek an injunction to have you
1501 removed. 2 MCCABE: Right. 3 WRIGHT: And then we're talking about criminal 4 code offences. 5 MCCABE: Alright. 6 WRIGHT: That's what I told them. 7 MCCABE: When you were going through the 8 activities I don't did you mention 9 guns, I as I understand there was some 10 gunfire last night. 11 WRIGHT: Yeah Christ if that's lie we 12 were if we have to give that 13 out okay but we had a report 14 of automatic weapon fire in 15 the park. 16 MCCABE: Right. 17 WRIGHT: And and I I'll tell you what I was told 18 today, I was told by a guy it's hard to 19 negotiate with him and he says we'll do 20 our talking with guns, that's what he 21 said... 22 MCCABE: Oh my goodness okay well that's a good 23 quote. 24 WRIGHT: Yeah. 25 MCCABE: That maybe his (I/A).
1511 WRIGHT: Yeah. 2 MCCABE: But ah that's that's a good quote. 3 WRIGHT: Well he said it right to me. 4 MCCABE: Yeah. Yeah. 5 WRIGHT: So... 6 MCCABE: Then have ah ah ah the I guess I I've 7 got I've asked ah around this before 8 but have the persons occupying the park 9 provided any information or argument in 10 support of their ah assertion that they 11 have a right to be there? 12 WRIGHT: All no... all they have done is made ah 13 comments what I've seen on the news and 14 read in the paper and said to us ah and 15 that was Mr. MANNING who said they he 16 was happy that they had got their 17 burial ground back. But nothing and I 18 told him I said the proper way to do 19 this would be the civil court if you 20 have a claim on the land and prove that 21 there was one there and that you ah 22 know the proper way. 23 MCCABE: Right. 24 WRIGHT: Well that's white man's law. 25 MCCABE: Yeah. Uhm okay now you're you're you
1521 were going to tell me what's going on 2 now. 3 WRIGHT: Well fuck right now they've got about 4 eight guys down at the bottom end of 5 the park where ah the roads turn and I 6 know you don't know the area but I'll 7 draw it for you so you'll see it. 8 MCCABE: Right. 9 WRIGHT: They've got about eight guys on the 10 edge of the road with bats in their 11 hand... 12 MCCABE: Baseball bats? 13 WRIGHT: Yeah and that's public that's ah county 14 road access so that's mischief you 15 can't use that road and they've trashed 16 a car that went by so we've got wilful 17 damage, we've got possession of a 18 weapon dangerous and we got four BRT 19 Teams and a TRU Team and two canine 20 units going down there to do battle... 21 right now. 22 MCCABE: Yeah alright well... 23 WRIGHT: And we also have a number of irate 24 citizens who are down there ah I think 25 ah picketing and people from Kettle
1531 Point themselves telling them to get 2 out of there. 3 MCCABE: Alright so that's... 4 WRIGHT: So we got a cluster down there now. 5 MCCABE: Okay so that's all informatio makes 6 some good notes on that and an and an 7 that's... 8 WRIGHT: That's right off the top of my head, I 9 don't need notes I I recall all of 10 that. 11 MCCABE: Well make sure you, you know make sure 12 you have it all tomorrow. 13 WRIGHT: Yeah. 14 MCCABE: Ready. 15 WRIGHT: Yeah yeah. 16 MCCABE: Okay and then the last thing when I was 17 talking to Inspector ah LINTON. 18 WRIGHT: CARSON? 19 MCCABE: Ah well LINTON. 20 WRIGHT: LINTON yeah. 21 MCCABE: A little while ago CARSON ah isn't 22 wasn't there but ah LINTON ah he agreed 23 that if we were to fax our Notice of 24 Motion ah you know I mentioned it was 25 getting dark...
1541 WRIGHT: Hmm hmm. 2 MCCABE: Ah you fellows may not want to... 3 WRIGHT: No no I know what he said no way not 4 now. 5 MCCABE: Ah well... 6 WRIGHT: We're going to we're going to war now, 7 we're not going to be sending anybody. 8 MCCABE: okay well... alright well he at that 9 time he said yes but I guess ah events 10 overtook the ah... 11 WRIGHT: Well we can try I mean we can try at 12 CFB Ipperwash at the front gate but 13 like... my my advice to the command 14 staff here is no way, how how are they 15 going to take that like I know we just 16 we just went to battle within and we 17 got ten of these guys in custody but 18 however by the way here's an injunction 19 piece of paper... 20 MCCABE: Yeah. 21 WRIGHT: Um unless fax it to us because they 22 might have the (I/A) to show up at our 23 detachment and I can fire that at them. 24 MCCABE: Yeah I think you've probably already 25 got it...
1551 WRIGHT: Okay. 2 MCCABE: We faxed we faxed it to you. You see 3 the point is ah in view of what you 4 tell me I don't think there's going to 5 be much problem with this. 6 WRIGHT: Okay. 7 MCCABE: But ah ah a Judge will go will will ask 8 well you, you know you noticied them... 9 WRIGHT: Yeah. 10 MCCABE: that this was going on this morning 11 didn't you... 12 WRIGHT: Yeah. 13 MCCABE: So if we could if we could say either 14 yes we did they were provided with 15 notice... 16 WRIGHT: Yeah. 17 MCCABE: Last night, or if we said we tried we 18 tried to give them notice last night 19 and they wouldn't listen they wouldn't 20 take the paper. 21 WRIGHT: Yeah. 22 MCCABE: You know. 23 WRIGHT: Well we can give it a shot sure. 24 MCCABE: Yeah just you know so that you can say 25 that ah you know...
1561 WRIGHT: Yeah. 2 MCCABE: There was a lot of activity last 3 night... 4 WRIGHT: Yeah. 5 MCCABE: We tried. 6 WRIGHT: Well, I'll tell you what, the best I 7 can do ah Tim if I may call you Tim... 8 MCCABE: Yeah. 9 WRIGHT: I I'll keep that in mind but I'm not 10 going to sacrifice personal safety and 11 I'm... 12 MCCABE: Oh no. 13 WRIGHT: Prepared to tell the Judge that, Judge 14 I would have done that three hours ago 15 but I'm not going to get one of my 16 officers ah... 17 MCCABE: Absolutely. 18 WRIGHT: You know wounded or injured or worse... 19 20 MCCABE: Absolutely. 21 WRIGHT: To make service, we can do that on the 22 paper or by the news... 23 MCCABE: Yeah. 24 WRIGHT: That's that's a safer way to do it. 25 MCCABE: No ab absolutely not...
1571 WRIGHT: Yeah. 2 MCCABE: Don't don't jeopardize anybody. 3 WRIGHT: No and you can count on me not doing 4 that. 5 MCCABE: Okay yeah I'm sure I can. 6 WRIGHT: Yeah. 7 MCCABE: And and ah then so the other thing you 8 want to say is ah you know ah if I ask 9 you the question, you can say ah well 10 we we would have last night in the 11 normal course... 12 WRIGHT: Yeah. 13 MCCABE: But in the circumstances it was just 14 impossible... 15 WRIGHT: That's right. 16 MCCABE: We would have jeopardized our officers' 17 safety. 18 WRIGHT: Yeah. 19 MCCABE: And and ah and then you can also 20 reiterate the point that they know dam 21 well that there is going to be ah ah... 22 23 WRIGHT: Yeah I I'll try Tim okay. 24 MCCABE: Even if you can tell at them you know 25 we're in court tomorrow morning.
1581 WRIGHT: Tomorrow morning, yeah, be here. Yeah 2 okay well we can give that a shot too. 3 MCCABE: (I/A) tomorrow morning. 4 WRIGHT: Yeah okay what time, what time 9:00? 5 MCCABE: We're in court at 9:00 up there. 6 WRIGHT: What time do you want to meet? 7 MCCABE: Ah ah meet ah... 8 WRIGHT: What time is it now, 9:00 o'clock yeah. 9 MCCABE: Ah well look if you can be there ah ah 10 you know 8:00 or or whenever... 11 WRIGHT: Well 8:00 would probably be good cause 12 we're going to need some time to go 13 over this quietly like... 14 MCCABE: Yeah. Yeah. 15 WRIGHT: I'm I'm to be honest with you, I'm 16 listening to you with one ear and doing 17 something else with the other. 18 MCCABE: Oh alright. 19 WRIGHT: Where do you want to meet at the 20 Crown's office/ 21 MCCABE: At the Crown Attorney's office, Don 22 VALE... 23 WRIGHT: Is he going to open the door for us? 24 MCCABE: Yeah, he's going to open the door for 25 us at 8:00 o'clock.
1591 WRIGHT: Alright okay. 2 MCCABE: And he's got a room for us. 3 WRIGHT: Okay. 4 MCCABE: We can go in there and talk. 5 WRIGHT: Okay okay and you I I don't need to 6 provide you specific names or anything 7 like that do you? 8 MCCABE: Well I've already got a list of mane. 9 WRIGHT: Okay. 10 MCCABE: Which is which is on our ah our title 11 of proceedings... 12 WRIGHT: Good. 13 MCCABE: We've listed about I don't know twenty 14 people or so. 15 WRIGHT: Good. 16 MCCABE: Yeah. 17 WRIGHT: So I don't have to regurgitate that 18 right? 19 MCCABE: I don't think so no. 20 WRIGHT: Okay well if I do you can ask me do you 21 know this person and I"ll just keep 22 saying yes cause... 23 MCCABE: That's right. 24 WRIGHT: I don't have I don't have didn't have 25 the time to do that you can just I hope
1601 you can appreciate what's going on here 2 and by the time I get done... 3 MCCABE: I can right. 4 WRIGHT: I'm going to be in no... 5 MCCABE: Yeah I can imagine. 6 WRIGHT: Go with I'm not going to forget 7 anything I've done here. 8 MCCABE: Alright okay. 9 WRIGHT: But I'll bring a map and you can hand 10 that to the good Judge if you want to 11 and he'll have an idea what the hell 12 we're talking about. 13 MCCABE: Right... excellent right on. 14 WRIGHT: Okay? 15 MCCABE: Alright see you in the morning. 16 WRIGHT: Okay. 17 MCCABE: Righto. 18 WRIGHT: Bye bye. 19 MCCABE: Bye bye. 20 END OF CONVERSATION 21 22 CONTINUED BY MR. DONALD WORME: 23 Q: Okay. And that's it for this point. 24 If you want to adjourn now, Mr. Commissioner, we can 25 perhaps go for lunch or have the lunch break and return
1611 here and continue. 2 COMMISSIONER SIDNEY LINDEN: Okay. We'll 3 take a lunch break now. 4 THE REGISTRAR: This Inquiry stands 5 adjourned until 1:30. 6 7 --- Upon recessing at 12:13 p.m. 8 --- Upon resuming at 1:33 p.m. 9 10 THE REGISTRAR: This Inquiry is now 11 resumed, please be seated. 12 MR. DONALD WORME: Good afternoon, 13 Commissioner. 14 COMMISSIONER SIDNEY LINDEN: Good 15 afternoon. 16 17 CONTINUED BY MR. DONALD WORME: 18 Q: Good afternoon, Mr. McCabe. Just 19 before the -- the noon break, Mr. McCabe, we had an 20 opportunity now to listen to the tape recording as 21 between yourself and Detective Sergeant Wright. 22 I think you acknowledged that that, in 23 fact, was your voice? 24 A: Yes. 25 Q: Do you -- you have some recollection
1621 of that discussion at all, sir? 2 A: Well, some. The -- you know the fact 3 that a conversation like that took place, yes. 4 Q: And you have the -- the transcript in 5 front of you and just -- there's just a couple of -- of 6 questions that I have arising out of that for you; that 7 is again at -- at Tab 29 of the book of documents that 8 I've put in front of you. 9 And if you go to the third page of that, 10 do you see that, in the middle of the page, you are 11 saying Hello to Officer Wright? 12 A: Yes. 13 Q: Detective Sergeant Mark Wright he 14 identifies himself as? And just right at the very bottom 15 of the page his comment: 16 "Well, it's really the shit's coming 17 down now." 18 And he goes on to tell you that there's 19 major trouble there. So just -- at the -- at the middle 20 of that page there's a comment there attributed to 21 Officer Wright: 22 "Well, they're moving, they're coming 23 out for a fight down to the road so 24 we've taken all the marines down now." 25 Do you see that?
1631 A: Yes. 2 Q: And you were talking to him I -- I 3 would think about, at least on the next page, about 4 getting a chance to talk to Detective Sergeant Wright and 5 just with respect to that comment that I drew your 6 attention to on page 3 of that, They're moving down, did 7 you have any sense about the propriety of such comments 8 or did you find that that was your position to -- to make 9 a judgment on those sorts of comments? 10 A: I -- I think it was the last thing in 11 my mind would have been to make a judgment on comments 12 received from the police officer. I had very specific 13 objectives, I wanted to find out what Detective Sergeant 14 Wright -- again I'm -- I'm re -- you know I'm -- I'm 15 reconstituting what was going on. 16 It's not that I have direct recollection 17 of these things, but I -- you know I believe I would have 18 had specific objectives in having this phone 19 conversation, the one about, well, finding out what he - 20 - essentially what he was going to say the next day and - 21 - and the business about service. 22 Q: And in fact he goes on to tell you 23 the types of things that he would be able to relate as 24 you say the next day commencing at page 6 and on. 25 And at page 11 -- in the middle of page 11
1641 Officer Wright says that there was a person who was down 2 there, a man by the name of Burt Manning and he continues 3 on. And at the end of that he tells you that the 4 individual wanted nothing to do with us, that is, with 5 the OPP, that they weren't going to attend to any white 6 man's court. 7 And that is in relation to the service of 8 the documents that you were attempting to see effected, 9 correct? 10 A: At this stage of the conversation I'm 11 -- I'm not sure. He -- the specifics of what he's 12 addressing there, it certainly would have a relation to 13 the service issue, but I think at this stage isn't he -- 14 I believe he's talking about -- you know he's -- he's 15 giving me over the phone a kind of chronology in 16 preparation for the chronology that he's going to give in 17 court the next day I -- I -- I believe. 18 Q: Okay. Thank you. If we turn to the 19 next page it's numbered "12" at the bottom of that and 20 right in the middle of that you have -- your -- your 21 question: 22 "All right. Have they made any 23 statements about why they are there?" 24 And this is relation to the people in 25 occupation. And Wright says:
1651 "Yes, they have. They consider that 2 sacred land and that they also say 3 there's a sacred burial ground on that 4 that's been researched. Is -- is 5 hearsay information allowed at those 6 types of things?" 7 I believe you've told us earlier that that 8 information would be relayed to the Court through the 9 viva voce evidence if would call on the actual hearing 10 for the injunction. 11 A: Yes. 12 Q: And is it your recollection that, in 13 fact, that information was put before Mr. Justice 14 Daudlin? 15 A: Yes. 16 Q: All right. And if I can turn your 17 attention to page 17 and 18. At the bottom of page 17 18 there's your comments at the very bottom. 19 "When we were going through the 20 activities I don't -- did you mention 21 guns as I understand there was some 22 gunfire last night." 23 And Officer Wright would appear to answer 24 you saying: 25 "Yeah Christ is if it were --
1661 Pardon me, let me -- let me try that 2 again. 3 "Yeah Christ if that's like we were -- 4 if we had to give that out, okay, but 5 we had a report of automatic weapon 6 fire in the Park." 7 Did you have any sense that that perhaps 8 might have been at odds with what Officer Carson -- 9 Inspector Carson had told you in the earlier conversation 10 we had listened to? 11 A: I'm sure it didn't occur to me that 12 this was at odds with what I heard earlier. 13 Q: All right. And in any event that 14 didn't figure into the materials that you were preparing, 15 did it? 16 A: No. What I was doing here is 17 rehearsing, more or less, what the officer and I were 18 going to talk about the next morning at eight o'clock at 19 the court house. And then the evidence that he was going 20 to give in court. 21 Q: And it wasn't your position at that 22 point to determine whether or not any of this was 23 verified information? 24 A: No. 25 Q: All right. And if we refer then to
1671 the next page, right in the middle of the page, you have 2 Officer Wright indicating: 3 "Well fuck, right now they've got about 4 eight (8) guys down at the bottom end 5 of the Park where the roads turn and I 6 know you don't know the area but I'll 7 draw it for you so you can see it. 8 McCabe: Right." 9 And then Officer Wright: 10 "They've got about eight (8) guys on 11 the edge of the road with bats in their 12 hands." 13 And you ask him: 14 "Baseball bats." 15 And he goes onto explain that it's a 16 public road and they've trashed a car and that sort of 17 thing. 18 And, similarly, it wasn't your duty I -- I 19 take it to determine whether or not that information was 20 in fact accurate, correct, or corroborated or otherwise 21 verified? 22 A: That's right. 23 Q: Okay. And if we just go to the top 24 of the next page where Officer Wright's remarks continue. 25 He's telling you that:
1681 "You have the Criminal Code offences, 2 of possession of danger -- weapon 3 dangerous and we got four (4) ERT teams 4 and a TRU team and two (2) canine units 5 going down -- down there to do battle 6 right now." 7 And again, I take it, it wasn't your 8 position, as you've indicated earlier, to make any 9 judgement with respect to the appropriateness of what was 10 going on? 11 A: Absolutely not. 12 Q: And on page 21 from the middle of the 13 page from then on you're asking, I suggest, Mr. McCabe, 14 about the prospects of having your documents actually 15 served. 16 A: Yes. 17 Q: And you'll see Officer Wright 18 comment: 19 "No, no, I know what he said." 20 Referring to the discussion that you had 21 earlier with Inspector Linton. 22 "I know what he said, No way, not now." 23 And your comment: 24 "Ah well." 25 And back to Officer Wright:
1691 "We're going to -- we're going to war 2 now. We're not going to be serving 3 anybody." 4 Okay? 5 A: Yes. 6 Q: And I take it that, at that point in 7 time, you would have resigned yourself to the fact that 8 your documents would likely not be served or -- 9 A: That's correct. 10 Q: -- did you have any? 11 A: Yes. 12 Q: All right. In spite of the fact that 13 at the -- at the bottom of the page, you see that Officer 14 Wright made some suggestion that there would perhaps, you 15 know, we could try to serve at the front gates of Camp 16 Ipperwash. 17 A: Right. 18 Q: And did you have any sense, sir, that 19 in fact your documents would be served, having heard 20 those earlier comments? 21 A: I -- I think I was quickly losing 22 confidence in the prospect of the documents being served. 23 Q: All right. 24 A: But I, you know, the -- I think the 25 conversation ends with the idea that they will -- they'll
1701 do it if they can. 2 Q: Okay. Thank you. Back to Inquiry -- 3 pardon me, back to Tab Number 20, and that is the scribe 4 notes I'd referred you to earlier, it's P-426. And if 5 you can look at the time indicated at 21:18 hours, the 6 indication in the scribe notes is that: 7 "Dale Linton called Tim McCabe. Update 8 him as to current problems, therefore 9 it would be difficult for us to go in 10 and serve any documents." 11 A: Yes. 12 Q: And if we turn to Tab 31 of the 13 binder in front of you, that is Inquiry document 1001992, 14 and it's Exhibit P-347, that is a transcript of the 15 conversation as between yourself and Inspector Linton? 16 A: Yes. 17 18 (BRIEF PAUSE) 19 20 Q: And I wonder if we can just go ahead 21 and play that portion of the -- of that conversation that 22 relates to Mr. McCabe? 23 A: If I might ask, we're hearing these 24 conversations in the order in which they occurred -- 25 Q: That is --
1711 A: -- are we? So this is the -- 2 Q: Yes. 3 A: -- the next one, yeah? 4 Q: Right. 5 6 (BRIEF PAUSE) 7 8 Q: And you'll note that the document in 9 front of you, Mr. McCabe, is time stamped at 21:12 hours? 10 A: Yes. 11 Q: Right. 12 13 (AUDIOTAPE PLAYED - TRANSCRIPT BELOW) 14 21:12 HOURS 15 16 MCCABE: Hello. 17 LINTON: Tim. 18 MCCABE: Yeah. 19 LINTON: It's Dale LINTON calling. 20 MCCABE: Hello. 21 LINTON: From Forest. 22 MCCABE: Yes. 23 LINTON: Ah we've got all kinds of trouble up 24 here. 25 MCCABE: Yeah, I was talking to Detective
1721 Sergeant WRIGHT earlier and he 2 mentioned that. 3 LINTON: At the front gate apparently all the 4 woman and children are massing to be 5 moved away and ah telling our guys that 6 there's gonna be big trouble and 7 they've got ah, ah we've already had a 8 vehicle damaged down off the, off the 9 M.N.R. property 10 MCCABE: Right. 11 LINTON: with bats and stuff and ah, they're all 12 down in there, a fairly rowdy group. 13 And ah they've got buses, they've got a 14 bus in there, and a, a ah dump truck, 15 that kind of stuff, they're manning a 16 kiosk. 17 MCCABE: So they're, they're attempting to 18 provoke ah 19 LINTON: Well, yeah. 20 MCCABE: confrontation if you. 21 LINTON: I mean we ah, we were gonna go down and 22 do an arrest and then we thought 23 against it, because if all the people 24 are stock piling inside and in 25 buildings, we don't know whether's it's
1731 ah, you know whether there's gonna be 2 ah an ambush or what, but they were 3 provoking people on the highway, a lady 4 drove down the road, they all stopped 5 her and damaged her vehicle and that 6 kind of stuff and ah well we were going 7 to respond they started massing people 8 inside and manning buildings, so we 9 MCCABE: Yeah. 10 LINTON: we've ah put all that on hold because 11 ah 12 MCCABE: Right. 13 LINTON: you know we figure the potential for 14 danger is really high, of course the 15 front gate up at 21 they're taking all 16 the woman and children out of the 17 place, so they're not doing that 18 because there ah tending to the times. 19 MCCABE: Right. 20 LINTON: So I guess the point I'm getting to is 21 it would be very difficult for us to go 22 in there now 23 MCCABE: Right. 24 LINTON: and serve any kind of a document. 25 MCCABE: Right, well, we, we spoke to, er I
1741 spoke to the Detective Sergeant about 2 that and he ah, and, and it's almost as 3 good if he can explain why it was 4 impossible to do it last night. 5 LINTON: Okay. 6 MCCABE: Yeah, so that's ah, you know 7 absolutely, I mean don't risk anybody's 8 ah life or limb over that, ah and ah 9 you know if he points out ah they know, 10 they don't know about tomorrow morning, 11 but they certainly know there's going 12 to be injunction proceedings. 13 LINTON: Yeah, I mean, like I said earlier that 14 was in the newspaper that ah. 15 MCCABE: If, if things calm down over the course 16 of the night or you know early in the 17 morning or something, you get a change 18 to talk to somebody, 19 LINTON: Yeah. 20 MCCABE: ah you know either hand them the paper 21 or ah, ah, you know just sort of on the 22 bases that ah you'll be interested in 23 this. There's gonna be a court 24 proceeding in Sarnia tomorrow morning, 25 and, and you should probably, you might
1751 want to consider being there. 2 LINTON: Yeap. 3 MCCABE: ah or just tell them verbally, you know 4 if you get a chance, but certainly 5 don't ah you know, don't take nay 6 chances obviously. 7 LINTON: Oh, okay. 8 9 MCCABE: Yeap, okay. 10 LINTON: Thanks 11 MCCABE: See ya, bye bye. 12 13 CONTINUED BY MR. DONALD WORME: 14 Q: And do you have any recollection, Mr. 15 McCabe, of that conversation? 16 A: I can't say that I have a clear 17 recollection of that conversation but it, you know, 18 certainly consistent with the impression that I came away 19 with that -- that night. 20 Q: And do you recall whether or not you 21 may have had any further conversations that -- that 22 night, that is the night of September the 6th, 1995 with 23 the OPP or with anyone in relation to this matter? 24 A: Well, as I said, I don't really 25 recall very well these conversations so, you know, I
1761 couldn't have told you, for example, which officers or 2 how many conversations I had or really at what point in 3 the afternoon or evening I had them, except I did have a, 4 you know, recollection of -- of, you know, on in the 5 middle of the evening having conversations and -- and 6 being apprised of the fact that it was very unlikely that 7 there was going to be any service. 8 So beyond that, you know, I'm -- I'm 9 assuming you have a complete record here of whatever 10 conversations took place. I certainly don't recall any 11 further conversations with OPP officers or with anyone 12 else other than Elizabeth Christie. 13 Q: Okay. Thank you for that. Just one 14 (1) moment. 15 16 (BRIEF PAUSE) 17 18 Q: On the very early morning hours of 19 September the 7th, at Tab 32 in the book of documents in 20 front of you, apparently this is -- I do not have a 21 document, Mr. Commissioner, with a Inquiry document 22 number on it, but it is a -- a -- what purports to be a 23 transcript of a voice mail that was left by Acting 24 Detective Sergeant Mark Wright and perhaps I just might 25 read that into the record if I may -- the -- unless Mr.
1771 Millar is able to locate that for us? 2 The message -- the voice mail of course 3 says, Please record your message. At the end of your 4 message press "1". And there's a message from Mark 5 Wright, it says: 6 "Tim, it's Mark Wright. I sure hope 7 this is your house and not your office. 8 If you're there pick up, it's urgent. 9 If not, I guess I'll just leave this 10 message here that -- that we have one 11 (1) armed confrontation." 12 I think we have that. Mr. Millar does 13 have a -- has located this item and can play it. 14 15 (AUDIOTAPE PLAYED) 16 17 MR. DONALD WORME: Okay. 18 19 (AUDIOTAPE PLAYED) 20 21 CONTINUED BY MR. DONALD WORME: 22 Q: It -- it's very short and perhaps 23 I'll just read it in, Mr. Commissioner? 24 "It's urgent. If not, I guess I'll 25 just leave this message here that we
1781 have armed confrontation. We've -- one 2 (1) Canadian native is dead, one (1) is 3 probably going to die, and one (1) is 4 going to live. None of our officers 5 were killed. 6 Okay, this went down about -- what time 7 was that? (Inaudible). I don't know. 8 I don't even know what time this 9 happened. It was dark out, that's the 10 best I can do for you right now. 11 So I'll see you at eight o'clock in the 12 morning so you're forewarned if you get 13 this. Les is here standing side by 14 each with me and it's 2:17 in the 15 morning. Okay? Bye." 16 Did you -- do you recall ever receiving 17 that secure voice mail, Mr. McCabe? 18 A: I don't -- I don't recall receiving 19 it. 20 Q: All right. Can you tell us what -- 21 perhaps before we move on I'll -- I'd ask that that 22 transcript be made the next -- next exhibit, please, 751? 23 THE REGISTRAR: P-751, Your Honour. 24 25 --- EXHIBIT NO. P-751: Message from detective staff
1791 Sgt. Mark Write to Tim McCabe 2 Re. Wright (02:13). 3 4 CONTINUED BY MR. DONALD WORME: 5 Q: Now, you -- you had worked late into 6 the night as we understand -- 7 A: Right. 8 Q: -- on the 6th and into the early 9 morning hours perhaps of the 7th of September 1995 10 preparing the -- the documents, the motion, notice of 11 motion, and attendant documents? 12 A: I can't remember how late I was at 13 the office. I would have had to get the last Go Train, I 14 think, which is a little after midnight out of Union 15 Station to go home; I live in Mississauga. So whether it 16 was the 11:37 or whether it was the 12:17 or -- I -- I'm 17 not sure. I would have gone home, tried to get some 18 sleep and I -- I know I had to be up very early in the 19 morning. 20 Elizabeth, who lived in Toronto somewhere, 21 was going to pick me up in the parking lot of a hotel 22 just off the 401 at, I guess, Erin Mills Parkway and -- 23 and the 401 so when she arrived I was standing there in 24 the parking lot with my -- my road bag, my briefcase and 25 my pillow.
1801 Q: All right. And just before we move 2 on, Commissioner, I'd ask that the CD containing the six 3 (6) conversations be marked as the next Exhibit P-752, 4 please. 5 6 --- EXHIBIT NO. P-752: Tim McCabe conversations CD. 7 Sept06/95, 8 14:36-Carson/McCabe 9 15:59-Carson/McCabe,16:06-Car 10 son/McCabe, 11 19:34-Linton/McCabe-20:18-Wri 12 te/McCabe,21:11-Linton/McCabe 13 14 CONTINUED BY MR. DONALD WORME: 15 Q: And I take it you would have 16 eventually arrived home and can you tell us what -- what 17 you're -- what happened next? 18 A: Well, I think I went to bed. I tried 19 to get some sleep, got up in the morning and -- and drove 20 up to this hotel parking lot where Elizabeth and I had 21 arranged that she was going to pick me up and she was 22 going to drive to Sarnia. 23 Q: And in the course of that drive, did 24 you learn something? 25 A: Yes, I -- I tried to sleep in the
1811 back seat, and at some stage along the 401 Elizabeth 2 turned on the radio and I remember being sort of 3 irritated with the fact that that was on and I was going 4 to tell her to turn it down or please turn it off or 5 something like that, and then we heard the news about the 6 -- about this -- these terrible events. 7 Q: Okay. 8 A: On the car radio. 9 Q: All right. Did you have any -- any 10 thoughts about what you had just heard and the matter 11 that you were attending to the Court in Sarnia for? 12 A: Well, I can't remember with any great 13 particularity. I'm sure it was dismay. 14 Q: So you got to Sarnia, and just go 15 ahead and let us know what happened? 16 A: Well, we got to Sarnia and, you know, 17 I -- many of the particulars I can't remember, but I 18 noticed from some of the earlier documents that the Crown 19 Attorney was going to let us into the Courthouse around 20 eight o'clock and I know that either shortly after we 21 arrived, or they were already there, were Les Kobayashi. 22 I think the idea was that Mr. Kobayashi 23 from the Ministry of Natural Resources was going to meet 24 with Elizabeth. He was going to make any last minute 25 corrections to his Affidavit and he was going to sign it.
1821 We had earlier faxed to the Registrar of 2 the court in Windsor, I believe, the materials. But, of 3 course, it was an unsworn affidavit of Mr. Kobayashi and 4 I don't think it had any -- I don't believe it had any 5 attachments. 6 I probably have -- if I know that, it's 7 probably because I've learned it recently from -- from 8 looking at materials. 9 And I was going to talk to Detective 10 Sergeant Wright prior to our -- our appointment with the 11 Judge at 9:00 a.m. 12 Q: Okay. 13 A: And I -- you know, I think we carried 14 that out. 15 Q: And if you look at Tab 35, Mr. 16 McCabe, there is a copy of the Motion record. It's 17 marked as P-551. 18 You had occasion to review this document, 19 sir? 20 A: Yes. 21 22 (BRIEF PAUSE) 23 24 Q: And if we look, firstly, just at the 25 first -- at the cover page there's a name Anthony O'Brien
1831 George has been obliterated. 2 A: Yes. 3 Q: Right. And that would have been done 4 on the morning of -- of the 7th before this was presented 5 to the Court? 6 A: I -- I can't recall whether this is 7 stroked out on this copy before the events -- before the 8 appearance before the -- before Justice Daudlin. 9 I know that in the course of, you know, 10 the order, it was agreed that, you know, that it -- it -- 11 it was necessary and right that the -- his name be 12 deleted from the title of proceedings, yes. 13 Q: Okay. And if I can just refer you to 14 the page that's marked "7" at the top of that same 15 exhibit there's item number 3, at the first full 16 paragraph, which is part of the -- the relief that was 17 sought. 18 A: Yes. 19 Q: And I had asked you earlier this 20 morning when we were looking at the Motion record of the 21 Beardmore matter in which you also acted as counsel, 22 these two (2) provisions appear very much the same, do 23 they not? 24 A: Yes. 25 Q: Okay. And is it possible, sir, that
1841 this particular provision was taken from the template of 2 your Beardmore materials? 3 A: I believe that's correct, yes. 4 Q: All right. You wouldn't find this, 5 accordingly, an unusual provision? 6 A: No. 7 Q: And the effect -- or the -- the 8 objective that you mean to achieve with this was what, 9 sir? 10 A: Well the intention was that if the 11 people did indeed comply with paragraphs 1 and 2 and 12 leave the premises, then officials of the Government 13 would be able to remove any property, any items that were 14 left behind. 15 As I say, I -- it seems to me very likely 16 that what I've done is simply crib this from the notice 17 of motion and the order in the Beardmore case, though 18 there are differences. I think in the -- in the 19 Beardmore case, I refer to the Ministry of Natural 20 Resources. Here I refer to the Government of Ontario. 21 Q: Okay. Was there any reason for -- 22 A: Or any minister or deputy minister 23 thereof. 24 Q: And is there any reason today, sir, 25 that you can recall as to why you might have drafted this
1851 in a -- what I'm going to suggest is a somewhat broader 2 fashion? 3 A: No, you know, I -- I mean I'm not 4 sure whether they're as a result of some conversation 5 with somebody at the Ministry of Natural Resources, you 6 know, we'd decided to do it this way or whether this just 7 comes from my own fertile imagination. 8 But, you know, I -- clearly I'm 9 responsible for its -- for its appearance in the -- in 10 the document and you know, it -- it comes from me. I 11 don't remember whe -- if anybody suggested that the 12 earlier provision be broadened, I think it would have 13 been the Ministry of Natural Resources legal staff, but 14 I'm not at all sure that that happened. 15 Q: Thank you. At Tab 36, Mr. McCabe, is 16 a copy of what purports to be a transcript of the court 17 proceedings before the Honourable Mr. Justice Daudlin at 18 Sarnia on the 7th of September, 1995. 19 A: Yes. 20 Q: And you are indicated as appearing 21 together with E. Christie as counsel for the plaintiffs? 22 A: Yes. 23 Q: And have you had a chance to take a 24 look at this document? 25 A: I -- I did about a week ago, yes.
1861 Q: All right. And did that assist you, 2 sir, first of all in -- in recalling the events of that 3 day and the arguments that were -- that were provided? 4 A: Yes to, you know, I was able to read 5 a verbatim account, I take it, of the events of that day. 6 Q: And in looking at the -- at the 7 transcript of that is there anything in there that does 8 not accord or -- or is otherwise inconsistent with your 9 recollection as has been refreshed? 10 A: No. 11 Q: All right. Perhaps we can mark that 12 as the next exhibit, 753. 13 COMMISSIONER SIDNEY LINDEN: Is this 14 already an exhibit? 15 MS. ANDREA TUCK-JACKSON: Yes, it is, 16 it's 737. 17 MR. DONALD WORME: Evidently it is and I 18 thank My Friends for that, 7? 19 MS. ANDREA TUCK-JACKSON: 37. 20 MR. DONALD WORME: Thank you. 21 22 CONTINUED BY MR. DONALD WORME: 23 Q: And at Tab 37 there is a fax cover 24 sheet initially, it's Inquiry Document 1003482. The 25 sender is -- it is from yourself and Elizabeth Christie
1871 but the sender is Jackie Edwards who I think you 2 confirmed earlier is your assistant in Toronto? 3 A: Yes. 4 Q: And this was sent to Eileen Hipfner 5 at Legal Services for ONAS? 6 A: Yes. 7 Q: And it is the handwritten endorsement 8 of Mr. Justice Daudlin? 9 A: Yes. 10 Q: All right. And at Tab 38, it is 11 Exhibit P-662. I would suggest that that is an 12 interpretation or a transcription of Mr. Justice 13 Daudlin's endorsement? 14 A: It appears to be, yes. Prepared by 15 Leith Hunter. 16 Q: Okay. 17 COMMISSIONER SIDNEY LINDEN: I don't 18 think the handwritten endorsement is an exhibit. 19 MR. DONALD WORME: Perhaps we can have 20 that marked as the next one please, Commissioner. It 21 would be 753. 22 THE REGISTRAR: That's 1003482. 23 COMMISSIONER SIDNEY LINDEN: 1003482. 24 MR. DONALD WORME: Yes. 25 THE REGISTRAR: Thank you. 753, Your
1881 Honour. 2 MR. DERRY MILLAR: What's the document 3 number? 4 THE REGISTRAR: 1003482. 5 COMMISSIONER SIDNEY LINDEN: I don't 6 recall this being marked an exhibit before. 7 8 --- EXHIBIT NO. P-753: Document Number 1003482. 9 Urgent fax from Tim McCabe to 10 Eileen Hipfner Re. 11 Endorsement of Justice 12 Daudlin on instructions 13 motion Sept. 07/'95. 14 15 CONTINUED BY MR. DONALD WORME: 16 Q: And we -- we note that the interim 17 injunction was granted and it would be in force and 18 effect up until September the 11th of 1995 -- 19 A: Yes. 20 Q: -- which was the -- the Monday 21 following. 22 A: Yes. 23 Q: All right. 24 A: And also it's -- I believe it's 25 enforcement of the interim injunction to be stayed,
1891 pending the return date. 2 Q: Okay. There were other items within 3 that endorsement, Mr. McCabe, that gave you some -- some 4 cause for pause? 5 A: Yes. 6 Q: Some cause for concern? 7 A: Well, yes. When Justice Daudlin read 8 his Order, the business about service from the air struck 9 us as probably a -- not such a good idea in the 10 circumstances. 11 And, as I recall, Detective Sergeant 12 Wright was -- was quite vehement on that point. 13 Q: Okay. 14 A: Just in conversation with Elizabeth 15 and I. 16 Q: And as a result of that matter 17 striking you as -- of some concern, what did you do? 18 A: I know that on at least one (1) 19 occasion during that afternoon, at least one (1), perhaps 20 two (2) occasions, we visited with Justice Daudlin in 21 Chambers in order to prevail upon him to alter that in 22 some way. 23 He had, as I recall, this may even be on 24 that transcript, but as I recall he had, you know, kindly 25 agreed that he would be there throughout the day for
1901 purposes of settling the -- the -- the final order. 2 And I know that late in the afternoon of 3 that Thursday, we appeared before him in his Chambers for 4 that purpose. 5 Again, I'm -- I'm reminded, I don't have 6 an independent recollection of this, but we had actually 7 produced two (2) alternative orders for Justice Daudlin's 8 consideration, one which was a -- was sort of a straight, 9 you know, recital, reproduction of what he had said. 10 The other was what we were suggesting some 11 amendments that he -- that he may consider. 12 So, on at least that occasion when we went 13 to see His Honour about changing the -- or about settling 14 the order, we made a submission or I made a submission to 15 the effect that it might be better to, you know, to 16 change the -- this idea about the service from air. 17 It's possible that even earlier that 18 afternoon, we had made a -- a request of him to do that, 19 but I'm not certain of that aspect of it. 20 Q: Okay. And if we look at Tab 39, 21 which is Exhibit P-442 and in particular page 6 of that, 22 it is a telefax from -- of the order, telefax of a copy 23 of that order. 24 And at page 6 of that copy, under number 25 8:
1911 "This Court orders that service of this 2 order may be effected upon the 3 occupants of the Park by..." 4 And it goes on to say, first of all: 5 "...by posting a copy of the document." 6 And then towards the middle of that same 7 paragraph: 8 "In the event that such posting is 9 deemed not possible or safe, the 10 dropping of ten (10) copies of this 11 order and the documents used in this 12 motion, by aircraft." 13 And it specifies a time shall be deemed 14 adequate service, and that was the parts that you've just 15 referred us to, that were of concern? 16 A: Yes, 8(b). 17 Q: As a result of that concern, what did 18 you do, Mr. McCabe and... 19 A: Well, you know, again the -- the 20 sequence of telephone conversations and who it was that I 21 actually spoke to as distinct from Elizabeth speaking on 22 the phone to people in Toronto, I don't have a -- a -- a 23 good recollection of. 24 But I know that throughout several hours 25 that afternoon, there were -- we -- we were aware of the
1921 fact that consideration was going on back in Toronto as 2 to what should be done about the order. 3 I'm sure that the people in Toronto had a 4 great deal of other, and, you know, in many ways more 5 pressing matters, to -- to be -- to be concerned about at 6 that stage. 7 But they were also concerned about this 8 order and whether we -- whether we were waiting for 9 instructions or whether, you know, we had -- we had 10 advised them that Justice Daudlin will be settling the 11 order, you know, in the latter part of the afternoon. 12 And -- and somebody thought that that was 13 a good idea and perhaps we could make a -- make a change 14 I don't know, but there was -- I know that there were, 15 you know, frequent telephone conversations back and forth 16 between Elizabeth and I in Sarnia and Toronto. Now, 17 whether that, you know, who -- who it was at the other 18 end of the phone for most of that I don't know. 19 I do know that at the end of the day, 20 after Justice Daudlin had declined our suggestion that 21 the order be amended in the ways that we were suggesting, 22 we were told -- we were instructed to proceed the next 23 day before another justice, in order to achieve a 24 variation of the -- of the -- of the order. 25 And, you know, I -- I -- I can't recall
1931 whether it was to the, you know, to the effect that, And 2 that ought to be done in London on -- on your way back 3 from Sarnia tomorrow or whether that was something that 4 we concluded, I'm not sure. But we did receive the 5 instruction to proceed on the variation which was a new - 6 - a new one on me. 7 You know I had never -- I had never run 8 across that or even that possibility and I'm sure that 9 would not have occurred to me that that was even possible 10 or -- or -- or -- to do, but. 11 Q: And when you say it was "unusual" and 12 that had not occurred to you, what are you referring to? 13 A: The idea of going before a second 14 judge to vary the first judge's order. 15 Q: All right. 16 Do you know where you would have received 17 the instructions from, in order to proceed in that 18 fashion? 19 A: We were in Sarnia. 20 Q: Or to seek the variance even? 21 A: We were still in the courthouse in 22 Sarnia where we had been all day and now it's -- I don't 23 know, 6:00 p.m. or something like that or, you know, it's 24 -- it's possible that a little -- a little while before 25 that is when we received the instructions to do that.
1941 Q: And do you know who that would have 2 came from? 3 A: I don't really, no. 4 Q: All right. You had some assistance 5 in terms of preparing your documents then. I take it 6 that you took those instructions, you acted upon them, 7 you'd begun preparations for seeking a variance of Mr. 8 Justice Daudlin's order? 9 A: That's right. We -- we -- we drove 10 that evening from Sarnia to London, this time with me 11 wide awake, and we -- we -- we checked into a hotel in 12 London. And Leah Price, who was another lawyer in the 13 Crown Law Office Civil, was -- you know, very kindly sent 14 us, as a I recall, I think, three (3) different orders 15 that we could consider presenting before the -- before 16 the judge in London the next day. 17 Q: And perhaps I can refer you to Tab 42 18 of the book of documents? It's Inquiry Document 1006006. 19 Do you have that in front of you, Mr. 20 McCabe? 21 A: Yes. 22 Q: And that's a memorandum directed to 23 yourself from Leah Price? 24 A: Yes. 25 Q: Attaching three (3) versions of a
1951 notice of motion? 2 A: Yes. 3 Q: All right. Commissioner, I'd ask 4 that this be made the next exhibit, but I'd also ask that 5 the telephone number, the home telephone number of the 6 author of this document be struck out of there, as well 7 as Andrew McDonald's. There are two (2) phone numbers in 8 the last full paragraph. 9 THE REGISTRAR: P-754, Your Honour. 10 11 --- EXHIBIT NO. P-754: Document Number 1006006. 12 Memo to Tim McCabe from Leah 13 Price attaching three 14 versions of a notice of 15 motion, Sept.07/'95. 16 17 CONTINUED BY MR. DONALD WORME: 18 Q: And those are the three (3) versions 19 that you would have seen and used in preparing your 20 variance application? 21 A: Yes. I can't recall precisely the 22 one we -- we proceeded with, but there's probably an 23 order here and -- that we'll be coming to which will shed 24 some light on that. 25 Q: Okay. This would have now concluded
1961 your activities for the 7th of September 1995, did it? 2 A: Yes. 3 Q: And you've told us you were now in 4 London and in the process of making ready to attend 5 before another judge -- 6 A: Yes. 7 Q: -- the following day September the 8 8th? 9 A: Yes. 10 Q: All right. At Tab 43 there is a 11 notice of motion, Inquiry Document 1005996. 12 13 (BRIEF PAUSE) 14 15 A: Yes. 16 Q: And you'll now see that of the three 17 (3) versions that were provided to you by Leah Price, I 18 take it that this is the one that was ultimately 19 proceeded on? 20 A: I -- I take it that's true, subject 21 to verification by looking at the transcript and the 22 order that follows. 23 Q: This is already P-739. 24 A: I should say also that in addition to 25 the -- to the aircraft service idea, another part of
1971 Justice Daudlin's order that was thought not to be a good 2 idea by the, you know, the Ministry or whoever it was in 3 Toronto who was instructing us, was the provision that 4 you see -- you see in the notice of motion at -- at my 5 Tab 43 -- 6 Q: Yes. 7 A: -- it's Inquiry Document 1005996. 8 That notice of motion you see that we're seeking a couple 9 of things, one is deleting from paragraph 7 the words: 10 "But this order is not to be 11 interpreted as precluding such action 12 as may be necessary outside of the 13 confines of the Park to preserve public 14 peace and safety and to assure safe 15 passage of the public upon the public 16 roadways surrounding the Park and Camp 17 Ipperwash." 18 This is a provision that Justice Daudlin 19 included because he thought it would be helpful. But I - 20 - I think that the -- the officials in Toronto who 21 considered this, thought that, well, it may not be 22 helpful because it -- it might be possible to read into 23 it something to the effect that, you know, that -- that 24 it does preclude some other action. 25 So it was our instruction to -- to have
1981 this deleted too, as I recall. 2 Q: Okay. And on the -- on the second 3 page of that, the substituting for paragraph 8, and that 4 was the paragraph we spoke to just earlier, being the 5 service by aircraft. 6 A: Yes. 7 Q: That was what you were seeking. That 8 is: 9 "The court orders that service of this 10 order is to be effected upon the 11 occupants of the Park by radio or 12 television or loud hailer in the manner 13 to be determined by the Ontario 14 Provincial Police." 15 A: Yes. 16 Q: Okay. What was the outcome of this 17 application, Mr. McCabe? 18 A: I can't recall except that I know 19 that there was some variation which made the aircraft 20 service optional, as I recall, rather than -- rather than 21 mandatory. 22 Q: Okay. Well we'll come to the order 23 in a moment. 24 And if I can just perhaps -- 25 A: Right.
1991 Q: -- ask you to turn to Tab 44 which is 2 a transcript of the proceedings on that motion. I take 3 it you can recall appearing before the Honourable Mr. 4 Justice Flynn on September the 8th at London, Ontario? 5 A: Very vaguely. 6 Q: Okay. You were noted together with 7 Ms. Christie as counsel for the plaintiffs. 8 A: Yes. 9 Q: And in -- and in that instance, 10 Inspector John Carson had appeared to provide, I take it, 11 viva voce evidence in support of the application for 12 variance? 13 A: Yes. Yes. I would not have 14 remembered that it was Carson but I -- I certainly know 15 that we had -- I think there were two (2) police officers 16 who -- who visited us that day in the London court house. 17 Q: All right. I'd ask that that be 18 marked as the next exhibit please. Pardon me, I'm -- I'm 19 again told that this is Exhibit P-740. 20 Thank you, Ms. Tuck-Jackson. 21 22 CONTINUED BY MR. DONALD WORME: 23 Q: If we turn to the next tab at 45, 24 that is P-443, it appears to be a telefax copy of the 25 order.
2001 A: Yes. 2 Q: And that is the order of variance 3 that you had received from Mr. Justice Flynn? 4 A: Yes. 5 Q: All right. 6 7 (BRIEF PAUSE) 8 9 Q: And at Tab 46 is a Motion record. 10 11 (BRIEF PAUSE) 12 13 Q: It's marked as P-741, and this was a 14 Motion that was to occur on the morning -- pardon me, on 15 Monday, September the 11th, I guess, at 10:00 a.m.; it is 16 the morning? 17 A: Yes. 18 Q: And the reason for this is that Mr. 19 Justice Daudlin's previous Order was to be spent as of 20 that day? 21 A: Yes. And he had -- I think as part 22 of his Order, we were to be back in Court on September 23 the 11th. 24 Q: Hmm hmm. 25
2011 (BRIEF PAUSE) 2 3 Q: And can you tell us what happened 4 then, in be -- in that intervening period as between the 5 time when you appeared in London as to the time that you 6 would have showed up then in Court on the morning of 7 September the 11th, 1995 with this Motion in hand. 8 A: Right, it -- well, it was again late 9 in the afternoon of the Friday that -- when we eventually 10 received Justice Flynn's Order. 11 Again the -- you know, the precise 12 sequence I don't know, but -- but I'm almost certain that 13 we had the assistance of the Crown Attorney's office in 14 London in typing documents. And accordingly I think that 15 that's probably the origin of the typed order that you 16 see entered. 17 And I -- it's interesting to me that it 18 says it was entered at Sarnia. Actually, it was entered 19 at the office in -- in London but we may have had to, 20 sort of, negotiate that. You know, this is a Sarnia 21 proceeding, but we're here today. 22 But, I know that be -- before the end of 23 the day, we had in fact, filed that document in London or 24 at least that's my recollection. 25 Then Elizabeth and I drove back to Toronto
2021 and she left me off at -- at my car in the -- in the 2 parking lot of the hotel. 3 Then Saturday at the office, getting ready 4 for the return of the Motion on the Monday, and I know 5 that at some point in the afternoon, I think, of the 6 Saturday, some -- by arrangement, some officers of the 7 OPP came to pick up the materials that we were seeking to 8 have served on the people in the Park in relation to the 9 proceeding that was going to take place on the Monday 10 morning. 11 So, they picked up that -- that material 12 in Toronto and I think they have, like, a shuttle service 13 between the various Detachments and it was to be 14 delivered to the OPP in Forest for purposes of service. 15 And I'm almost certain it was never 16 served. On the Sunday, again in the office, in the 17 course of the afternoon, I got a -- I received a phone 18 call. 19 I think, you know, I'm pretty sure it was 20 Larry Taman saying that you have to go to Court tomorrow 21 and withdraw the -- withdraw the Motion. 22 Q: Okay. 23 A: And at that point, as I recollect, I 24 drafted a very short statement to be read in Court the 25 next day. I think I probably phoned Mr. Taman again,
2031 read it to him. He had some minor amendments which I 2 made and that's the statement that was read in Court on 3 the -- on the Monday morning. 4 Q: If you refer to Tab 48 in the -- in 5 the book of documents in front of you, Inquiry Document 6 Number 1003722. 7 8 (BRIEF PAUSE) 9 10 Q: And there's a -- a fax -- fax cover 11 sheet on that dated September the 12th, but... 12 13 (BRIEF PAUSE) 14 15 Q: And the actual statement itself is 16 contained on the second page of that, Mr. McCabe. 17 Do you see that? 18 A: Yes. 19 Q: It's -- it's titled at the top, 20 Ontario AG and MNR v George et al. Statement to be Read 21 in Court September the 11th, '95. 22 A: Yes. 23 Q: And you've had a chance to look at 24 that statement? 25 A: Yes.
2041 Q: And that statement incidentally, 2 Commissioner, is marked as 7 -- P-743, and that is the 3 statement that... 4 5 (BRIEF PAUSE) 6 7 Q: And do you -- do you recall, sir, if 8 this is the actual statement that was -- that was filed? 9 I'm informed by My Friend Ms. Twohig that 10 there is a slight difference, perhaps, between the -- 11 COMMISSIONER SIDNEY LINDEN: The format. 12 MR. DONALD WORME: Between -- yes, not 13 only the format, but perhaps even in wording, between the 14 document that's been actually filed as an exhibit and the 15 copy that I have here. This may well be the copy that 16 went out before the amendments that the Witness has 17 spoken to, had been made. 18 THE WITNESS: No, I -- I'm not sure what 19 the differences are, but the amendments that I mentioned, 20 I don't think -- I don't think were -- there was no 21 exchange of a typed version of this statement. 22 What I -- what I think I remember is 23 writing out a short statement in my office on that Sunday 24 afternoon, calling back Mr. Taman and saying this is what 25 I propose and he saying, well, change this or that.
2051 There were a couple of small things like 2 that and I made that change. 3 The -- anything that was read in Court the 4 next day was the version with Mr. Taman's changes. I 5 can't tell you what those changes were, but I think they 6 were, sort of, you know, fairly minor as I recall them. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. DONALD WORME: 11 Q: The balance of the documents in -- in 12 the binder in front of you, sir, at Tab 49, is an e-mail 13 dated September the 15th of 1995 from Leith Hunter. 14 I guess I should ask you simply whether or 15 not you have any recollection of seeing this. I know 16 you've already testified that you did not have e-mail 17 access. 18 A: Right. I don't remember seeing this, 19 no. 20 21 (BRIEF PAUSE) 22 23 Q: At Tab 50, it's Inquiry document 24 1011626, support group meeting of September the 18th; do 25 you have that?
2061 A: Yes. 2 Q: All right. And you'll note in the 3 first column it is a -- a chart that Tim McCabe and 4 Elizabeth Christie from MAG, and it looks like you have 5 some responsibilities relative to Court documents? 6 A: I -- yeah, I don't recall the 7 document or, you know, I don't recall, actually, working 8 on this matter -- 9 Q: Okay, fair enough. 10 A: -- after, you know, the 11th of 11 September. 12 Q: Okay. Perhaps I can refer you then 13 to Tab 51. It is a memo from Elizabeth Christie to 14 yourself. 15 A: Yes. 16 17 (BRIEF PAUSE) 18 19 Q: And that memo was simply meant to 20 address the issue of whether delay on Ontario's part in 21 pursuing an interlocutory injunction against the 22 occupants of the Park would lead to the relief being 23 denied. 24 I take it from you earlier comment that 25 you have no recall of seeing this or doing anything in
2071 relation to that particular issue. 2 A: I don't. Clearly Elizabeth has been 3 doing some research but, you know, what occasioned that I 4 -- you know, I don't -- I don't recall. 5 Q: And given -- given again those 6 comments, sir, I take it you have no recall of other 7 memoranda and such dealing with the issue around the 8 prospects of a burial ground within the Park boundaries? 9 A: I remember, distinctly, the following 10 week, I think, Mr. Irwin, the Federal Minister finding or 11 -- or some of the people in his ministry finding 12 documents that had to do with a burial ground in -- in 13 the Park. Documents dating from the 1930's, yeah. 14 Q: All right. I don't have any further 15 questions for you Mr. McCabe, in-chief. I do know that - 16 - that Ms. Tuck-Jackson of the OPPA has undertaken to 17 have a CD burned of the voice message. 18 Oh, it's already done? If we could just - 19 - we're just going to play that, Commissioner, and then 20 enter that as an exhibit and that would be -- all I would 21 propose with respect to examination-in-chief with Mr. 22 McCabe. 23 COMMISSIONER SIDNEY LINDEN: That's 24 instantaneous service. 25
2081 (BRIEF PAUSE) 2 3 MR. DONALD WORME: Ms. Andrea Tuck- 4 Jackson with the OPP has kindly undertaken to -- to 5 provide this for us and we thank her for that. 6 7 (AUDIOTAPE PLAYED) 8 9 MR. DONALD WORME: All right. Perhaps if 10 we could have that marked as an Attendant Exhibit. We've 11 already marked the transcript of that as 751. 12 THE REGISTRAR: P-755, Your Honour. 13 MR. DONALD WORME: Okay. 14 COMMISSIONER SIDNEY LINDEN: P-755. 15 MR. DONALD WORME: All right. 16 17 --- EXHIBIT NO. P-755: CD of Mark Wright's message 18 for Tim McCabe 2:12 a.m. 19 September 07/'95. 20 21 CONTINUED BY MR. DONALD WORME: 22 Q: And lastly, Mr. McCabe, we have asked 23 other witnesses that have appeared here as to whether or 24 not they might have any comments with respect to the 25 mandate of -- of the Commission and to assist the
2091 Commissioner at the end of the day to make 2 recommendations as to how this sort of situation might be 3 avoided -- 4 A: Hmm hmm. 5 Q: -- avoided in the future. If you 6 have any comments we'd certainly -- I'd be prepared to 7 hear those now. 8 A: No. I -- I don't think so. Purely 9 on the basis that I'm not qualified I don't think to -- 10 to offer anything that's very useful. You know, first of 11 all, you know, I -- I don't consider myself imminently 12 involved as, for example, the George Family or -- or as 13 for example, the Ontario Provincial Police officers would 14 be. 15 Secondly, I -- I, you know, I don't have - 16 - I'm not qualified as an expert in any way in any of the 17 matters, I don't think, that are before the Commission. 18 And thirdly, I -- I haven't and -- heard 19 -- neither as anyone at this point, but I haven't heard 20 all of the evidence and so, you know, in light of those 21 factors I -- you know, I think it would be probably 22 presumptuous for me to try and pontificate on these 23 matters. 24 Q: Thank you for that, Mr. McCabe. That 25 -- that is it in-chief, Mr. Commissioner, I suppose we
2101 can probably ask the Parties as to -- and get some sense 2 as to who would want to cross-examine and the time that 3 we might anticipate. 4 COMMISSIONER SIDNEY LINDEN: Can we do 5 our usual canvassing to see who wishes to examine and how 6 long they will be? 7 8 (BRIEF PAUSE) 9 10 COMMISSIONER SIDNEY LINDEN: Mr. 11 Downard...? 12 MR. PETER DOWNARD: Fifteen (15) minutes 13 to half an hour, sir. 14 COMMISSIONER SIDNEY LINDEN: Ms. 15 Horvat...? 16 MS. JACQUELINE HORVAT: Ten (10) minutes. 17 COMMISSIONER SIDNEY LINDEN: Mr. 18 Smith...? 19 MR. IAN SMITH: I'd like to reserve two 20 (2) or three (3) minutes just in case my questions aren't 21 asked. 22 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 23 MR. DERRY MILLAR: Commissioner, for the 24 record Ms. Horvat I think said -- 25 MS. JACQUELINE HORVAT: Ten (10) minutes.
2111 MR. DERRY MILLAR: -- ten (10) minutes 2 and Mr. Smith two (2) to three (3) minutes. 3 COMMISSIONER SIDNEY LINDEN: Just for the 4 record. 5 MR. DERRY MILLAR: For the transcript. 6 COMMISSIONER SIDNEY LINDEN: Ms. 7 Perschy...? 8 MS. ANNA PERSCHY: Approximately half an 9 hour, sir. 10 MR. DERRY MILLAR: Ms. Perschy said 11 approximately a half an hour. 12 COMMISSIONER SIDNEY LINDEN: Ms. Tuck- 13 Jackson? 14 MS. ANDREA TUCK-JACKSON: Approximately a 15 half an hour. 16 MR. DERRY MILLAR: Ms. Tuck-Jackson, one- 17 half hour. 18 COMMISSIONER SIDNEY LINDEN: Yes...? 19 MS. JANET CLERMONT: Mr. Sulman has asked 20 me to -- 21 COMMISSIONER SIDNEY LINDEN: Ms. 22 Clermont...? 23 MS. JANET CLERMONT: -- attend. 24 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 25 didn't hear you.
2121 MS. JANET CLERMONT: Mr. Sulman has asked 2 me to reserve ten (10) minutes for Marcel Beaubien. 3 MR. DERRY MILLAR: Mr. Sulman ten (10) 4 minutes for Mr. Beaubien. 5 COMMISSIONER SIDNEY LINDEN: And Mr. 6 Alexander...? 7 MR. BASIL ALEXANDER: Two (2) to three 8 (3) hours. 9 MR. DERRY MILLAR: Mr. Alexander, two (2) 10 to three (3) hours. 11 COMMISSIONER SIDNEY LINDEN: And Mr. -- 12 Mr. Rosenthal...? 13 MR. PETER ROSENTHAL: About an hour and a 14 half depending upon what happens with Mr. Alexander. 15 COMMISSIONER SIDNEY LINDEN: Depending on 16 how it goes. 17 MR. DERRY MILLAR: Mr. Rosenthal, an hour 18 and a half depending on what happens with Mr. Alexander. 19 COMMISSIONER SIDNEY LINDEN: Mr. 20 Scullion...? 21 MR. KEVIN SCULLION: Thirty (30) minutes. 22 MR. DERRY MILLAR: Mr. Scullion, thirty 23 (30) minutes. 24 COMMISSIONER SIDNEY LINDEN: And, Mr. 25 George...?
2131 MR. JONATHAN GEORGE: Half an hour. 2 MR. DERRY MILLAR: Mr. George a half an 3 hour. 4 COMMISSIONER SIDNEY LINDEN: And Mr. 5 Roy...? 6 MR. JULIAN ROY: Probably about an hour 7 and a half depending on what others cover in their 8 examinations. 9 MR. DERRY MILLAR: Mr. Roy an hour and a 10 half probably depending on what others cover. 11 COMMISSIONER SIDNEY LINDEN: And, Ms. 12 Twohig, you'll have to wait and see as usual. 13 We may finish tomorrow and get to our next 14 witness, Leslie Kohsed-Currie I understand is she on 15 standby? 16 MR. DERRY MILLAR: Yes, Ms. 17 Kohsed-Currie's on standby. 18 COMMISSIONER SIDNEY LINDEN: Okay. Let's 19 take a break now or do you want to start right now? 20 I'm not sure. We've gone just a little 21 over an hour. It's a bit early for a break, but I think 22 it's a good time to take a break before we start. Let's 23 take a short break. 24 THE REGISTRAR: This Inquiry will recess 25 for fifteen (15) minutes.
2141 --- Upon recessing at 2:35 p.m. 2 --- Upon resuming at 2:55 p.m. 3 4 THE REGISTRAR: This Inquiry is now 5 resumed. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 7 sir? 8 9 CROSS-EXAMINATION BY MR. PETER DOWNARD: 10 Q: Mr. McCabe, my name's Peter Downard 11 and I appear for the former Ontario premier Mike Harris 12 and I just have a few questions for you this afternoon. 13 I take it that you know Eileen Hipfner? 14 A: Yes. 15 Q: She was a government lawyer who was 16 involved with the Interministerial Committee in September 17 of 1995? 18 A: Yes. 19 Q: She testified before the Inquiry and 20 referring to notes she had made during the September 6th 21 Interministerial Committee Meeting she referred to your 22 discussion at that time and the meeting on Wednesday, 23 September 6 of a prospect of an injunction hearing on 24 Friday, September 8th. And at that time you were saying 25 you thought that was the -- the best case scenario.
2151 Does that -- that jives with your 2 recollection, as I understand it? 3 A: Yes. 4 Q: And she said, relying on her notes, 5 that at the meeting you referred to this prospect of a 6 hearing two (2) days later, on the Friday, and that you 7 refer to the possibility of Stoney Point occupiers or 8 their representatives appearing and seeking an 9 adjournment of the motion for an injunction. 10 And her evidence was that you said that if 11 they did that you would argue for an interlocutory 12 injunction to be granted on Friday. 13 Now, do you recall that having been your 14 intention, at or around the time of the September 6th 15 Interministerial Committee meeting? 16 A: I really can't recall that exchange, 17 no. 18 Q: Would you -- would you dispute that 19 that was your intention at that time? 20 A: No. 21 Q: Now, in the September 6th 22 Interministerial Committee meeting, do you recall it 23 being conveyed that the Attorney General had given a 24 direction that you should not proceed for an injunction 25 on an ex parte basis?
2161 A: No. I don't recall that. 2 Q: If such a direction had been given, 3 do you think you would have recalled that? 4 A: Well, I'm not sure. But, you know, 5 it's -- it, you know, it seems likely that I -- I would 6 have recalled it or -- 7 Q: Because that would have been a -- 8 that would have been a very specific concern to you. 9 A: Yes, yes. 10 Q: And you've spoken about the view you 11 expressed with respect to the prospects of success of an 12 ex parte injunction during the September 6th 13 Interministerial Committee meeting. 14 Do you recall whether any other lawyer in 15 the room at that time took issue with the views you 16 expressed about those prospects? 17 A: I don't recall that, no. 18 Q: And as I understand your evidence, 19 your -- your recollection is that the concern you had 20 about proceeding on an ex parte basis rather than on 21 notice or abridged notice, was that the prospects of 22 success on the application would be lower, right? 23 A: Yes. We would run a real risk of 24 either dismissal or adjournment for service. 25 Q: Right. And -- and you saw what would
2171 be more likely in that scenario if -- if either of -- of 2 those possibilities became apparent that the court would 3 adjourn the matter to allow service? 4 A: Yes. 5 Q: And do you recall whether, in the 6 September 6th Interministerial Committee meeting, there 7 was -- there was discussion or whether there were other 8 reasons expressed for -- by anyone in support of 9 proceeding on notice rather than ex parte? 10 A: I can't recall that, no. 11 Q: All right. And at the time of the 12 September 6th Interministerial Committee meeting, I 13 understand that there -- and the Commissioner's heard 14 evidence, there was an occupation out west in British 15 Columbia involving a -- a very different group of First 16 Nations people at a place called Gustafson Lake. 17 Do you recall that happening at -- at -- 18 around the time of the Ipperwash events in early 19 September of '95? 20 A: Yes. I -- I recall events of that 21 sort at Gustafson -- Gustafson Lake and I think I recall 22 that that being, sort of, part of the landscape as of, 23 you know, September the 5th and 6th of 1995. So, I 24 presume it was that same year, yeah. 25 Q: Do you recall ever participating in
2181 or observing any discussions in which that part of the 2 landscape, the Gustafson Lake situation figured in 3 discussions regarding an injunction in the Ipperwash 4 situation? 5 A: Well, not specifically, no. 6 Q: Do you have any general recollection 7 of any relevance that that situation had with respect to 8 the Ipperwash matter? 9 A: No. No. The reason I say not 10 specifically, is because I -- I would surmise that it 11 probably did. You know, that probably was something that 12 was in the minds of people as they considered the, you 13 know, the whole problem of the occupation of Ipperwash 14 Park. 15 16 (BRIEF PAUSE) 17 18 Q: Now, when Elizabeth Christie 19 testified here, she said that although you ended up 20 proceeding ex parte, it was -- it was never the intention 21 that the Stoney Point occupiers would never be served, it 22 was just a question of when they would be served. 23 Do you agree with that? 24 A: Yes. 25 Q: And I take it that what you expected
2191 was that, if the Court granted the injunction that you 2 were applying for, and I'm talking now prior to the -- 3 the hearing. 4 If the Court granted the injunction you 5 were applying for, it would necessarily be an injunction 6 of a quite short duration and that there would be a 7 hearing for a renewal of the Order in the very near 8 future? 9 A: Yes, I think under the rule that -- 10 following the -- the injunction without notice rule, the 11 injunction can be for no longer than ten (10) days, as I 12 recall. 13 Q: And the Court, in its discretion, 14 could grant the injunction for a lesser time? 15 A: Yes. 16 Q: And with respect to what might happen 17 in the event that an injunction was granted and it was 18 not complied with by Stoney Point occupiers, we've heard 19 evidence that there was discussion of a next step of 20 possible contempt proceedings. 21 Do you recall that as having been an 22 option discussed? 23 A: I've seen that in -- in notes, having 24 to do with the -- with the meeting. I don't think I have 25 an independent recollection of it, particularly.
2201 Q: So, you -- you wouldn't dispute that 2 that was discussed, you just don't recall one way or the 3 other? 4 A: That's right, yes. 5 Q: But, would you agree that that would 6 be one of the ordinary options to be considered if the 7 injunction was obtained and -- 8 A: Yes. 9 Q: -- not complied with? 10 A: Right. If it -- if an injunction 11 were obtained and not complied with, it would -- 12 consideration of -- of that step would follow as a matter 13 of course. 14 Q: Okay. And a contempt proceeding 15 would certainly involve service on the persons sought to 16 be held in contempt and -- and a further Court hearing, 17 right? 18 A: Yes. 19 Q: And with -- this question may be a 20 little bit beyond your particular focus of interest at 21 the time. Do you recall -- I'm going to ask it anyway. 22 Do you recall anyone saying, in the 23 September 6th Interministerial Committee meeting or 24 around that time, that there should be a -- should be 25 inquiries made into oral history among First Nations and
2211 possibly other people in the Ipperwash area as to whether 2 there were grounds for the contention that there was a 3 burial ground in Ipperwash Provincial Park. 4 Do you recall that being raised, first of 5 all, in the Interministerial Committee meeting of 6 September 6th? 7 A: I can't recall it, no. 8 Q: Do you recall that being raised 9 outside that meeting around this time? 10 A: I can't recall it being raised. 11 Q: Now, one (1) other question. In the 12 September 6th Interministerial Committee meeting, did 13 anyone say that the Premier's view of the situation was 14 that people should, and this is more or less a quote, 15 "get the fucking Indians out of the 16 Park and use guns if you have to"? 17 A: I hadn't heard that phrase, no. 18 Q: If you had heard that in the meeting, 19 do you think you'd remember it? 20 A: Yes. 21 Q: Did you hear anyone attribute that 22 phrase to the Premier during this period of time outside 23 that meeting? 24 A: I don't think. I think at some point 25 subsequently, you know, I heard that, you know, bit of
2221 scuttlebutt, you know, reported as somebody having said 2 that, you know, attributing that to somebody connected to 3 the Premier. 4 But the, you know, the particulars of 5 that, you know, when and from whom and so forth, I don't 6 recall. 7 Q: You say what you heard was 8 scuttlebutt; is it fair to say that what you heard was a 9 rumour? 10 A: Yes. 11 Q: Okay. And how long after these 12 events did you hear that? 13 A: I don't know. 14 Q: Okay. Could it have been months? 15 A: Could have been months, yeah. 16 Q: And did you form any -- first of all, 17 I take it you recall that Debbie Hutton was present at 18 the -- 19 A: Yes. 20 Q: -- September 6th meeting? Did you 21 form any impression of her at the meeting? 22 A: No. I think what I recall is -- is 23 Elizabeth coming back from the -- from the September the 24 5th meeting and you know, reporting that the Premier's 25 representative, you know, had -- had conveyed the -- the
2231 message that the Premier would like this occupation to 2 end at the earliest possible time. 3 So, you know, I -- I went into the meeting 4 of September the 6th knowing that that was the case and, 5 you know, I wasn't particularly surprised at that news. 6 Q: Did you form any impression in 7 particular as to her personality or -- or manner? 8 A: I'm afraid not, no. 9 Q: Now, do you recall a discussion in 10 the September 6th Interministerial Committee meeting 11 about the prospect of obtaining an affidavit from Chief 12 Bressette of the Kettle and Stony Point Band? 13 A: I don't recall that. I think I've 14 seen it in the notes or in minutes or something 15 somewhere. 16 Q: And you don't dispute whatever's in 17 the notes on that? 18 A: No. 19 Q: And I'd like to refer you to the 20 transcript of your telephone conversation with Incident 21 Commander Carson, Tab 22 of your book. And I want to 22 refer you, in particular, to page 274 based on the 23 numbering -- the handwritten numbering at the bottom of 24 the page. 25 And now the -- the transcript is going to
2241 speak for itself obviously but I want to focus your 2 attention on the exchange towards the top of the page 3 which I'll -- I'll read and quote as follows. First 4 there's a statement attributed to you, quote: 5 "Well, um, if he -- if the judge puts 6 it to you that you as a professional 7 police officer, do you find -- do you 8 think, uh, this injunction should be 9 granted on this urgent basis? Ah ah, 10 you know, what's your answer to that?" 11 And Incident Commander Carson says: 12 "Yes. Absolutely." 13 And I'll stop there. And I note that the 14 way you formulated the question to Incident Commander 15 Carson was so as not to lead him, so as not to suggest an 16 answer to Incident Commander Carson, correct? 17 A: Yes. 18 Q: And I take it that would have been a 19 conscious choice on your part? 20 A: I think so. I -- what I -- you know, 21 what I was beginning to focus on here is what the 22 evidence in -- do I know now it's tomorrow for sure. I'm 23 not sure. 24 But in any event when this -- when this 25 motion takes place I'm beginning to focus on what the
2251 police officers -- or what this police officer's going to 2 be the representative -- or who is going to give evidence 3 is going to say. 4 Q: And I take it that you asked this 5 question in a non leading way because you wanted to know 6 what Incident Commander Carson's authentic view of the 7 situation was? 8 A: I'm sure that's right. And not that 9 I have any, you know, independent recollection of this as 10 to, you know, as to my thought processes is and so forth. 11 But I -- I do presume -- 12 Q: It's -- it's your belief that that's 13 what you were interested in? 14 A: Yes. Yes. 15 Q: Thanks very much, sir, those are my 16 questions. 17 COMMISSIONER SIDNEY LINDEN: Thank you, 18 Mr. Downard. 19 20 CROSS-EXAMINATION BY MS. JACQUELINE HORVAT: 21 Q: Good afternoon, my name is Jacqueline 22 Horvat and I represent Charles Harnick at this Inquiry. 23 A: Good afternoon. 24 Q: Did you ever have -- did you ever 25 receive any instructions directly from Minister Harnick
2261 regarding the injunction or the injunction materials? 2 A: Not directly, no. 3 Q: Who did you receive your instructions 4 from? 5 A: I don't know. This gets us into 6 hearsay but as I understand it, I received them via 7 Elizabeth and she tells me that -- I think she said that 8 she received them from Mr. Taman. 9 Q: Thank you. You -- you testified 10 earlier that it was always your intention to serve the 11 occupiers with the injunction materials? 12 A: Yes. 13 Q: Did anyone every instruct you not to 14 serve the materials? 15 A: No. 16 Q: Did any of the officers that you 17 spoke with tell you or give you the impression that the 18 decision to seek an injunction was having any effect on 19 the way they were doing their jobs? 20 A: No. 21 Q: Do you feel that the decision to 22 obtain an ex parte injunction had any effect on the way 23 the police officers were doing their jobs? 24 25 (BRIEF PAUSE)
2271 MS. KIM TWOHIG: Mr. Commissioner, I'm 2 not sure if he can answer this question. 3 COMMISSIONER SIDNEY LINDEN: Well, if he 4 can't he'll say he can't. I don't think he can, either, 5 to be honest. 6 THE WITNESS: Right. Well I -- you know, 7 I certainly can't answer that with any authority. 8 COMMISSIONER SIDNEY LINDEN: No. 9 THE WITNESS: You know, I mean. 10 11 CONTINUED BY MS. JACQUELINE HORVAT: 12 Q: After Mr. George was shot, did any of 13 the officers tell you or give you the impression that 14 anything that happened in the events leading up to the 15 shooting were affected by the decision to seek an 16 injunction? 17 A: No. 18 Q: Thank you. Those are all of my 19 questions. 20 COMMISSIONER SIDNEY LINDEN: Thank you, 21 Ms. Horvat. 22 Mr. Smith...? 23 MR. IAN SMITH: No, no questions thank 24 you, Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
2281 Mr. Beaubien has reserved some time. I don't see him 2 here, I don't see his counsel here. 3 MR. DERRY MILLAR: I understand that -- I 4 know that Mr. Sulman had to leave and I'm -- today, 5 because he told me that and Mr. Hinnegan's not here. It 6 may be that he'll be here tomorrow morning. And Ms. 7 Clermont's not here, so -- 8 COMMISSIONER SIDNEY LINDEN: Ms. 9 Clermont's not here, either. 10 MR. DERRY MILLAR: And Ms. Clermont had 11 asked us to reserve her a couple of minutes. Oh, she's 12 back. But it may be that Mr. Hinnegan's on his way or 13 will be here first thing in the morning, so. 14 COMMISSIONER SIDNEY LINDEN: Do you have 15 any information, Ms. Clermont, as to where and when 16 either Mr. Sulman or Mr. Hinnegan might be here? 17 MS. JANET CLERMONT: I don't, I'm sorry. 18 COMMISSIONER SIDNEY LINDEN: You don't? 19 All right, well we'll hold it down, we'll hold him down 20 for the time being and go around. 21 That brings us up to Anna Perschy on 22 behalf of Ms. Hutton? 23 24 (BRIEF PAUSE) 25
2291 MS. ANNA PERSCHY: Good afternoon, 2 Commissioner. 3 Good afternoon, Mr. McCabe. 4 COMMISSIONER SIDNEY LINDEN: Good 5 afternoon. 6 THE WITNESS: Good afternoon. 7 8 CROSS-EXAMINATION BY MS. ANNA PERSCHY: 9 Q: Despite all the pile of material, I 10 don't expect to be that long. 11 You testified earlier today that you -- 12 first of all, I should introduce myself. I am Counsel 13 for Deb Hutton -- 14 A: Yes. 15 Q: -- who was the executive assistant to 16 the Premier at the time. You testified earlier today 17 that you had attended some Interministerial Committee 18 meetings on Aboriginal emergencies in 1993. 19 Do you recall giving that testimony this 20 morning? 21 A: Yes. 22 Q: And Commission Counsel took you to 23 some minutes of those meetings on May 21st, 1993 and June 24 25th, 1993 and I believe they are at Tab 6 and 10 of 25 Commission Counsel documents and I don't intend to take
2301 you to them. 2 But if I understood your testimony, you 3 don't recall attending those meetings today? I mean, 4 these are now meetings that took place about twelve (12) 5 years ago. 6 But do I take it that you don't dispute, 7 you've got no reason to dispute that the minutes 8 themselves accurately summarize what would have occurred 9 at those meetings? 10 A: Right. I -- I've no reason to 11 dispute that, no. 12 Q: I've provided you with a vanilla 13 folder and, Commission Counsel -- sorry, Commissioner you 14 should also have a vanilla folder. And I was wondering 15 if you could just look at the briefing note for the 16 information of the Attorney General which is updated June 17 30th, 1993. 18 It's Inquiry document number 3001685 and I 19 believe it was previously marked as Exhibit P-722. 20 A: Yes. 21 Q: Now, your name appears at the end of 22 this document as Counsel and, as I said, I appreciate it 23 was prepared some time ago, but do you recall if you 24 prepared this briefing note? 25 A: I'm -- I'm not certain. I think it's
2311 entirely possible that I did. 2 3 (BRIEF PAUSE) 4 5 Q: On the last page, at page 4 there's a 6 reference to an Opinion from the legal services branch 7 which was given to the OPP and -- and the quote from 8 that. 9 And we heard evidence from Eileen Hipfner 10 that she prepared two (2) versions of an opinion in that 11 regard and also in the -- in the vanilla folder that I've 12 provided to you there's two (2) additional documents. 13 And for the assistance of My Friends it's 14 the -- the memo from Eileen Hipfner to Inspector Doug 15 Scott dated June 2, 1993 which is Inquiry Document Number 16 2001225. 17 And then a second memo with a fax cover 18 sheet from Eileen Hipfner to Superintendent Wall. And 19 within that a memo from Eileen Hipfner to Inspector Doug 20 Scott dated June 11th, 1993 and that was made Exhibit P- 21 714, the memo dated June 2, 1993 was made an Exhibit P- 22 713. 23 And I -- I'm wondering, sir, did you 24 recall seeing either of these two (2) opinions at the 25 time?
2321 A: I don't recall seeing either of the 2 two (2) opinions. If I -- if I produced the briefing 3 note, clearly I had some knowledge of it, but I -- I'm -- 4 Q: Today you simply don't. 5 A: -- I'm afraid I don't recall, no. 6 Q: Fair enough. And obviously the -- 7 the meetings of 1993 in these -- these -- these memos are 8 now twelve (12) years old, but I take it that, back in 9 1995, you likely would have had a better recollection of 10 what had transpired in 1993, than you do today? 11 A: It seems reasonable. 12 Q: You testified that the OPP's 13 preferred approach with respect to situations involving 14 an occupation or a blockade was to have the landowner 15 seek an injunction and you -- you indicated some 16 rationale as to that preferred approach. 17 And -- and I take it that that's something 18 that you were aware of prior to 1995? You mentioned for 19 instance the Beardmore experience, etcetera -- 20 A: Yes. 21 Q: -- which occurred a few -- 22 A: Yes. 23 Q: -- years previously? 24 Turning now to 1995, we've heard evidence 25 at this Inquiry that the August 18th, 1995 decision of
2331 Mr. Justice Killeen, regarding the West Ipperwash beach 2 lands, was discussed at the Interministerial Committee 3 Meeting on September 5, 1995, regarding Ipperwash Park. 4 And -- and I appreciate that you didn't 5 attend that meeting, but as -- as you indicated earlier 6 today you had spoken with Elizabeth Christie in advance 7 of this meeting and you'd asked her to attend the 8 meeting. 9 And I was wondering if you could take a 10 look at Document Number 3000605 and Ms. Christie gave 11 evidence, I can't recall if it was yesterday or the day 12 before, that this -- that this document is -- is the 13 decision in question. 14 And my question was: Do you recall if you 15 were made aware of the decision on or before September 16 5th, 1995? 17 A: No, I don't know. As I think I 18 mentioned earlier Elizabeth has told -- I'm not sure if I 19 was on vacation or not, you know, during parts of August 20 of -- of 1995, so when I became aware of this decision 21 I'm not sure, but as you say I think it was -- it was 22 spoken of at the September 5th meeting so chances are 23 that if I hadn't heard about it earlier, I would have 24 heard about it around that time from Elizabeth. 25 Q: This decision involved the -- the
2341 West Ipperwash beach lands and -- and concerned, in part, 2 claims against cottagers who had bought their interest in 3 the lands sort of on the -- on the open market from -- 4 from private citizens and -- and I take it that you were 5 aware that that was -- that was the nature of the claim 6 as against the cottagers? 7 A: Yes, and I'm pretty sure that this is 8 the same claim that we were talking about this morning, 9 the meeting, I guess, in 1993 where Charlotte Bell 10 encouraged the Ontario Government to become involved in 11 the litigation in some way. 12 Q: And -- and I take it from what you've 13 just said a few moments ago, that you don't specifically 14 recall but you think it was likely that you would have 15 mentioned this or discussed this with -- with Elizabeth 16 Christie in or around September 5th. 17 A: Well at least in passing the 18 existence of the decision, you know, sort of you remember 19 that case? Well Justice Killeen has come out with the 20 decision, you know, something of that nature I think. 21 Q: And do you recall if there was any 22 mention of the relevance of this decision regarding the 23 West Ipperwash beach lands as with respect to the -- the 24 situation at Ipperwash Park? 25 A: I can't recall any discussion. I've
2351 seen it mentioned in -- in materials in relation to the 2 September the 5th meeting. 3 Q: Fair enough. Now if you could turn 4 to Ms. Hipfner's notes of September 6th which are also in 5 your vanilla folder. And for the assistance of My 6 Friends, they've seen them before, I believe it's 7 Document Number 10117874. 8 A: I'm not so sure that they're in my 9 manila folder. I don't see them here in the manila 10 folder. Perhaps they're in one of the other sources of 11 information I have? 12 13 (BRIEF PAUSE) 14 15 A: Thank you. 16 Q: You were asked this by Mr. Downard 17 and I -- I just wanted to take you to -- to the -- one of 18 the references in the notes. At page 2 following, "Some 19 further information from Mr. Fox," there's a reference to 20 you, Tim, any names occupiers and then Mr. Fox providing 21 a response with respect to a list of persons known to be 22 there. 23 And then you're inquiring as to whether or 24 not Chief Bressette was willing to provide an affidavit 25 and asking do we want him to. And then Ms. Hutton
2361 indicating: 2 "Would -- would like him to be 3 supporting our efforts, but 4 independently." 5 And there's also a reference which you've 6 likely seen in Ms. Jai's notes which are in Commission 7 counsel's documents which are at Tab 19 on the same 8 point. And at the top of page 2 there's a reference: 9 "PO [Premier's Office] would like Chief 10 to support us but do this 11 independently. Doesn't want to go into 12 land claims." 13 Now I was just wondering is -- is that 14 consistent with -- with your recollection? 15 A: Well I, you know, I certainly don't 16 remember anything to, you know, gainsay this. So yes, I 17 -- it's consistent so far as that goes. 18 Q: Fair enough. We've heard evidence 19 that there were reports of automatic gunfire at the 20 meeting early on -- on September 6th. And that there was 21 a request that that be confirmed. 22 And some of the notes indicate that that 23 request came from Ms. Hutton. And I'm wondering if -- if 24 you have a recollection in that regard. 25 A: I can't remember.
2371 Q: And if you could turn back to Ms. 2 Hipfner's notes for a moment. Again, the notes of 3 September 6th, Document Number 1011784, the fourth page 4 in with the number 3 at the top. 5 A: Hmm hmm. Yes. 6 7 (BRIEF PAUSE) 8 9 Q: There's the heading, Direction From 10 Ministries, and then some comments that are attributed to 11 Mr. Bangs and then some notations next -- next to Sturdy 12 crossed out: 13 "Also a question of what M can say if 14 OPP are handling this and especially 15 now that charges have been laid." 16 And then some notations with respect to 17 Dave Moran indicating: 18 "Can't have OPP speak on behalf of 19 government." 20 And then a few more notations and then a 21 reference to Kathryn Hunt: 22 "Runciman's reservation comes from fact 23 that Sol Gen's protocol is not to be 24 involved in day-to-day operation of the 25 police."
2381 And we've heard evidence that Ms. Hunt's 2 comment regarding Runciman's reservation was made 3 following this question as to what ministers can say now 4 that charges have been laid, and I'm just wondering if 5 that's consistent with your recollection? 6 A: Yes, again I -- you know, I don't 7 remember anything that would be grounds for, you know, 8 disputing anything that is in these notes. 9 Q: And I just have one final reference 10 to the notes. This is now in regards to Ms. Jai's notes 11 which I think you've had an opportunity to review. And 12 again, those are the notes at Tab 19 from September 6, 13 eight (8) pages in where there's a number 6 at the top. 14 And the initial notation is with respect 15 to a spokesperson and then below that there are the 16 references: 17 "Deb: Feels MNR as property owner can 18 ask OPP to remove people. 19 Scott: You can ask them to remove 20 them. You can't insist or demand that 21 they be removed. 22 Deb: Has MNR asked OPP to remove them? 23 They could be formally requested to do 24 so but how and when they do it is up to 25 them. Could have that as a
2391 communication message. MNR has 2 formally asked that they remove them." 3 And I'm just wondering, again, you don't 4 have any notes, but is that generally consistent with 5 your recollection? 6 A: Well, really the same answer. I -- I 7 -- it appears to me to be consistent with, you know, the 8 tenor of the discussion. 9 I don't recall this particular exchange. 10 Q: Fair enough. We've heard evidence 11 that reports of gunfire, but not automatic gunfire were 12 confirmed later at the Interministerial Committee meeting 13 on September 6th, and I'm wondering if you recall that? 14 A: It -- I seem to recall, correct me if 15 I'm wrong, but I seem to recall in the notes a -- an 16 interjection at one point from Mr. Sturdy where he says 17 something about reports of gunfire confirmed? 18 Q: Yes. 19 A: So, like, now again, this is 20 something that I had no doubt read in the last week or so 21 rather than an independent recollection of what -- what, 22 you know, actually occurred at that time. 23 Q: But, is it generally consistent with 24 your recollection? 25 A: Yeah, well I -- again I have -- you
2401 know, I have nothing to -- to, you know, question the -- 2 the, you know, the -- the truth of what's recorded in -- 3 in these notes. 4 Q: And you referred to Ms. Jai's notes, 5 and I just wanted to actually take you to that reference. 6 You gave some testimony today with respect to your 7 advising the Committee with respect to bringing the 8 injunction time -- timing of the injunction. 9 And there's some references at page 3 of 10 Ms. Jai's notes. This is document 1012579. And you -- 11 you -- 12 A: Hmm hmm. 13 Q: -- there's the notation to -- with 14 respect to you: 15 "Best case Friday in Court." 16 And then the reference to Peter Sturdy 17 that you mentioned is referred to on the following page, 18 at page 4: 19 "Peter Sturdy has confirmed reports of 20 gunfire." 21 And we've heard evidence that these notes 22 do record, sort of, the order in which these comments 23 were made, and I'm wondering if that's your recollection, 24 that you -- 25 A: Yes.
2411 Q: -- your response with respect to 2 timing came before the confirmation of the reports of 3 gunfire? 4 A: I -- I really don't know. 5 Q: And finally if you could just turn to 6 the transcript of your telephone call with Inspector 7 Carson I believe you have it at Tab 22 of Commission 8 Counsel's documents. For the assistance of My Friends 9 it's P-444(B) Tab 39. 10 11 (BRIEF PAUSE) 12 13 Q: And I'm not sure if the version that 14 you have has the numbering system at the bottom, but -- 15 A: Does it begins with two hundred and 16 sixty-seven (267)? 17 Q: Yes. 18 A: Yes. 19 Q: And I was actually going to refer you 20 to pages 271 and following. 21 And they are the references to -- to your 22 explaining what an ex parte injunction is. And following 23 where you ask Inspector Carson about urgency he responds 24 by providing some factual information; the reports of 25 gunfire --
2421 A: Where is this? 2 Q: Sorry, this the bottom of 271. 3 A: Yes. 4 Q: And the fire. And at page 272 5 Inspector Carson's reference to -- to the fire being set 6 up as an ambush, et cetera. 7 And my question to you was -- was it your 8 understanding that -- that these details about the fire 9 and the ambush and -- and the gunfire that Inspector 10 Carson was referring to as indicating that the situation 11 had some urgency, that these were circumstances which had 12 occurred the night of September 5th? 13 A: I'm sorry, your question is...? 14 Q: My question is he's -- he's referring 15 to this factual information and I'm wondering if you had 16 an understanding that -- that these things that he's 17 referring to are things that had occurred on the night of 18 September the 5th? 19 A: I don't think I was parsing it that 20 closely at this stage. Remembering now, what I'm 21 interested in is -- at this point is -- is to get at 22 least a -- a good sense of what the evidence is going to 23 be. I'm not, you know, questioning you on these things 24 for any other purpose, I don't, think at this stage. 25 Q: Fair enough. Those are all of my
2431 questions. Thank you very much. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Ms. Perschy. 4 5 (BRIEF PAUSE) 6 7 COMMISSIONER SIDNEY LINDEN: Ms. Tuck- 8 Jackson...? 9 MS. ANDREA TUCK-JACKSON: Good afternoon, 10 Mr. Commissioner. 11 12 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 13 Q: Good afternoon, Mr. McCabe. 14 A: Good afternoon. 15 Q: My name, sir, is Andrea Tuck-Jackson, 16 I'm going to ask you some questions on behalf of the OPP. 17 And I'd like to begin if I may, with what 18 I understand was your last contact with Ron Fox on the 19 afternoon of September the 6th. You spoke of your walk 20 up Bay Street towards your office, and I gather from what 21 you told us that your last contact with then Inspector 22 Fox was indeed when you parted company on that sidewalk? 23 A: I think so. 24 Q: All right. And when you parted 25 company with Inspector Fox I'm going to suggest to you
2441 that every indication you had was that the OPP was going 2 to stay its course, man the fort, so to speak, at the 3 site of the occupation while you proceeded on -- in 4 obtaining an injunction on behalf of the Province? 5 A: Yes, I think that's fair. 6 Q: And indeed I'm going to suggest to 7 you that Inspector Fox gave you no suggestion that any 8 other action, or course of action was being contemplated 9 at that point? 10 A: That's right. 11 Q: I'd like to move on then if I could 12 with your contact with then-Inspector Carson and if I 13 could, would you please turn -- take you rather -- to Tab 14 22 of your materials? 15 A: Yes. 16 Q: And you -- you can take it from me 17 that the -- your phone call that you had with Inspector 18 Carson did actually take place just after 2:30 at 14:36 19 in the day. And I gather again from what you've told us, 20 this was your first contact with John Carson. 21 A: Yes, I believe that's the case. 22 Q: As best as you can recall at this 23 point. 24 A: Yes. 25 Q: All right. And if I could take you
2451 in particular to page 271 of the transcript. And I note, 2 sir, that at the bottom of the page, you raised with 3 Inspector Carson the fact that an issue that has come to 4 light down in Toronto that has gotten people as you put 5 it, particularly concerned were reports of gunfire last 6 night. 7 And you asked the very fair and reasonable 8 question at the top of the following page: 9 "Does that worry you?" 10 And you'd agree that Inspector Carson 11 replied that: 12 "Yes, yes, it did." 13 A: Yes. 14 Q: All right. But then you'd also agree 15 with me I trust that very close thereafter he says: 16 "I have to qualify that somewhat." 17 You'd agree with that part of the 18 conversation? 19 A: Yes. 20 Q: All right. And -- 21 A: Again it's -- sorry to interrupt. 22 Like, this all is posited on -- on the understanding that 23 I am receiving these understandings by reading these 24 transcripts. 25 Q: Of course.
2461 A: Yes. 2 Q: And listening to your voice and to 3 the voice of -- 4 A: Yes, yes. 5 Q: -- Inspector Carson. I understand. 6 You'd agree though that over the next 7 course of questions and answers and I'm not going to take 8 you through all of it because the transcript is here and 9 we can read it and talk about it at a later date, but 10 what he goes on to do -- make it clear as to the limits 11 of what he can say about the apparent reports of gunfire. 12 A: Yes. He was -- it appears 13 particularly concerned about making the point that there 14 were limits about what he could say about gunfire, yes. 15 Q: And I'm going to suggest to you that 16 it was clear that what Inspector Carson appeared to be 17 doing was that he appeared to be taking pains not to 18 overstate or in any way exaggerate the evidence that you 19 might be seeking to rely upon in support of your 20 application. 21 A: I'd say that's a fair way to put it, 22 yes. 23 Q: Thank you. You've also told us that 24 your desire in speaking to an officer was -- was 25 threefold. First of all you wanted to make contact to
2471 ensure you had a witness for the following morning, and 2 indeed you achieved that goal, it would appear, in your 3 conversation with Inspector Carson, correct? 4 A: Yes. 5 Q: Your second goal was to obtain a list 6 of names for your style of cause for the defendants. 7 A: Yes. 8 Q: And you'd agree that you actually 9 achieved that goal as well in this conversation? 10 A: Yes. 11 Q: Your third goal, or your task was 12 that you wanted to be able to raise the topic of service. 13 And that actually didn't occur in your conversation with 14 Inspector Carson. 15 A: Right. 16 Q: All right. And as I understand it 17 from having reviewed the calls and the transcripts, the 18 first time that actually does come up is in your 19 conversation with Inspector Linton. 20 A: Right. 21 Q: And if -- if it assists, sir, I'd -- 22 why don't you turn to Tab 28. And I want to speak to you 23 a little bit about service and the willingness of the 24 police to, indeed, effect service of the materials. 25 A: Yes.
2481 Q: And gain you can take it from me that 2 your telephone call with Inspector Linton occurred at 3 7:34 p.m. and onward -- 4 A: Right. 5 Q: -- on the evening of September the 6 6th. 7 A: Right. 8 Q: And I noted in particular at page 5 9 of that transcript, on the issue of -- of efforts by the 10 OPP to serve the materials upon the occupants, Officer 11 Linton makes it clear that he's not adverse to doing 12 that. Midway down the page he indicates: 13 "We'd be happy to have a copy of that 14 of your document and try to serve it." 15 A: Yes. 16 Q: And you'd agree that was said? 17 A: Yes. 18 Q: All right. And I'm going to suggest 19 to you, sir, that the topic of service comes up again as 20 we heard in your telephone call with Detective Sergeant 21 Mark Wright. 22 A: Yes. 23 Q: And if you could turn to Tab 29 24 please, I'm going to suggest to you that even in the 25 midst of various -- very obvious concerns that are
2491 clearly expressed to you by Officer Wright, he 2 nonetheless indicated to you that he was prepared to try 3 and effect service by taking materials down to the main 4 gate of camp Ipperwash and if it helps, sir, it's -- it's 5 at page 21 of the transcript where we see that. 6 7 (BRIEF PAUSE) 8 9 Q: Right down at the bottom. 10 A: Yes. 11 Q: He indicates a willingness to try and 12 serve the materials at the gate, main gate, of Camp 13 Ipperwash? 14 A: Yes. 15 Q: And secondly, again pursuant to your 16 suggestion, he even indicated a willingness on behalf of 17 the police, to effect service by giving a verbal 18 indication, in essence -- 19 A: Yes. 20 Q: -- shouting over the fence, so to 21 speak, but nonetheless, an effort to try and give notice 22 to the occupiers of what was going to transpire the 23 following day. 24 You recall that? 25 A: Yes, well, you know, again I don't
2501 recall the particulars of this conversation but generally 2 speaking, yes. 3 I was asking him to do what he can and he 4 was explaining to me the difficulties. 5 Q: I understand. 6 A: But he was not, you know, at any 7 time, you know, you know, denying that or suggesting that 8 the OPP wouldn't do their best. 9 Q: You're anticipating my final wind 10 up -- 11 A: Yeah. 12 Q: -- to these questions. 13 A: Hmm hmm. 14 Q: I'm going to take you one (1) or two 15 (2) steps further. You'd also agree that in your later 16 conversation with Inspector Linton, and that is at Tab 31 17 of your materials, the transcript thereof. 18 19 (BRIEF PAUSE) 20 21 Q: And again, you can take it from me 22 that this call takes place at around ten (10) after 9:00 23 that night. 24 At page 3 of the conversation, even though 25 again the officer is expressing some concerns about
2511 change in circumstances that are -- that have arisen at 2 the site, he is nonetheless still saying, you know, if we 3 can, we will make efforts to effect service. 4 A: Yes. 5 Q: All right. And I'm further going to 6 suggest to you, Mr. McCabe, that even apart from what the 7 police were prepared to do on the evening of September 8 the 6th, Officer Wright actually drew it to your 9 attention that he had even made efforts to try and 10 facilitate service the day before. 11 And if I could take you back to Tab 29. 12 Page 11. 13 14 (BRIEF PAUSE) 15 16 Q: Somebody else took you to this 17 passage and I just want to make sure it's put in its 18 proper context. This appears to be a part of your 19 conversation where Officer Wright is providing a 20 chronological overview of what's transpired in the past 21 couple of days. 22 And he's indicated that the day before, on 23 the 5th, he spoke with a gentleman, Bert Manning, and 24 told him personally, advising him of -- of the fact that 25 they -- the occupiers were trespassing. But, further
2521 down the page it indicates that -- that the intention was 2 that the Ministry was going to attempt to seek to obtain 3 an injunction with respect to the illegal occupation and 4 who could I contact, because it was my understanding that 5 you, the natives, on holding the possession of the Park 6 at this particular time would be allowed representation 7 and attendance at that hearing if they so desired. 8 So, you'd agree with me, Mr. McCabe, that 9 what Officer Wright is conveying to you at this time, is 10 that even the day before, he was making efforts to try 11 and facilitate some type of service of injunction 12 materials, so that the occupants -- occupiers, rather -- 13 A: Right. 14 Q: -- would have a fair opportunity to 15 come to Court and have their piece -- to say their piece. 16 A: Yes, that appears to be the case, 17 though at this stage, he would have no paper -- 18 Q: Of course. It would appear to be -- 19 A: -- to serve. 20 Q: -- what he's conveying to you is that 21 he's trying to put in motion or to facilitate a -- 22 A: Yes. 23 Q: -- contact person -- 24 A: Yes. 25 Q: -- so that that could actually occur.
2531 A: It does. 2 Q: All right. So, then I trust, sir, 3 that you'd agree with me that over the course of the 4 several conversations you had with various senior OPP 5 officers that night, it became apparent to you that the 6 OPP were not, in any way, going to stand in the way of 7 serving notice materials, subject of course to public 8 safety, but they weren't going to stand in the way of 9 serving those materials and making sure that the 10 occupiers had a fair opportunity of knowing that they 11 could be in court to speak to the matter? 12 A: Yes. That was certainly my 13 impression. 14 Q: And indeed, sir, I'm going to suggest 15 that we could go one (1) step further, that it was clear 16 that again, subject to issues of public safety, they were 17 prepared to do what they could to facilitate the 18 communication of that information about the injunction 19 application to the occupiers? 20 A: Yes, well, they would -- they were 21 willing to do it. 22 Q: Thank you. I asked you, at the end 23 of my examination, about your last contact with Ron Fox-- 24 A: Hmm hmm. 25 Q: -- and I wanted to ask you a similar
2541 contact -- question rather -- about your last contact 2 with John Carson. 3 We've heard today of a telephone 4 conversation that was played between the two (2) of you 5 shortly around 4:10 p.m. in the afternoon. It's at Tab - 6 - I've got it at Tab 45. A moment's indulgence, I'm 7 working from another volume, I apologize. 8 9 (BRIEF PAUSE) 10 11 Q: Tab 25, I'm sorry. 12 A: Hmm hmm. 13 Q: Very short conversation I'm going to 14 suggest, the pith and substance of which was that he was 15 confirming, for your benefit, that Mark Wright would 16 indeed be in attendance, hopefully bright and chipper, 17 the following morning at 8:00 a.m. so that you 18 could prepare him so he could give testimony in support 19 of your application. 20 Is that a fair summary of the gist of the 21 conversation? 22 A: Yes. The only -- you mentioned my 23 last contact with Carson. I think a couple of days later 24 or on the Friday in -- he was in London as well, right. 25 Q: Well, I -- I'm sorry, I should have
2551 clarified. 2 A: Yeah. 3 Q: What I meant was, I understood this 4 to be your last contact with John Carson on September the 5 6th? 6 A: It appears to be the case, yes. 7 Q: All right. And again, I'm going to 8 suggest to you, that when you hung up the phone with John 9 Carson, every indication you had was that the OPP was 10 going to stay the course, hold down the fort at the site, 11 while you proceeded, the following day, to pursue this 12 injunction application? 13 A: Yes. 14 Q: And again, John Carson gave you no 15 suggestion, as of four o'clock, 4:15 in the afternoon of 16 September the 6th, that any other course of action was 17 going to be pursued? 18 A: Right. 19 Q: Let's move on then to the following 20 day, September the 7th. 21 A: Hmm hmm. 22 Q: And I'm going to be asking you a 23 series of questions and taking you to a variety of pages 24 at Tab 36, the transcript of the September 7th 25 proceedings.
2561 A: Right. 2 3 (BRIEF PAUSE) 4 5 Q: Now, as I understand it, sir, 6 Detective Sergeant Wright was called by you at the 7 injunction hearing to provide an overview of the events 8 involving the occupiers and the events that had 9 transpired in the preceding number of days and even to 10 provide a bit more historical context from the preceding 11 years? 12 A: Yes, that's right. Primarily my 13 intention was for the officer of the OPP to advise the 14 Court as to the course of events from the beginning of 15 the occupation, you know, statements that were -- had 16 been made and activities that had been engaged in by the 17 people in the Park and to bring that information to the 18 moment, if possible. 19 Q: I understand. 20 A: So the -- in -- in the circumstances 21 to, you know, to do that by virtue of -- of viva voce 22 testimony rather than a static affidavit which would have 23 been prepared some hours earlier. 24 Q: And may very well have been stale 25 dated by the time you rolled into court in the morning?
2571 A: Absolutely, yes. 2 Q: I understand. All right. What I'd 3 like to do is highlight a number of aspects of his 4 testimony which obviously occurred in your presence. And 5 I'd like to begin, if we could, at page 7 of the 6 transcript, around line 25. 7 I trust you'd agree with me, Mr. McCabe, 8 that during the course of Detective Sergeant Wright's 9 testimony, he described the erection some years earlier 10 of a toll booth on a road that we all know as Matheson 11 Drive. 12 Do you see that passage? 13 COMMISSIONER SIDNEY LINDEN: What page is 14 that, I'm sorry. 15 MS. ANDREA TUCK-JACKSON: Page 7, Your 16 Honour. 17 COMMISSIONER SIDNEY LINDEN: 7 of the 18 transcript? 19 MS. ANDREA TUCK-JACKSON: Around line 25. 20 COMMISSIONER SIDNEY LINDEN: Thank you. 21 THE WITNESS: I may be looking in the 22 wrong place. I'm looking at numbered paragraph -- 23 numbered, in the transcript, paragraph 7 -- page 7 at the 24 top? 25
2581 CONTINUED BY MS. ANDREA TUCK-JACKSON: 2 Q: Yes. What I'm particularly interested 3 in, he appears to be discussing this toll booth on the 4 road and right around line 25, I'm going to suggest to 5 you -- 6 A: Oh, yes, okay. Sorry. 7 Q: -- he -- that's all right. He 8 volunteered that there is an issue of colour of right in 9 relation to that road. 10 A: Yes. 11 Q: You'd agree with me that he revealed 12 that to the judge? 13 A: Yes. 14 Q: Thank you. Let's go to page 10 if we 15 can. And I'm interested in the text near line 15 at page 16 10. And I'm going to suggest to you that during the 17 course of his evidence, he testified that, in relation to 18 the Park occupation of recent days, the occupiers were 19 happy to have their burial ground. In other words, have 20 their burial ground back. 21 A: Yes. 22 Q: And that was something apparently 23 conveyed to him by Bert Manning. 24 A: Yes. 25 Q: So you'd agree with me that he was
2591 alerting Justice Daudlin to the fact that the existence 2 of a burial ground could very well be playing a role in 3 the occupation? 4 A: Yes. 5 Q: Let's move on to page 11, line 5. I 6 trust you'd agree with me that during his evidence he 7 volunteered the fact that there was a sacred site at the 8 Park and that there had been a history that the Ministry 9 of National Resource -- Natural Resources rather, had 10 allowed the Aboriginal community free access to the Park 11 at any time of the year. He volunteered that piece of 12 information. 13 A: Yes. 14 Q: Page 16, please. Approximately line 15 8. I'm going to suggest to you, again, that during the 16 course of his evidence he volunteered that in respect of 17 checkpoints that had been set up by the police, following 18 the Park takeover there was absolutely no problem 19 encountered between the police and the First Nations 20 people at those checkpoints from the perspective of co- 21 operation. 22 A: Yes. That appears to be the case. I 23 haven't read this closely, you know, in order to -- to 24 distill information in quite that way but as you refer me 25 to these lines, that yes, it appears to be that's what
2601 he's saying. 2 Q: Thank you. And finally, on the issue 3 of gunfire that had formed what I might characterize as a 4 rather central part of your conversation the day before 5 with Inspector Carson, I want to take you to page 21 of 6 his evidence, line 16. 7 I'm going to suggest to you that this is 8 what he told Justice Daudlin on the issue of gunfire. I 9 believe it was Tuesday night officers there, that were 10 there at those points, checkpoints, heard what they 11 believe to be automatic weapons fired within the Park. 12 What was believed to be fifty (50) to one 13 hundred (100) rounds of automatic weapons, fire, going 14 off inside the park. That was Tuesday. I'm going to 15 suggest to you that it would certainly appear from the 16 transcript and indeed the evidence was given in your 17 presence, that he put it no higher than a belief on the 18 part of the officers as to what they heard. 19 A: Yes. 20 Q: Thank you. Now, I'm also going to 21 suggest to you, Mr. McCabe, that during the course of his 22 evidence, Officer Wright testified as to the intention of 23 the police in the management of the occupation thus far, 24 and again I want to take you to a number of passages in 25 that regard.
2611 But before I do that I'm going to put the 2 following to you, and I'm going to suggest, sir, that at 3 no time did Officer Wright indicate or imply in his 4 evidence that, in the absence of an injunction, the 5 police intended to go into the Park to remove the 6 occupiers. 7 A: I can't remember any such suggestion, 8 no. 9 Q: Thank you. I going to suggest to 10 you, indeed, that it was quite the contrary that became 11 apparent during his testimony and again I want to take 12 you to a number of those passages. 13 Let's begin with page 17. 14 15 (BRIEF PAUSE) 16 17 Q: The very top of the page, and if it 18 assists you just to refresh your memory and give yourself 19 a reference point, you might want to turn just to the one 20 page back. But I can tell you that what he appears to be 21 talking about this time is the removal of a number of 22 picnic tables that had been put into a sandy parking lot 23 late on the 5th and early into the morning of September 24 the 6th. 25 And I trust, sir, that you'll agree with
2621 me that he told the Court, in relation to that aspect of 2 what had transpired in the preceding days, was the 3 following: 4 "Our concern was to move those picnic 5 tables out of there and move those 6 individuals back into the confines of 7 the Provincial Park because our 8 objective was to attempt to negotiate a 9 peaceful settlement to this problem and 10 still is our intention." 11 A: Yes. 12 Q: You agree that formed part of his 13 testimony? 14 A: Yes. 15 Q: Thank you. Let's go to page 30. 16 17 (BRIEF PAUSE) 18 19 Q: A moment's indulgence, Your Honour. 20 I just want to make sure I have the context completely 21 accurate. 22 23 (BRIEF PAUSE) 24 25 Q: At this particular juncture, page 30,
2631 and I'm interested in the evidence that appears at line 2 23. He's explaining what was motivating the -- the 3 actions of the police on the evening of September the 4 6th, and the fact that certain individuals had come out 5 into the parking lot. 6 And you'd agree with me that around line 7 23, he advises the Court: 8 "Our objective there, Your Honour, was 9 to have them in the Park, contain them 10 into the Park and not come out onto 11 that property and/or these houses 12 because we were concerned about the 13 safety of those people." 14 You agree that that's what he advised the 15 Court of? 16 A: Yes. 17 Q: If I could take you back to page 20. 18 19 (BRIEF PAUSE) 20 21 Q: I'm interested in the passage around 22 line 7, Mr. McCabe. 23 You'd agree with me, sir, that Detective 24 Sergeant Wright told the Court that at no time has an OPP 25 officer entered into the Ipperwash Provincial Park proper
2641 since we removed ourselves Monday night. 2 You then asked the question: 3 "That is still the case?" 4 He replies: 5 "That is still the case." 6 And then he goes on: 7 "We have never entered that Park, no." 8 You agree he told the Court that? 9 A: Yes. 10 11 (BRIEF PAUSE) 12 13 Q: And I'm sorry, I missed one passage a 14 minute ago. Could I take you back to page 31. It 15 relates to the intention as expressed by Officer Wright 16 of the OPP as to the events of September the 6th.. And 17 I'm interested in the passage at line 8. 18 You'd agree that he told the Court the 19 objective here was to move those individuals back into 20 the Park and not enter the Park? 21 A: Yes. 22 Q: Then there's a question by Justice 23 Daudlin: 24 "Were you aware at that time that the 25 ministry was in the throes of trying to
2651 organize this particular application?" 2 And the answer that Officer Wright gives 3 was, Yes, I was. You'd agree that was his testimony? 4 A: Yes. 5 Q: Thank you. One (1) final reference, 6 Mr. McCabe, I'd like to take you to and that's page 23. 7 And in particular it's around line 15 and 8 again this seems to be a more general comment as to the 9 intentions of the police as to entering the Park. And I 10 trust that you'd agree with me that around line 15 of the 11 transcript Officer Wright indicates: 12 "And again we were not -- it was not 13 our intention to go in there, within 14 the fence line if you will, of 15 Ipperwash Provincial Park. We really 16 didn't want to antagonize anybody in 17 there." 18 You agree that was his evidence? 19 A: Yes. 20 Q: Thank you. I want to move on to 21 another area still relating to Officer Wright, but -- 22 A: Hmm hmm. 23 Q: -- not as to the substance of his 24 testimony -- 25 A: Hmm hmm.
2661 Q: -- but another issue. 2 A: Hmm hmm. 3 Q: I was struck, sir, in the transcript 4 by two (2) passages. 5 You'll note at page 21, Mr. McCabe, at the 6 very top of the page Officer Wright indicates that he has 7 been up all night -- excuse me, rather you -- you 8 question him: 9 "Have you been up all night? 10 Yes, I've been up since five o'clock 11 yesterday. 12 5:00 a.m. yesterday? 13 Yes." 14 And then I also noted that His Honour 15 Justice Daudlin made a comment in respect of the 16 officer's fatigue level. And if I can take you to page 17 47 of the transcript. And you may recall this actual 18 juncture within the proceedings. 19 Officer Wright, it would appear, was 20 seeking to leave the court and before doing so Justice 21 Daudlin wanted to make a point of putting certain 22 comments on the record that Officer Wright would have the 23 benefit of hearing in person. 24 And you'll note, around line 20, Justice 25 Daudlin indicates:
2671 "I'm fully cognizant of the fact that 2 he has been thirty (30) hours plus 3 without sleep." 4 Do you recall that? 5 Do you recall Justice Daudlin's comments 6 in that regard? 7 A: I -- I can't remember whether I 8 recall or whether it -- I -- I've recollected on the 9 basis of reading this transcript subsequently. Again, I 10 have a vague recollection of Justice Daudlin, yes, making 11 a comment of that sort. 12 Q: I understand. I also noted -- if I 13 could take you to Tab 34 of the materials before you, 14 we've heard testimony -- for the benefits of My -- 15 benefit, rather, of My Friends, this is Document 1011843 16 and if you give me a moment I'll have an exhibit number 17 for you. 18 19 (BRIEF PAUSE) 20 21 Q: Unfortunately I don't have it as 22 handy as I thought I might. I understand Mr. Millar will 23 assist me in a moment. 24 1011843, they're the handwritten notes, 25 we're told, of Eileen Hipfner and we've heard evidence,
2681 Mr. McCabe, that they record -- reduced to writing, 2 rather, perhaps is a better way of putting it, a 3 conversation she had by telephone with you. I 4 understand, thank you, it's Exhibit P-717. Thank you, 5 Mr. Millar. 6 I understand it -- it -- it's notes of the 7 conversation that she made and the conversation took 8 place with you on September the 7th. It -- it appears 9 that -- that you were calling her from either Sarnia or 10 parts unknown to give her an update as to what has 11 occurred and if you look at page 2 of the notes third 12 line down it says: 13 "PO fatigued. As he was walking out 14 judge interrupted to make speech about 15 his comments not being taken as 16 criticism of OPP action." 17 A: Yes. 18 Q: Again, you may not have, and I 19 wouldn't imagine that you would at this point, Mr. 20 McCabe, an independent recollection of conveying to Ms. 21 Hipfner that PO, which appears to refers to police 22 officer, which undoubtedly would refer to Officer Wright 23 in the context of -- 24 A: Yes. 25 Q: -- what's transpired, you probably
2691 don't recall making that comment one way or another to 2 Ms. Hipfner, but I trust you don't dispute the accuracy 3 of her notes in this regard? 4 A: I don't, no. 5 Q: So I trust that you'd agree with me, 6 with the benefit of all this you wouldn't dispute the 7 fact that Officer Wright was, indeed, quite exhausted on 8 the morning of September the 7th, in your presence. 9 A: I'm sure that was the case, yes. 10 Q: Thank you. One other area I'd like 11 to go into and that is the reason for abandoning the 12 Motion on September the 11th. 13 A: All right. 14 Q: I'd ask that you turn to Tab 48. I'd 15 also ask that Exhibit P-743 be put in front of Mr. 16 McCabe. 17 18 (BRIEF PAUSE) 19 20 Q: I do have an extra copy for Mr. 21 Commissioner and, for the benefit of My Friends, it's 22 Document 1005988. 23 A: Thank you. 24 25 (BRIEF PAUSE)
2701 Q: Now you'll note, if you actually look 2 at the substance of the two (2) statements side by side, 3 you'll see that they are different. 4 A: Hmm hmm. 5 Q: And, quite frankly, I don't think a 6 great deal turns on this. What I'm going to suggest, 7 though, having been persuaded by some comments by My 8 Friend, Ms. Twohig, is that it would appear that the 9 document that's been marked P-743, which is the loose 10 document you have, Mr. McCabe, appears -- 11 A: Yes. 12 Q: -- to be the final copy that was 13 ultimately read into the record. You'll note on the 14 faxed cover sheet that the comments reflect: 15 "Further to our telephone conversation, 16 attached is the statement read into 17 Court in Sarnia by Counsel for the 18 Plaintiffs today. 19 Further, the indication is this 20 document has also been provided to 21 media at Court." 22 And then it looks like it's got Elizabeth 23 Christie's initials. 24 A: Yes. 25 Q: Would it be reasonable then to
2711 assume, with that context, that this is likely the 2 document that you read into Court? 3 A: It seems reasonable. 4 Q: All right. 5 A: Yes. 6 Q: One other -- other point that Ms. 7 Twohig drew to my attention is that if you look at the 8 document that appears at Tab 48 of your materials, which 9 is 1003722. I don't think we actually made it an 10 exhibit. 11 COMMISSIONER SIDNEY LINDEN: Yes, it is. 12 It's Exhibit 743. 13 MS. ANDREA TUCK-JACKSON: I apparently 14 was -- no, no, no. Exhibit 743, Mr. commissioner, was 15 the document that was filed through -- 16 COMMISSIONER SIDNEY LINDEN: Oh, I'm 17 sorry. 18 MS. ANDREA TUCK-JACKSON: -- Ms. 19 Christie. 20 COMMISSIONER SIDNEY LINDEN: I may have 21 just marked on -- I thought it was. 22 MS. ANDREA TUCK-JACKSON: All right. 23 COMMISSIONER SIDNEY LINDEN: All right. 24 MS. ANDREA TUCK-JACKSON: Perhaps we 25 should make the document that appears at Tab 48, as well,
2721 an exhibit? All right, could that, then, Mr. Registrar, 2 be marked as the next exhibit. 3 COMMISSIONER SIDNEY LINDEN: I'm glad you 4 mentioned that. Exhibit 743 is the one that you are 5 referring to now, as opposed to the one that's in the 6 binder? 7 MS. ANDREA TUCK-JACKSON: The loose one 8 that we filed yesterday, sir, is Exhibit 743. 9 THE REGISTRAR: This will be P-756, Your 10 Honour. 11 MS. ANDREA TUCK-JACKSON: Thank you, Mr. 12 Registrar. 13 14 CONTINUED BY MS. ANDREA TUCK-JACKSON: 15 Q: One other difference that -- that I 16 note, in P-756, which is 1003722, I note that in the 17 second paragraph it says "they" which appears to refer to 18 the OPP, having -- have therefore instructed me to 19 withdraw the Motion that is before you. 20 It seems to me, Mr. McCabe, you wouldn't 21 be taking instructions from the OPP? 22 A: No, I don't think "they" refers to 23 the OPP in that document. I think it refers to the 24 Plaintiffs. 25 Q: I see, all right. Then I won't rely
2731 upon that as a way to explain that this document was not 2 the one likely read in Court. 3 If it assists -- 4 A: Right. 5 Q: -- you to read them a bit more, I 6 leave that up to you? 7 A: I don't think I can shed any light on 8 which of the two (2) -- 9 Q: All right. 10 A: -- was -- was read in Court. 11 Q: I want to get at something more 12 important and, frankly, my point doesn't depend on which 13 document was read in Court -- 14 A: Right. 15 Q: -- because the sentiment that I want 16 to highlight seems to find expression in both documents. 17 You'll note that, in both documents, 18 there's an indication that the OPP at least have provided 19 some advice or have had some input as to the ultimate 20 decision to withdraw the motion. 21 A: Yes. 22 Q: And you'd agree with me that one of 23 the concerns, it would appear, that was expressed by the 24 OPP, is they didn't want anything further to occur that 25 might inflame the situation.
2741 A: I'm afraid I have -- I didn't have 2 any, you know, communication with the OPP as to their 3 views with respect to this. I think any -- any 4 communication I had with anybody was probably with Mr. 5 Taman -- 6 Q: All right. 7 A: -- on the Sunday afternoon, who, no 8 doubt, would have been conveying to me the concerns of 9 the OPP. 10 Q: All right. And so I gather, then, 11 what you're telling us, it's fair to say, that what forms 12 the substance of both of these documents, was information 13 that was imparted to you by Mr. Taman? 14 A: Yes. I think that's right. 15 Q: All right. Mr. McCabe, thank you 16 very much for your time, sir. 17 A: Thank you. 18 Q: Those are my questions. 19 COMMISSIONER SIDNEY LINDEN: Thank you 20 very much. 21 Ms. Clermont you wanted to speak to me 22 about Mr. Sulman's attendance? 23 MS. JANET CLERMONT: Good afternoon, 24 Commissioner. 25 COMMISSIONER SIDNEY LINDEN: Good
2751 afternoon. 2 MS. JANET CLERMONT: I was so concerned 3 about Mr. Sulman I forgot to reserve some time for 4 myself. 5 COMMISSIONER SIDNEY LINDEN: Okay. 6 MS. JANET CLERMONT: And so I want a few 7 minutes just -- just a few minutes and -- and I haven't - 8 - I don't have an update on whether Mr. Sulman will be 9 cross-examining. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 12 CROSS-EXAMINATION BY MS. JANET CLERMONT: 13 Q: Good afternoon, Mr. McCabe. My name 14 is Janet Clermont and I'm one of the lawyers representing 15 the Municipality of Lambton Shores, which is formerly 16 Bosanquet Township -- 17 A: Yes. 18 Q: -- where the incident occurred. And 19 I -- I just have a few questions for you. One of the 20 purposes of the IMC meetings was to facilitate the 21 exchange of information; is that right? 22 A: Yes. 23 Q: And to get the facts on the table? 24 A: Yes. 25 Q: And would you agree with me in that
2761 gathering facts, where possible it's important that or 2 it's best to receive the information directly from the 3 source of those facts? 4 A: It seems reasonable, yes. 5 Q: And I'm wondering if you would agree 6 with me that in the future if a similar circumstance 7 arose involving a blockade or an occupation, if it would 8 be helpful to have external stakeholders at the table 9 such as the municipality. 10 What are your thoughts on that? 11 A: My thoughts? It, you know, it's been 12 a number of years since I've been an employee at -- of 13 the -- of the Ontario Government. It seems to me with 14 respect that the purpose of these meetings was for the 15 Provincial Government receiving information and input 16 from whomever, to -- the purpose was to facilitate 17 decision making by the Ontario Government. 18 It's, you know, my -- my initial reaction 19 to your suggestion is that, that suggestion would take it 20 -- would take this, you know, the -- the -- the matter 21 somewhat beyond that and, you know, make it a kind of 22 public forum. 23 Q: I see. 24 A: Which it wasn't intended to be, I 25 don't think.
2771 Q: And but -- and I wonder then in -- in 2 your past experience on the IMC committees and blockade 3 committees if that had ever been done in the past; 4 brought external stakeholders to the table to discuss 5 their concerns? 6 A: Not that I recall, no. 7 Q: And -- and would you agree that -- 8 that it would be helpful to, at least, have a form -- 9 some formal communication plan that would include -- that 10 would anticipate the inclusion of external stakeholders? 11 Or is that something you can address? 12 A: Well I -- I would balk a little bit 13 for the reason I just said about the word, 14 "participation." You know, it seems reasonable that -- 15 that the Committee ought to arrange its affairs in such a 16 way that it could receive timely information from persons 17 like municipal corporations, yes. 18 Q: All right. Thank you. Those are my 19 questions. 20 Thank you, Mr. Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. 23 Yes, Mr. -- I think Mr. Klippenstein is 24 next. I think you're next Mr. Klippenstein. I assume 25 Mr. Klippenstein. You're not going to do this, Mr.
2781 Alexander? 2 MR. BASIL ALEXANDER: Yes, Mr. 3 Klippenstein will be conducting this cross. 4 5 (BRIEF PAUSE) 6 7 COMMISSIONER SIDNEY LINDEN: Good 8 afternoon. 9 MR. MURRAY KLIPPENSTEIN: Thank you, 10 Commissioner. 11 12 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 13 Q: Mr. McCabe, as you may be aware I'm 14 one (1) of the legal counsel for the Estate of Dudley 15 George -- 16 A: Yes. 17 Q: -- and the Family of Dudley George? 18 A: Yes. 19 Q: And I'd like to ask you questions in 20 a number of areas beginning with the area of the 21 instructions that you or the litigation team if you will, 22 received from your client which I guess loosely speaking 23 is the Government. 24 And I'd like to know on the issue of the 25 timing or urgency of going to court for an injunction
2791 where those instructions originated. 2 Now, you've mentioned that you don't have 3 necessarily precise recollection about -- 4 A: Hmm hmm. 5 Q: -- the instruction process, but is it 6 fair to say in general that your instructions came to you 7 on the issue of the timing and urgency of the injunction 8 application from Larry Taman through Elizabeth Christie-- 9 A: Yes. 10 Q: -- am I correct so far? 11 A: That's the impression I have. 12 Q: Right. 13 A: Yes. 14 Q: And you got those instructions in 15 terms of the timing of the injunction on the early 16 afternoon of September 6? 17 A: It appears so, yes. 18 Q: And in fact you had those 19 instructions before your phone calls, before either your 20 phone call or Ron Fox's phone call to Incident Commander 21 Carson? 22 A: I'm not sure of that. 23 Q: All right. I'll come back to that 24 with a -- 25 A: All right.
2801 Q: -- with some further details. 2 And the instructions as to timing of the 3 injunction that Ms. Christie described in her evidence 4 yesterday was that she'd had a hallway conversation with 5 Larry Taman, the Deputy Attorney General probably in the 6 early afternoon of September 6. 7 And that the -- that those instructions 8 were to get an injunction just -- absolutely just as soon 9 as possible and in particular she was to attempt to 10 schedule an injunction hearing on the afternoon of 11 September 6th in Toronto? Now... 12 A: That -- that -- 13 Q: My -- my -- 14 A: That's my understanding, now, yes. 15 Q: I was going to ask, I wasn't sure 16 whether you actually had any recollection of her attempts 17 to schedule an injunction the afternoon of the 6th in 18 Toronto? 19 A: I don't have any, you know, very 20 clear recollection of what she told me. You know I'm 21 sure she would have, you know, at the time told me what 22 she was up to and, you know, what she, you know, we were 23 -- we were both trying to move as quickly as we could to 24 fulfill these instructions. 25 And she probably would have told me, you
2811 know, virtually as she was doing it about the -- the 2 results of her inquiries as to whether it would be 3 possible to proceed today and -- and ultimately it was 4 arranged that this was going to occur the next day in 5 Sarnia. 6 Q: Okay. And let me just focus on that 7 afternoon, the -- the possible attempt in the afternoon 8 of the 6th before I -- before I move on. 9 Ms. Christie was very clear that she had 10 phoned the trial coordinator in Toronto at the specific 11 suggestion of Larry Taman to attempt to schedule it on 12 the afternoon of the 6th. 13 You don't have any problem or any reason 14 to disagree with her evidence on that? 15 A: That's right, yeah. 16 Q: And she was -- she described being 17 very anxious when it occurred to her that she might, 18 presumably together with you, be actually arguing an 19 injunction application on the -- that afternoon in 20 Toronto. 21 And you've mentioned that -- in your 22 evidence that you perhaps recall or surmise that she came 23 into your office somewhat breathlessly at one (1) point 24 in the early afternoon of the 6th to describe some of 25 this. So is it...
2821 A: That -- that's a surmise. 2 Q: Yeah. 3 A: I don't know that she was breathless. 4 Q: The point is there are -- there 5 appear to be at that time, when there was a possibility 6 of an injunction application on the afternoon of the 6th 7 in Toronto, that you would have to move very, very 8 quickly; is that fair? 9 A: Yes. I mean it's possible that she 10 didn't report to me the fact that she had been told to do 11 this and that she had indeed made the inquiries until 12 after she'd done it. 13 You know, and she said, well, she -- 14 Q: She came to you with the good news, 15 that you didn't have to do it? 16 A: Yes, yes. It turns out that that's 17 impossible. 18 Q: Be that as it may, you don't doubt 19 her evidence that she was instructed to attempt to do 20 that on the afternoon of the 6th? 21 A: No. 22 Q: Now, you've described what you think 23 you recall as a meeting with Larry Taman and others early 24 on the morning of the 6th? 25 A: Yes.
2831 Q: And that Mr. Taman's approach as the 2 deputy Attorney General at that point was not to move 3 post haste on an injunction, is that right? 4 A: Yes, or -- or -- I, you know, I don't 5 think he was -- that he was dismissing the possibility 6 but he wanted to -- I have an impression that what he 7 wanted to do was to, as I think I said this morning, 8 explore other options. 9 Again, those are my words, probably, but - 10 - but, yes, he was -- he was going to think about it or 11 he was going to talk to other people about it, yes. 12 Q: Right. And would you agree with me 13 that there appears to be a contrast between your 14 impression of Mr. Taman's attitude towards an urgency of 15 an injunction early on the morning of the 6th and Mr. 16 Taman's attitude to an injunction in the early afternoon 17 when he instructed Ms. Christie to attempt to get one 18 that afternoon? 19 A: Yes, there's certainly a tension 20 between those two (2) ideas, yes. 21 Q: Right. And is it fair to say that it 22 appears that Mr. Taman had changed his position in the 23 interim? 24 A: Yes. 25 Q: And we've heard evidence that there
2841 was a meeting or, first of all, is there anything that 2 you're aware of that would have changed Mr. Taman's 3 position that came out of the meeting of the IMC that you 4 participated in on the morning of the 6th? 5 When you left the meeting on the 6th, were 6 you aware of anything that would have changed Mr. Taman's 7 position on that score? 8 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 9 Twohig...? 10 MS. KIM TWOHIG: Sorry, I just wanted to 11 be sure that -- that we're fair here, that it was not Mr. 12 Taman's position, necessarily, but his instructions that 13 changed. 14 COMMISSIONER SIDNEY LINDEN: Well, that-- 15 MS. KIM TWOHIG: Because he may have been 16 given instructions by someone else and it may not have 17 been his own position. 18 COMMISSIONER SIDNEY LINDEN: That's fair, 19 that's fair. That's a fair comment, I think. 20 MR. MURRAY KLIPPENSTEIN Yes, thank you, 21 and I didn't mean to -- to fail to make that distinction. 22 THE WITNESS: Yes. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: Maybe I just can clarify that --
2851 A: Well, I took it in that light -- 2 Q: Yes. 3 A: -- that though his position had 4 changed, it may be as a result of instructions that he'd 5 received, yes. 6 Q: And there's a distinction as a lawyer 7 for the Government using the term government loosely, 8 between advice and instructions and you or Ms. Christie 9 or Mr. Taman may give advice and then re -- give advice 10 to your client, the Government, and receive instructions 11 which may differ quite a bit from the advice you've 12 given; is that fair? 13 A: Yes, I -- I, you know, yeah. In 14 principle, that's -- that's right. 15 Q: That's inherent in your role as a 16 lawyer? 17 A: Yes. 18 Q: Yes. And so if Mr. Taman may have 19 had a -- a view and a -- and some -- a position in terms 20 of advice early in the morning of the 6th but when he had 21 a contrasting position early in the afternoon of the 6th, 22 that may have been as a result of his instructions to 23 him, is that correct? 24 A: Yes, that may well have been, yes. 25 Q: Okay. And is there any reason to
2861 think that the IMC meeting on the morning of the 6th 2 changed Mr. Taman's position? 3 A: I wouldn't have thought so, no. 4 Q: And we've heard some evidence and I 5 anticipate we'll hear more evidence that after the IMC 6 meeting on the morning of the 6th which you attended, 7 which I gather ended at around 11:30-ish or something 8 like that, that there was a meeting in the then Premier 9 Harris' dining room involving Ipperwash. 10 And are you aware of anything that would 11 suggest whether or not Mr. Taman's attendance at that 12 meeting might have changed his position or instructions? 13 A: Yeah, see I don't know about the 14 meeting. 15 COMMISSIONER SIDNEY LINDEN: I don't know 16 how you can answer that? 17 MR. MURRAY KLIPPENSTEIN I'm just asking 18 -- I'm just asking the Witness -- 19 COMMISSIONER SIDNEY LINDEN: Yes, well -- 20 MR. MURRAY KLIPPENSTEIN -- whether he 21 knows. 22 THE WITNESS: Well, you know, I -- I 23 think the first point is, I have no knowledge of the 24 meeting. 25
2871 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: Now, you didn't -- to the best of 3 your recollection speak with Mr. Taman after that 4 meeting, early on the 6th and the afternoon when you 5 began work on -- 6 A: Right. To the best of my 7 recollection I didn't speak to Mr. Taman after the early 8 morning meeting, no. 9 Q: Okay. I would ask you to turn to a 10 binder which I believe we provided to you that contains a 11 variety of documents that has -- there's a binder that 12 has meeting notes which is not the one I'm asking you to 13 refer to. And I believe you have the correct one before 14 you. 15 And I would ask you to turn to Tab 10 16 which is apparently, according to the evidence, 17 handwritten note of Larry Taman. And is of September 6th 18 and that's Exhibit P-550. 19 Do you see at the top of that page a 20 short entry headed "ONAS Meeting re Ipperwash," do you 21 see that? 22 A: Yes. 23 Q: First of all we've heard or will hear 24 evidence that that is the handwriting of Larry Taman. 25 Presumably you had a significant amount
2881 of contact with Larry Taman over the years; is that fair? 2 A: I don't think that's -- that's right, 3 no. 4 Q: Okay. My question was whether you 5 are in a position to then confirm or deny or illuminate 6 whether that's his handwriting? 7 A: I'm not, no. 8 Q: Okay. All right. We've heard 9 evidence in the course of proceedings and anticipate 10 further that is indeed his handwriting and that it says: 11 "AG instructed by P [or for the 12 Premier] that he desires removal within 13 twenty-four (24) hours - instructions 14 to seek injunction." 15 Now Larry Taman was the Deputy Attorney 16 General at the time, is that right? 17 A: Yes. 18 Q: And so he was the most senior civil 19 servant dealing with the Attorney General personally, is 20 that right? 21 A: Yes. 22 Q: And is the instructions you received 23 on the early afternoon of September 6th as you perceived 24 them, consistent with the description in this note? 25 You may not have got the same amount of
2891 detail or background, but is there any conflict between 2 your instruction as you perceived them and this note? 3 A: No. I don't think there's any 4 inconsistency, no. 5 Q: No -- no inconsistency? 6 A: Right. 7 Q: Okay. 8 MR. MURRAY KLIPPENSTEIN: Commissioner, I 9 -- I -- this is a bit of a pause in my examination. I'm 10 happy to proceed further. I don't know what time you 11 intended to break or? 12 COMMISSIONER SIDNEY LINDEN: How do you 13 feel? Can you go a little longer or would you like -- we 14 start at nine o'clock. It's a long day for you -- 15 THE WITNESS: Right. Well I -- 16 COMMISSIONER SIDNEY LINDEN: You're in 17 our hands? 18 THE WITNESS: I -- I think my preference 19 would be to stop now and start at nine o'clock. 20 COMMISSIONER SIDNEY LINDEN: All right 21 we'll stop now. We usually do stop at 4:30 when we start 22 at 9:00. So I think this would be a good place to stop 23 and we'll being at nine o'clock in the morning. 24 THE REGISTRAR: This Public Inquiry is 25 adjourned until tomorrow, Thursday, September 29 at 9:00
2901 a.m. 2 3 --- Upon adjourning at 4:31 p.m. 4 5 6 7 Certified Correct 8 9 10 11 12 ________________________ 13 Dustin Warnock 14 15 16 17 18 19 20 21 22 23 24 25