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 29th, 2004 25
21 Appearances 2 3 Derry Millar ) Commission Counsel 4 Susan Vella ) 5 Donald Worme, Q. C ) 6 Katherine Hensel ) 7 8 Murray Klippenstein ) The Estate of Dudley 9 Vilko Zbogar ) (np) George and George Andrew 10 Andrew Orkin ) Family Group 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) Residents of 16 Kevin Scullion ) Aazhoodena 17 (Army Camp) 18 19 William Henderson ) Kettle Point & Stoney 20 Jonathon George ) Point First Nation 21 22 Kim Twohig ) (np) Government of Ontario 23 Walter Myrka ) (np) 24 Sue Freeborn ) (np) 25
31 APPEARANCES (cont'd) 2 3 Janet Clermont ) Municipality of 4 David Nash ) (Np) Lambton Shores 5 6 Peter Downard ) The Honourable Michael 7 Bill Hourigan ) Harris 8 Jennifer McAleer ) 9 10 Nancy Spies ) Robert Runciman 11 Alice Mrozek ) (Np) 12 13 Harvey Stosberg ) (np) Charles Harnick 14 Jacqueline Horvat ) (np) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Trevor Hinnegan ) (np) 18 19 Mark Sandler ) Ontario Provincial 20 Andrea Tuck-Jackson ) Police 21 22 Ian Roland ) (np) Ontario Provincial 23 Karen Jones ) Police Association & 24 Debra Newell ) K. Deane 25
41 APPEARANCES (cont'd) 2 3 Julian Falconer ) (np) Aboriginal Legal 4 Brian Eyolfson ) Services of Toronto 5 Julian Roy ) 6 7 Al J.C. O'Marra ) Office of the Chief 8 Coroner 9 10 William Horton ) Chiefs of Ontario 11 Matthew Horner ) 12 Kathleen Lickers ) (Np) 13 14 Mark Frederick ) (np) Christopher Hodgson 15 Craig Mills ) (np) 16 Megan MacKay ) 17 18 David Roebuck ) (Np) Debbie Hutton 19 Anna Perschy ) 20 Melissa Panjer ) (np) 21 Danya Cohen-Nehemia ) 22 23 24 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 4 MARLIN DOUGLAS SIMON, JR, Resumed: 5 Continued Examination-In-Chief 6 by Ms. Susan Vella 7 7 8 Discussion 112 9 10 Motion by Chiefs of Ontario: 11 Submission by Mr. William Horton 118 12 Submission by Mr. Murray Klippenstein 142 13 Submission by Mr. Andrew Orkin 157 14 Submission by Mr. Peter Rosenthal 163 15 Submission by Mr. William Henderson 169 16 Submission by Mr. Brian Eyolfson 177 17 Submission by Mr. Mark Sandler 179 18 Submission by Ms. Karen Jones 195 19 Submission by Ms. Nancy Spies 201 20 Submission by Ms. Megan MacKay 201 21 Submission by Mr. Peter Downard 203 22 Submission by Mr. Douglas Sulman 204 23 Submission by Ms. Anna Perschy 208 24 Submission by Mr. Al O'Marra 210 25 Submission by Ms. Kim Twohig 214
61 TABLE OF CONTENTS (Cont'd) 2 Page No. 3 4 Submission by Mr. Derry Millar 218 5 Reply by Mr. William Horton 224 6 Reply by Mr. Murray Klippenstein 228 7 8 (Final portion of Transcript in-camera - sealed) 9 10 11 12 13 Certificate of Transcript 234 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 10:00 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 7 (BRIEF PAUSE) 8 9 MARLIN DOUGLAS SIMON, JR., Resumed: 10 11 MS. SUSAN VELLA: Good morning, Mr. 12 Commissioner. 13 COMMISSIONER SIDNEY LINDEN: Good 14 morning. 15 MS. SUSAN VELLA: Good morning, Mr. 16 Simon. 17 THE WITNESS: Good morning. 18 MS. SUSAN VELLA: As you know, you're 19 still under oath today. 20 THE WITNESS: Yeah. 21 MS. SUSAN VELLA: Thank you. 22 23 CONTINUED EXAMINATION-IN-CHIEF BY MS. SUSAN VELLA: 24 Q: Now, yesterday you testified that you 25 were amongst the initial group of aboriginal people who
81 entered the Park -- Ipperwash Provincial Park -- on 2 Monday, September the 4th. Is that right? 3 A: Yes, I am. Yes, it was. 4 Q: Approximately what time of day on 5 September the 4th did you enter the park? 6 A: Approximately what time? I'd say 7 around supper time -- evening. 8 Q: Okay. And I wonder, do you have the 9 map of the Ipperwash Military Reserve and Park in front 10 of you that you marked up yesterday? 11 A: Yes, I do. 12 Q: All right. And it's also on the 13 screen. It's Exhibit P-60. Now, I wonder if you could 14 just -- let me -- do you have the laser pen up there? 15 A: No, I don't see it anywhere. 16 Q: Okay. I wonder if you -- I wonder if 17 you can tell us where approximately you entered the park? 18 All right. Commissioner, I wonder if we could just have 19 a one (1) minute break while we find a better map? 20 21 (BRIEF PAUSE) 22 23 Q: You'll see that the Ipperwash 24 Provincial Park is in the left-hand side of screen. 25 A: Yes.
91 Q: And where approximately did you enter 2 the Park? 3 A: It was on the eastern side of the 4 Park. I don't have a pointer here. 5 Q: All right. We're just getting a 6 pointer for you actually. 7 A: All right. 8 Q: In the meantime maybe you can take 9 the map that's before you and mark it with X 8, I believe 10 is the next number, -- 11 A: Yeah, I think so. 12 Q: -- the approximate location at which 13 you entered the Park? Okay. Just give us a second, 14 we're going to get you a laser pointer. 15 16 (BRIEF PAUSE) 17 18 Q: Go ahead. 19 A: All right. We entered at the eastern 20 side of the Park, I guess it is, right where the roadway 21 comes out, there is a gateway there and it was blocked 22 off by a big cement barrier for like most of the summer. 23 We were originally planned to go in right 24 on by the beach but they pulled that block away and there 25 was just like a fence that was -- or a chain that was
101 holding that gate shut. So we just went up and cut there 2 and entered through there. 3 Q: All right. And the roadway in 4 question is Matheson Drive, approximately? 5 A: Yeah, we were on Matheson Drive and 6 I'm not sure what -- there's a roadway that goes all the 7 way across the Park where that gateway comes out. 8 Q: Okay. Basically it's these 9 southeastern corner of the Park? 10 A: I might say that more the 11 northeastern I guess. 12 Q: Okay. Thank you. And you said that 13 -- that you cut the chain or someone cut the chain. Do 14 you know who cut the chain to the fence? 15 A: I think it was Nicholas Cottrelle. 16 Q: All right. And did any other 17 individuals enter the Park at that time with you? 18 A: Yes. There was quite a -- there was 19 a big, kind of a -- big line of vehicles that were 20 following us when we went in. 21 Q: All right. Approximately how many 22 vehicles? 23 A: I'd say maybe seven (7) or eight (8) 24 somewhere around there. 25 Q: All right. And approximately how
111 many people, therefore, entered the Park at that time? 2 A: Maybe about a dozen, 15 (fifteen), 3 twenty (20), somewhere around there. 4 Q: All right. And describe your 5 feelings as you entered into Park at that moment. 6 A: My feelings? They were kind of -- 7 well the gateway was blocked off so they opened up that 8 gateway, like there was a big cement barrier and they 9 pulled that thing away so we could go through there. And 10 it kind of seemed like they were setting up a trap or 11 something. 12 Q: Well, who -- who is they? 13 A: The Park people and the police. 14 There was a lot of OPP people -- or OPP cars there and 15 OPP officers around at the time. 16 Q: And who removed the cement barrier? 17 A: I'm not sure. Probably some of the 18 maintenance people from the Park. 19 Q: Not anyone from your group? 20 A: No. 21 Q: Okay. And tell me what happened 22 after the chain was cut and the barrier removed? 23 A: We opened up the gate and the police 24 kind of pulled back a little bit and we started driving 25 and everybody just followed each other in.
121 Q: All right. Approximately how many 2 police -- were there any police vehicles in the Park? 3 A: Yeah. Yes there was. 4 Q: Approximately how many did you see? 5 A: Maybe about six (6) at the most. 6 Q: All right. 7 A: There seemed like there was about 8 three (3), maybe three (3) right around the general area 9 of the gate where we were, where we come in. 10 Q: And where were the other three (3)? 11 A: They were out and around. 12 Q: Just circulating in the Park, you 13 mean? 14 A: Yeah. 15 Q: All right. And were there any police 16 officers on foot that you saw? 17 A: Yes, there was. 18 Q: And approximately how many? 19 A: Again, I'd say about half a dozen, 20 six (6). 21 Q: And is this in addition to the police 22 officers in the cruisers? 23 A: Some -- yeah, I guess, yeah. 24 Q: All right. You also -- can you tell 25 me where the -- the foot patrol officers were when you
131 entered the Park? 2 A: They were right at the gateway. 3 Q: And did anybody -- did any police 4 officer indicate or say anything to the members of your 5 group as you cut the chain? 6 A: Yeah, I do believe he did say 7 something, but I'm not sure what it was. 8 Q: Did you -- you didn't hear it? 9 A: I think I did hear it, but I can't 10 remember what it was. 11 Q: All right. 12 A: You also indicated that there were 13 some Park workers there? 14 Q: Yup. 15 A: Approximately how many did you see? 16 Q: How many did I see? Not a lot, just 17 probably four (4) or five (5) maybe. 18 A: All right. And were there any Park 19 officials that you recognized? 20 Q: No, not right there, no. 21 A: All right. Now, tell us what your 22 actions were once you started driving -- oh, I'm sorry, 23 did you enter the Park in a car or on foot? 24 A: Yes, I was in a car. 25 Q: All right. And tell me where the
141 line of vehicles went from your group as they passed 2 through the gate. 3 A: We started cruising down a street 4 right here, like the police started pulling off towards, 5 I guess a built up area of the Park, and cars started 6 following him. 7 And there was one car that -- one police 8 car that kind of veered off and went around this other -- 9 there's another laneway through here, so I kind of pulled 10 up behind him and followed him. And the rest of the cars 11 carried on down this roadway. 12 Q: All right. And the roadway you're 13 referring to is an internal road to the Park? 14 A: Yeah. It's inside the Park. 15 Q: All right. And basically going from 16 east to west? 17 A: Yes. 18 Q: And the road appears to be closer to 19 the beach than to Matheson Drive? 20 A: Yeah. 21 Q: All right. 22 23 (BRIEF PAUSE) 24 25 Q: All right. This is another map
151 specific to -- specific to the Park, and it's Inquiry 2 Document Number 2000 -- 1002408 -- 9, excuse me. 3 COMMISSIONER SIDNEY LINDEN: What's the 4 number again? 5 MR. DERRY MILLAR: 1002409. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MS. SUSAN VELLA: 11 Q: Perhaps you can just show us on this 12 map, the road that you took -- 13 A: All right. 14 Q: -- in the Park. 15 A: The gateway would be right here 16 somewheres and the police officer that I followed, turned 17 down this way and he started down this road and this is 18 which way I went while the rest of the people went down 19 this road. 20 Q: All right. Unfortunately these roads 21 don't have names that we're aware of -- 22 A: No. 23 Q: -- so it makes it a little bit 24 difficult. 25 A: Yeah.
161 Q: Okay. All right. Did you observe 2 any -- any day-campers or tourists in the Park when you 3 entered? 4 A: There might have been some day 5 visitors around, yeah. 6 Q: All right. And what happened to 7 them? 8 A: The police rounded them up and said 9 that -- informed them to leave the Park right away. 10 Q: All right. And were there any 11 altercations as between any members of your group and -- 12 and the day campers or day tourists? 13 A: No, there wasn't. 14 Q: Now, did you observe anyone from the 15 Park or from the police attempt to deliver any type of 16 document to anyone in your group at this time? 17 A: At this time? Let's see. Yeah, 18 everybody followed the police down over here -- 19 Q: To -- to the -- 20 A: -- and there was kind of like a 21 congregation, I guess, of people over here and police 22 officers down here and one (1) of the Park officials come 23 over and handed the keys to Park -- like all the 24 buildings to the keys in the water treatment plant right 25 here and the keys to all the buildings over to -- I think
171 it was Les Jewel, maybe. I'm not sure who it was. 2 Q: All right. Then you -- just so that 3 the record is clear, the congregation of the people that 4 you referred to were assembled in or around the permit 5 office location which is towards the westerly end of the 6 Park, past the bridge? 7 A: Yes. 8 Q: All right. Okay. Did you observe -- 9 did -- did anyone from the police or the Park tell you 10 that you should leave or that you were trespassing? 11 A: No. 12 Q: Were there any physical confrontations 13 that occurred at this time as between any of the Park 14 occupants and any member of either the police or Park 15 officials? 16 A: No. 17 Q: All right. What happened thereafter? 18 A: Well, pretty much nothing. There was 19 some people that went over and checked out the water 20 treatment plant with a Park official and -- to get kind 21 of a basic idea of what to do there. 22 Q: All right. And did you form any 23 impressions as to whether or not the police or the Park 24 officials expected something like this was going to be 25 happening?
181 A: Yes. I do believe that they were 2 expecting it? 3 Q: And why is it that you believe that? 4 A: Just the buildup of police that were 5 around and kind of the positions that they set up. 6 Q: What positions had they set up? 7 A: They were all along this -- the 8 eastern end of the Park. So, like, there's pretty much 9 nothing along there. 10 Q: Okay. And just to be clear, what 11 route did you take from Camp Ipperwash to get into the 12 Park? 13 A: From Camp Ipperwash? I just went all 14 the way along the inside of the military base to right 15 along parallel with Army Camp Road and then -- 16 Q: I'm sorry, along Army Camp Road? 17 A: Yeah. 18 Q: Parallel to Army Camp Road? 19 A: Yeah. 20 Q: Because you were on the eastern side 21 of the Park. 22 A: No, we were at the southern -- 23 southern part of the Park when we were -- yeah. I'm 24 just going inside of the fence here, there's a roadway 25 and over to this way.
191 Q: All right. So, just for the record, 2 you travelled along the road parallel to Army Camp Road 3 north? 4 A: Yeah. 5 Q: And you turned east. 6 A: East -- yes, I did. 7 Q: On -- was that Matheson Road or -- 8 A: I think I was still on the inside of 9 the military base then. 10 Q: Okay, so an internal road to the 11 military base -- 12 A: Yeah. 13 Q: -- that parallels Matheson? 14 A: Yeah. 15 Q: And then you turned north at the 16 eastern end of the Park? 17 A: Yes, I did. 18 Q: Along a road that, again, is inside 19 the -- the Park area but parallel to Outer Drive? 20 A: I think -- yeah. 21 Q: All right. And then you turned west. 22 A: Yeah, west. 23 Q: Inside the Park along the road and 24 over the bridge near the water treatment plant. 25 A: Yeah.
201 Q: So, is that basically your route? 2 A: Yes, it is. 3 Q: All right. Did the -- did the police 4 and Park officials continue to stay in the Park after the 5 keys were handed over? 6 A: I'm not sure about the Park officials 7 but I know the police did stay. 8 Q: All right. And can you just describe 9 what you saw thereafter? 10 A: Just the police were sitting around 11 the -- by the gateway and I thought they were preparing 12 to leave or something but they were just pretty much 13 sitting around. 14 Q: Okay. And "by the gate", which gate 15 are you talking about? 16 A: The gate to the Park. It would be 17 like right in here somewhere. 18 Q: All right. So this is near the -- 19 A: Like -- yeah, in between that ticket 20 booth and the gate to the Park. 21 Q: And that's near the intersection of 22 East Parkway Drive and Army Camp Road, is that right? 23 A: Yeah. 24 Q: Okay. And what was your group doing 25 while the police were essentially stationed in that
211 position? 2 A: There was some -- there was a group 3 of people that kind of stuck around here and then there 4 was like other people were going all over the place 5 checking things out. 6 Q: Yeah. 7 A: I did a check all the way around the 8 Park where we -- okay, I went around -- around the Park 9 around this way and -- 10 Q: So you were doing a -- a check around 11 the Park yourself? 12 A: Yeah. Just, I don't know, just see 13 if there was anybody else left in there and that. 14 Q: Okay. Why were you looking to see if 15 anyone was left? And you're talking I assume about day 16 users of the Park? 17 A: Yeah. Well just to inform them that 18 something was going on and they should leave, I guess. 19 Q: All right. Now did the police stay 20 there for the balance of the evening? 21 A: Yes, they did. 22 Q: And how about you? 23 A: Yeah, I stayed there for quite a 24 while. 25 Q: Were there any further interactions
221 as between any members from your group and the police 2 that you witnessed or observed that evening? 3 A: Yeah. Just kind of repeated, I don't 4 know, demands for the police to leave the Park, I guess. 5 Q: Who was making those demands? 6 A: Just whoever, anybody. 7 Q: And did you -- 8 A: And then -- what's that? 9 Q: Go ahead. 10 A: Oh. And then after a while it was 11 after dark I think and then the police were still around 12 there and I think it was Judas come around and he told 13 them that they had so much amount of time to get out of 14 the Park. And then when that time was up and I think he 15 went over there and broke one of the windows or 16 something. 17 Q: Broke what window? 18 A: Broke a window on a police cruiser. 19 Q: Did you see that? 20 A: Yeah. 21 Q: And what did he use to break the 22 police cruiser window? 23 A: I don't know, just some little stick. 24 Q: And which police -- which window on 25 the cruiser did he break?
231 A: I think it was a back window. 2 Q: All right. And did he actually 3 shatter the window or -- 4 A: Yeah. 5 Q: And what was it that he used to do 6 that? 7 A: It was just a thin little piece of 8 stick. I believe it was part of a crutch or something, 9 cane or something maybe. 10 Q: All right. Do you know what it was 11 made of? 12 A: Wood. 13 Q: And what happened thereafter that you 14 saw? 15 A: The police all jumped in their 16 vehicles and made a quick -- quick getaway. 17 Q: And approximately what time of the -- 18 in the evening did this occur? 19 A: I think it was just -- just after 20 dark. I'd say probably about 10:30 maybe, ten o'clock, 21 somewhere around there, just after dark anyways. 22 Q: All right. And at that point who was 23 left remaining in the Park? 24 A: Who was left? Just us. 25 Q: And approximately how many of you
241 were there at that point? 2 A: At that point I'd say -- I'd say 3 about fifteen (15) to twenty (20). 4 Q: All right. And can you tell me the 5 composition of the group in terms of age and gender? 6 A: It was all mixed up. All different - 7 - kids and old people. 8 Q: And young men? 9 A: Yeah. Young men, women, children, 10 old people, Elders. 11 Q: Did you witness any other 12 altercations or interactions between any members of your 13 group and members from the police or the Park that 14 evening? 15 A: Let's see. I don't know, not really. 16 Just -- and that's pretty much it. 17 Q: All right. Are you aware as to 18 whether or not any guns were brought into the Park by any 19 of the people in your group that evening? 20 A: There was no guns at all brought in. 21 Q: All right. And how do you know that? 22 A: Just everybody knew that this was 23 going to be a peaceful thing, that we weren't doing an 24 armed occupation or anything, it was just a peaceful -- 25 just a occupation.
251 Q: Were there any discussions amongst the 2 group addressing the propriety of having guns or weapons 3 in the Park prior to entering it? 4 A: Yeah, I guess. Everybody thought it 5 would be a bad idea for -- to bring guns in. Like, if we 6 brought guns in then it would give the OPP reason just to 7 come in and take us right out and move us out. 8 Q: How long did you stay in the Park that 9 night? 10 A: How long did I stay in the Park that 11 night? I'd say maybe about 3:00 or 4:00 in the morning. 12 Q: And were there any people left in the 13 Park when you left at 3:00 or 4:00 in the morning? 14 A: Yes, there was. 15 Q: Approximately how many? 16 A: I'm not sure, maybe a dozen or so. 17 Q: And can you tell us, to the best of 18 your recollection, which individuals remained in the Park 19 that night? 20 A: I'm not sure who all remained back 21 then but I know that Dudley and JT stayed out all night. 22 Q: So, Dudley George and -- 23 A: Dudley George and JT Cousins 24 (phonetic). 25 Q: All right. And you believe a few
261 others. 2 A: Pardon? 3 Q: And you believe a few others. 4 A: Maybe. 5 Q: Maybe? Okay. 6 A: Yeah. Well, there was quite a few 7 whenever I left. There were still a few in there. 8 Q: Did -- did your group take any steps 9 or measures to secure the Park that evening? 10 A: Secure as in...? 11 Q: As in measures to keep some people 12 out? 13 A: I don't know, just kind of had 14 observation points set up all around. 15 Q: Where were the observation points 16 located, approximately? 17 A: Approximately, I'd say there was one 18 (1) right about here -- 19 Q: And can you just describe where "here" 20 is? 21 A: There's a parking lot right along in 22 here and it's, like -- right beside there's a stairway 23 that goes down to the beach area. There was a -- kind of 24 a post there, I guess. Then there was another building 25 over on this side of the parking lot -- sort of a store -
271 - variety store and there was a bunch of people around 2 there. 3 Then there was another one over by the 4 water treatment plant. You could see all the way down to 5 the beach and I think there was another one at the 6 gateway over here somewhere and another one down on 7 Matheson Drive. 8 Q: Matheson Drive and Army Camp Road? 9 A: Yeah. 10 Q: Any -- any observation areas on the 11 opposite side of the Park? 12 A: Over this way? 13 Q: Yes. 14 A: No, but there was people -- like a lot 15 of people around and moving around and exploring. 16 Q: Were you part of the -- were you one 17 (1) of the ones who -- who took measures to secure the 18 Park? 19 A: Yeah. 20 Q: And what was your role that evening, 21 specifically? 22 A: I don't know, just to see if there was 23 any movement. 24 Q: Did you actually -- were you stationed 25 at any of these observation points?
281 A: I was kind of like moving around to 2 different ones. 3 Q: All right. And were you on your own 4 or -- or was someone else with you? 5 A: There was probably somebody with me 6 all the time. 7 Q: All right. Can you recall who? 8 A: No, it would be different all the 9 time. 10 Q: Different individuals? 11 A: Yeah. 12 Q: Okay. And to your knowledge -- guns 13 aside -- were there any other weapons or man-made weapons 14 that were brought into the Park that evening? 15 A: Let's see, maybe some baseball bats or 16 something. 17 Q: Baseball bats? 18 A: Yeah. 19 Q: All right. Do you know who brought 20 those in? 21 A: Just -- pretty much everybody had one 22 (1). 23 Q: When you say, "everybody", what do you 24 mean by that? 25 A: I don't know. Everybody kind of
291 carried a baseball or a club of some sort around. 2 Q: Does that include the children? 3 A: I don't know if they had any. No, I 4 wouldn't say they had any. 5 Q: Okay. Just try to be as specific as 6 you can. 7 A: Just -- I don't know -- I think even 8 my mother might have even had a bat or something with 9 her. 10 Q: All right. Anything else besides 11 baseball bats that were brought into the Park that could 12 be used as weapons? 13 A: No, that would be about it. 14 Q: All right. Did you hear anything that 15 evening that sounded like gunshots? 16 A: Firecrackers and fireworks. 17 Q: And do you know what the source of 18 those firecrackers and fireworks were? 19 A: The source -- what do you mean? 20 Q: Well, did they come from within the 21 Park or outside the Park? 22 A: They were inside the Park, yeah. 23 Q: All right. And were they being lit 24 by somebody? 25 A: Hmm hmm.
301 Q: And do you know who? 2 A: Just all kinds of different people, 3 Caydence (phonetic). 4 Q: So people amongst the occupants? 5 A: Yeah. 6 Q: And do you know what time of night 7 those went -- were set off? 8 A: What time of night? Pretty much all 9 through the night. 10 Q: Okay. Any other sounds, uprising or 11 approaching gunshots, that you heard? 12 A: Just maybe security alarms from the 13 buildings. 14 Q: Did they sound like gunshots? 15 A: No, they didn't sound like gunshots, 16 but that was like one (1) of the only other sounds that 17 you could hear. 18 Q: All right, so as people were entering 19 some of the buildings, they were triggering alarms? 20 A: Yeah. 21 Q: And did those get turned off 22 eventually? 23 A: Yeah. 24 Q: How did they -- 25 A: I was in one (1) of the buildings and
311 the phone rang and, I think it was a police officer on 2 the other end, and he gave us a code to punch into the 3 alarm system, so that it would shut the alarms off. 4 Q: Okay. Did the police officer 5 identify himself? 6 A: I'm not sure, I wasn't one (1) of the 7 ones that answered the phone. 8 Q: All right. Now, did you go hunting 9 that night at all? 10 A: That night, no. 11 Q: Yes? Do you know whether anyone from 12 your community went hunting that evening? 13 A: I'm not sure, maybe, I doubt it 14 though. 15 Q: All right. I just want you to -- 16 A: I really -- 17 Q: -- speak from your personal 18 knowledge. 19 A: I don't have a clue. 20 Q: Okay. And to your knowledge, were 21 any traditional ceremonies or practises performed that 22 particular evening on entering the Park? 23 A: I think there might have been like a 24 little, just like a smudging ceremony, where everybody 25 kind of sits around, and -- or kind of joins hands in a
321 big circle, and somebody goes around, smudges and 2 somebody has something to say or they just say it. 3 Q: And you -- 4 A: It's kind of like a, I don't know 5 what you'd call it, a circle or something. 6 Q: All right. Can you just describe 7 what the purpose of smudging is, please? 8 A: Smudging is just to purify yourself, 9 clear -- clear your thoughts, and.. 10 Q: And I understand that it involves 11 burning a substance? 12 A: Yes, it does. 13 Q: What -- what was burnt that evening? 14 A: What was burnt that evening; I think 15 it was sage, probably a mix, there was sage, you can use 16 sage, cedar, or tobacco. I think it was probably -- well 17 for smudging mostly it's sage and sweetgrass. 18 Q: Okay. And where -- where -- what 19 receptacle is the sage burnt in? 20 A: Receptacle. Usually a cell, a shell, 21 I mean, like a big shell, sea shell or something. 22 Q: And did you engage in any gestures or 23 traditional practices, ceremonies, yourself, in relation 24 to entering this land? 25 A: Yeah. I was part of that circle.
331 Q: All right. Now where did you go 2 after you left the Park at 3:00 or four o'clock in the 3 morning? 4 A: Back to the built-up area to my -- my 5 place, residence. 6 Q: Sorry? 7 A: Back to my residence in the built-up 8 area. 9 Q: And what route did you take to return 10 to the built-up area at Camp Ipperwash? 11 A: I went back down again, along Army 12 Camp Road, parallel to Army Camp Road, I guess. 13 Q: So you basically -- you basically 14 retraced the route that you took initially? 15 A: Yeah. 16 Q: To your knowledge, did anyone from 17 your group identify themselves that night as either a 18 leader or spokesperson to the OPP? 19 A: No. Nobody wanted to be seen as a 20 leader of the occupation, -- 21 Q: Why -- 22 A: -- for fear of being targeted for 23 arrest or other -- other things. 24 Q: Who did you look to as -- as the -- 25 the leadership of the group?
341 A: Who did I look to as a leader? 2 Nobody, I guess, just everybody was -- everybody was a 3 leader. 4 Q: Did you look to anyone that evening 5 for particular guidance or advice in relation to the -- 6 the planned actions of going into the Park? 7 A: No. 8 Q: Did you witness any other incidents 9 of significance that evening? 10 A: No. That's pretty much it I think. 11 Q: All right. Now you said that after 12 an incident with Judas, I believe his name is Roderick 13 George? 14 A: Yeah. 15 Q: After an incident with Judas 16 involving smashing a car -- police cruiser window, the 17 police exited. Did you notice any police presence around 18 the Park after that event that evening? 19 A: Yes. They set up roadblocks. There 20 was a, let's see -- the ones that we could see there was 21 a roadblock right around here, just down from Matheson 22 Drive on Army Camp Road. 23 Q: All right. Just -- just south of it? 24 A: Yeah. And then there was another 25 roadblock at the gateway down here at the built-up area.
351 Q: So that's Highway 21 and Army Camp 2 Road, essentially? 3 A: Yeah. 4 Q: All right. 5 A: Those were -- those were the only 6 roadblocks that I could see. 7 Q: All right. And just describe the 8 roadblocks. What you mean by roadblock? 9 A: Roadblock there was a couple of 10 police cruisers Parked across the roadway, uniformed 11 officers were standing around. 12 Q: All right. So literally no vehicles 13 could pass along the road? 14 A: Yeah. Well, if they ever did -- 15 well, if they did they were stopped and asked -- asked 16 questions by the police and searched or whatever if they 17 wanted. 18 Q: Okay. Now just -- just be careful. 19 Were -- were you -- did you go through a roadblock that 20 night? 21 A: No. 22 Q: All right. Did you have any 23 encounter -- any other encounters with the police that 24 evening? 25 A: No.
361 Q: And that's because you took the 2 internal route from the Park back to the barracks? 3 A: Yeah. 4 Q: Did you return to the Park the next 5 day, Tuesday, September the 5th? 6 A: Yes, I did. 7 Q: And approximately what time of day 8 did you return? 9 A: The first thing in the morning. I'd 10 say maybe about 7:00, 6:00 or 7:00. 11 Q: And what route did you use to gain 12 entry into the Park? 13 A: Which way did I go this time? I 14 think I come in right by the maintenance shed this time. 15 When -- I pretty much I took the same way except I come 16 in right here. 17 Q: All right. So again you took the 18 road from the built-up area parallel to Army Camp Road 19 then you veered off towards the Park on the road passing 20 the maintenance shed? 21 A: Yeah. 22 Q: All right. And did you -- on route 23 did you -- did you observe any police presence? 24 A: Yeah. They still had their 25 roadblocks in the same spots.
371 Q: Did the degree of police presence 2 cause you any concern? 3 A: I don't know. It just seemed about 4 the same as the night before. 5 Q: And did you have any encounters with 6 the police en route to the Park? 7 A: No, I never. 8 Q: Describe the scene when you entered 9 the Park then at approximately 6:00 or 7:00 in the 10 morning on Tuesday, September the 5th. 11 A: The scene. I'm not sure. Let's see. 12 Early in the morning. Well, the first people I seen was 13 Dudley and J.T. They were sitting around at that store. 14 Q: At the store in the Park? 15 A: Yeah. 16 Q: Okay. All right. And what were they 17 doing? 18 A: Just sitting around, drinking coffee, 19 stirring up the fire or whatever. 20 Q: And, I should have asked you this 21 before. Were there any bonfires lit the night before? 22 A: Yes. 23 Q: All right. And what approximate 24 locations were those bonfires lit? 25 A: Let's see, there was -- yeah, there
381 was one (1) right at that store. There's like -- the 2 store was right there, there was kind of a big wood yard 3 behind there where they use to sell firewood, camp 4 firewood. And started a fire right around there. 5 Let's see, I think there might have been 6 another fire at the end of Matheson Drive there. 7 Q: Okay. Matheson Drive and Army Camp 8 Road approximately. Inside the Park? 9 A: Like -- outside the Park in between 10 the -- the former military base and the Park. 11 Q: Okay. All right. And that morning 12 when you entered, you said there was still a fire going 13 at -- the bonfire going at the -- the store area? 14 A: Yeah. 15 Q: And were there any other fires going 16 that you knew? 17 A: No. 18 Q: And did you notice any change in the 19 police -- degree of police presence over the course of 20 that day? 21 A: In the course of that day? Yeah, it 22 seemed like -- well, they were trying to establish 23 contact with -- between our group and them, I guess. 24 Q: And did you observe any attempts by 25 the police to establish contact?
391 A: Yeah. 2 Q: And can you describe how many attempts 3 you saw? 4 A: I don't know, a couple, anyway. 5 Q: All right. And where were these 6 attempts made in the Park? 7 A: Right at the gateway by the store. 8 There's a parking lot and the police and some Park 9 officials were coming up there. 10 Q: Is this -- 11 A: Just coming up to, like -- there's, 12 like, a little turnstile thing there. 13 Q: Yeah, this is essentially the -- the 14 sandy parking lot and access road area? 15 A: Yeah. 16 Q: And close -- very close to the edge of 17 the Park. 18 A: Yeah. 19 Q: Okay. And can you tell me what you 20 overheard, if anything, as being said by the police or 21 Park officials? 22 A: Nothing. I wasn't really close enough 23 to -- well, I wasn't close enough. I don't think anybody 24 went close enough to talk to them. 25 Q: And do you have any belief as to why
401 no one from the Park was -- was approaching the police to 2 talk to them? 3 A: Nobody wanted to be deemed the leader, 4 I guess, in fear of prosecution or whatever. 5 Q: Did you recognize the identity of any 6 of the police officers who made attempts to have 7 discussions with your people? 8 A: One (1) was Mark Wright. I think -- 9 I'm not sure what his position was, but I think he was, 10 like, one (1) of the head cops for the North Lambton OPP. 11 Q: And prior to this event, did you know 12 who Mark Wright was? 13 A: Yeah. 14 Q: All right. And did you recognize the 15 identity of any of the other police officers? 16 A: Let's see, I think I seen Larry Vince 17 George. He's another police constable. 18 Q: Okay. And in terms of Park officials, 19 did you recognize any of the Park officials who came to 20 the Park that day? 21 A: Les Kobiashi (phonetic), I guess. 22 Q: All right. And do you know who he is, 23 particularly? 24 A: Yeah, he was -- I guess he was a head 25 guy for the Parks around there.
411 Q: Did you know him before this event? 2 A: Let's see -- I think I might have, 3 yeah. 4 Q: I'm just wondering how it is you would 5 have known his name. 6 A: Let's see -- I'm just trying to think 7 of that right now. I'm not sure -- just -- he was one 8 (1) of the head guys for the -- whatever -- Parks or 9 whatever. 10 Q: All right. Now, I take it that -- 11 from your earlier answer -- that there was still an 12 operating telephone at the Park on Tuesday, September the 13 5th? 14 A: Yeah. 15 Q: All right. And to your knowledge, did 16 the police try to contact your group via that telephone? 17 A: Through that telephone? I'm not sure. 18 I think maybe they might have. I'm not sure. I don't 19 think -- 20 Q: All right. 21 A: Nobody said anything. I never heard 22 anything. 23 Q: Okay. Were members of your group 24 continuing to take steps to secure the Park? 25
421 (BRIEF PAUSE) 2 3 A: No, I don't think so. That was pretty 4 much it. We were just -- 5 Q: Were the -- 6 A: -- carrying on. 7 Q: Were the observation posts continuing 8 to be manned? 9 A: Yeah. 10 Q: All right. And to your knowledge, was 11 there any bringing in of -- of weapons or guns into the 12 Park that day? 13 A: No guns. 14 Q: All right. Any -- any -- any manmade 15 objects that -- that could be used as weapons? 16 A: Maybe sticks or bats or clubs or 17 whatever, maybe. I don't know. 18 Q: Well, you told us there were baseball 19 bats the night -- 20 A: Yeah. 21 Q: -- before. Did there continue to be 22 baseball bats that day? 23 A: Yeah. Everybody was kind of -- carry 24 stuff around in their car. 25 Q: And when you speak of "clubs" what do
431 you mean? 2 A: I don't know. Whatever -- sticks, 3 whatever you could be used for a club, I guess. 4 Q: All right. And when you say "sticks" 5 are you including tree branches? 6 A: Yeah. 7 Q: Are you including man made wooden 8 objects? 9 A: Mmm hmm. 10 Q: Yes? I'm sorry, you have to say yes 11 for the record. 12 A: Yes. 13 Q: Okay. 14 A: Pipes or whatever. 15 Q: Pipes? 16 A: Yeah. 17 Q: Steel pipes or? 18 A: Yeah. Pipes, or copper pipes or 19 whatever. 20 Q: How about rocks? 21 A: Whatever anybody could get a hold on. 22 Q: What about rocks? 23 A: Rocks? There was like a -- I don't 24 know, there was like a patio at that store and people 25 start peeling up -- there was like a bunch of little
441 blocks, bricks that were made the patio. People were 2 digging those out and stacking them up around. 3 Q: Okay. And this was occurring on 4 Tuesday, September the 5th? 5 A: Yeah. 6 Q: All right. And what was the -- 7 A: Let's see, maybe -- maybe not. It 8 might have been on the 6th. 9 Q: Either the 5th or the 6th? 10 A: Yeah. 11 Q: But one (1) of those days? 12 A: Yeah. 13 Q: What was the purpose of -- of 14 gathering such objects? 15 16 (BRIEF PAUSE) 17 18 A: Just -- I don't know. Self-defence 19 if we needed it. 20 Q: Okay. On Tuesday, September the 5th 21 did your group confine all of its activities to the Park 22 boundaries? I know you've -- you've told me there was at 23 least one (1) bonfire that was outside the Park boundary 24 at Matheson Drive. 25 Were there any other activities that day,
451 that were outside of the -- the Park boundaries? 2 A: Yeah, I think later on we started a 3 bonfire in a parking lot. 4 Q: And this is the sandy parking lot 5 road access area at Army Camp Road and East Parkway 6 Drive? 7 A: Yeah. 8 Q: Leading down to the beach? 9 A: Yeah. 10 Q: Okay. And -- and what exactly was 11 going on there? 12 A: I don't know. We just started a fire 13 there and there was some picnic tables out. 14 Q: Mmm hmm. And how many picnic tables 15 did you move out into that area? 16 A: Jeez, I'm not sure. Maybe half a 17 dozen. 18 Q: And what was the purpose of -- of -- 19 of taking your activities outside of the Park area to 20 that sandy road area? 21 A: What was the purpose? I don't know. 22 23 (BRIEF PAUSE) 24 25 A: Let's see. I don't know. Just
461 pretty much close it off so that the -- like public, if - 2 - couldn't go up there if the -- if there was any, let's 3 say, red necks or whatever wanting to start trouble. 4 They'd probably pull up in that area and 5 start yelling obscenities or whatever. So we'd just 6 close it off so that that kind of stuff wouldn't happen. 7 Q: So it was another measure to secure 8 the Park? 9 A: Yeah. 10 Q: Now I understand that there are some 11 cottages and houses just across that sandy roadway area 12 and -- and bordering East Parkway Drive. 13 A: Yeah. 14 Q: And to your knowledge, were people 15 actually present in those properties when you took over 16 the Park? 17 A: Yes, there was. 18 Q: And was there any type of altercation 19 or exchanges, as between any members from your group and 20 the occupants of those houses, to your knowledge on 21 Tuesday? 22 A: To my knowledge, no. 23 Q: Did you witness any police response 24 to the fact that you had moved the picnic tables outside 25 of the Park boundary and built a bonfire in that same
471 area? 2 A: Yeah. 3 Q: And can you tell me what it is that 4 you saw? 5 A: Just -- they kept on driving by and 6 once they seen us out there they kind of stopped, hit the 7 brakes and looked over and -- and then they must have 8 went back and made a report that we were moving out. 9 Q: And -- let me just back up for a 10 second, you said the police cruisers were driving by the 11 Park that day? 12 A: Yeah. 13 Q: And do you know how frequently they 14 would drive by that Park? 15 A: How frequently? I'm not sure. It 16 would have been like every hour, anyway. 17 Q: All right. And why is it that you 18 believe that after they saw you moving the picnic tables 19 out that they likely made a report? 20 A: Because it seemed like the -- like the 21 police got, kind of, more activity going. 22 Q: Can you explain that, please? 23 A: Just, they were starting to drive back 24 and forth a bit more. 25 Q: More frequently?
481 A: Yeah. 2 Q: All right. And did any other -- did 3 anything -- did you witness any other police response to 4 the -- the fact that you moved picnic tables out into 5 that area? 6 A: Yeah. Later on there was a few police 7 cruisers that approached an some police -- police 8 officers got out. There was one (1) police cruiser that 9 pulled right up and started ramming these picnic tables. 10 Q: Were you there when the police cruiser 11 started ramming the picnic tables? 12 A: Yeah. 13 Q: Okay. And who else was there from 14 your group at that time? 15 A: Who else was there? Quite a few 16 people. 17 Q: Can you recall any specifically? 18 A: Any specifically? No. 19 Q: All right. 20 A: Just -- 21 Q: All right. And just describe for me 22 very carefully, please, in as much detail as you can, 23 from the moment that the car approached the picnic table 24 to the moment of impact and then what happened after 25 that?
491 A: The police wanted us to go back into 2 the Park and told us to leave -- leave the parking lot 3 area or whatever and we said, why, you know, it's not 4 doing anything -- we're not doing anything. It's a 5 public -- public roadway. We're just sitting around. 6 Q: Did you receive any reply to that? 7 A: Not really, just the police jumped in 8 their cruiser and started ramming the picnic table, 9 pushing it. 10 Q: All right. And did you recognize the 11 identity of the police officer who spoke to you? 12 A: The identity of the police officer? 13 He looked an awful lot like Kenneth Deane. 14 Q: Did you know who Ken Deane was at that 15 time? 16 A: No, not at that time. 17 Q: All right. So, you didn't recognize - 18 - or this wasn't someone who was familiar to you. 19 A: No, he was just -- 20 Q: All right. And was it the same police 21 officer who entered the police cruiser that then made 22 contact with your picnic table? 23 A: I'm not sure if it was him or not. I 24 think there was another -- like, he was still standing 25 there talking and then another car kind of come up.
501 Q: All right. And approximately -- let 2 me ask you this -- what position were the people in your 3 group relative to the picnic table at the time of impact? 4 A: What position were they? There were 5 some people sitting on it and people were standing around 6 the fire and -- 7 Q: All right. And what happened to the 8 people who were sitting on the picnic table once there 9 was physical contact made with the car? 10 A: What happened to them? Just kind of 11 bumped -- got bumped around -- moved around. 12 Q: All right. What was your response to 13 this? 14 A: Sort of, like what the -- what the -- 15 what's going on, you know? 16 Q: All right. Did anybody take any 17 physical action with respect to the picnic tables as a 18 result of the -- the hitting of the picnic table by the 19 cruiser? 20 A: Hmm hmm. 21 Q: What was that? 22 A: We kind of -- everybody went and 23 helped whoever was on the picnic table because they were 24 kind of -- got bumped up and hurt a little bit and went 25 over there to help them and people started pushing back
511 with the picnic table and pushing back towards the police 2 car and ended up throwing a picnic table right on top of 3 the police car. 4 Q: All right. And on what part of the 5 police car did the picnic table end up? 6 A: Right on the hood. 7 Q: And did you -- who -- who were the 8 individuals who actually caused the picnic table to end 9 up on the hood? 10 A: I was one (1) of them. I don't know 11 who else was -- everybody was kind of all running around. 12 Q: All right. And what happened after 13 that event? 14 A: Let's see, what happened after that? 15 Q: We have a police cruiser with a picnic 16 table on its hood, so what happened next? 17 A: Kind of -- a little bit foggy, I 18 remember, yeah, I can't remember if we went into the Park 19 and had further communication with the police or not, or 20 if -- there was rocks started flying anyways. 21 Q: Okay. I know this is a long time 22 ago, so I just want -- 23 A: And -- 24 Q: -- the best of your recollection, 25 but, where were the rocks emanating from?
521 A: From our side -- 2 Q: Okay. 3 A: -- from behind the fence, fence area. 4 Q: Behind the -- so you're back in the 5 Park now? 6 A: Yeah. 7 Q: And rocks were being thrown where? 8 A: Towards the police cars. 9 Q: And did any hit the police cars as 10 you -- as you saw it? 11 A: Hmm hmm. Let me think here. I think 12 we might of had more discussion with the police, I'm not 13 sure. I'm trying to think. But, yeah, they were hitting 14 the police cars. 15 Q: All right. And what was the response 16 of the police officers to this activity? 17 A: Let's see. They kind of pulled back 18 a little bit for a little while. 19 Q: Where did they pull back to? 20 A: Just back up on the roadway a bit 21 more, back down this way -- 22 Q: So on East Parkway Drive? 23 A: -- East Parkway, yeah. 24 Q: Could you still seem them, though? 25 A: Yeah.
531 Q: And were they all in their cruisers? 2 A: Some of them were out standing 3 around. 4 Q: Okay. And then what happened? 5 A: I'm not sure, I think we went back 6 out into the parking lot again, yeah. 7 Q: With -- in -- in full sight of the, 8 or view of the police that were standing there? 9 A: Hmm hmm. Yeah. 10 Q: All right. And what did you do with 11 the picnic tables, if anything? 12 A: Nothing. We just kind of left them 13 around. 14 Q: So they continued to be out in the 15 sandy parking lot area? 16 A: Yeah. 17 Q: How about the bonfire, did it 18 continue to be lit? 19 A: Yeah, it was still going. 20 Q: Did you -- did you inspect the 21 picnic tables after -- the picnic table, after it was hit 22 by the police car? 23 A: No. 24 Q: To you knowledge, did anyone suffer 25 any personal injury as a result of this encounter?
541 A: Maybe just some bruising, a scratch 2 or something. 3 Q: How about you? 4 A: Nothing. 5 Q: All right. And did you observe any 6 property damage occur during the course of this incident? 7 A: No, none to us. 8 Q: Okay. What about the police cars? 9 A: I imagine some of them had some dents 10 and broken windows. 11 Q: Broken windows? 12 A: Yeah. 13 Q: And, to your knowledge, were any 14 police officers hit by any of the rocks that were thrown? 15 A: I think maybe some of them were. 16 Q: When you say, maybe -- 17 A: Maybe, I'm not sure for sure. 18 Q: Did you see anybody hit? 19 A: No, it was... 20 Q: Were there any attempts made to 21 arrest any of the members of your group at this time? 22 A: Let me think. I think there was some 23 more police offices showed up, and then they kind of got 24 into formation a bit and started moving towards us, so we 25 figured, well, we thought maybe we might get arrested or
551 something, so everybody kind of jumped into the Park. 2 Q: All right. Now, can you tell me 3 approximately what time of day this picnic table incident 4 took place on Tuesday? 5 A: It was right, getting dark time, 6 just, I'd say probably -- probably about 9:00 maybe, just 7 at dusk. 8 Q: 9:00 p.m.? 9 A: Yeah. 10 Q: Was it still -- what were the 11 lighting conditions at that time? 12 A: The sun was going down and the big 13 flourescent lights were starting to come on. 14 Q: What flourescent lights? 15 A: What flourescent lights? There was a 16 flourescent light, I think at the store, and then there 17 was another one over at the -- in the parking lot -- 18 Q: Now, the -- 19 A: -- at the entrance to the parking 20 lot, maybe down the road a little ways. 21 Q: All right. I'm just not familiar 22 with this light. Where -- can you be a little bit more 23 specific? Was it on a pole or? 24 A: Yeah. A big hydro pole. 25 Q: A hydro pole and it was a fluorescent
561 light? 2 A: Well it was an orange coloured light. 3 Q: Okay. And was it inside or outside 4 of the Park? Which side of the fence? 5 A: Outside. Outside the Park. 6 Q: All right. And was it on the Army 7 Camp Road side of the Park? 8 A: Yeah. 9 Q: Okay. And you said that there was 10 shortly thereafter, a -- a formation of police officers 11 that came down the road? 12 A: Hmm hmm. 13 Q: Yes. And approximately how long 14 after the picnic table incident? 15 A: Not too long. Maybe fifteen (15), 16 twenty (20) minutes. 17 Q: And from what direction were these 18 police officers coming? 19 A: From where they backed up to, where 20 the police cars were. 21 Q: All right. And which -- which road? 22 A: East Parkway Drive. 23 Q: Okay. Approximately how many police 24 officers did you see? 25 A: I'd say maybe fifteen (15), twenty
571 (20), somewhere around there. 2 Q: And could you see what -- what they 3 were wearing? 4 A: They were, I think -- yeah, they were 5 wearing what all the rest of them were wearing. It was 6 like a grey coverall thing, ball caps. 7 Q: All right. Were they wearing -- did 8 they have any objects in their hands that you could see? 9 A: Some of them yeah. Some of them had 10 those telescopic clubs. 11 Q: Okay. Were they wearing anything on 12 -- over their heads? 13 A: Over their heads? 14 Q: Or on them? 15 A: Just ball caps or whatever. 16 Q: Ball caps. 17 A: Yeah. 18 Q: Okay. Did you recognize the identity 19 of these police officers? 20 A: No. 21 Q: All right. And they started walking 22 along East Parkway Drive towards the Park? 23 A: Yeah. 24 Q: And you -- you looked at them and 25 decided to go back into the fence -- into the Park?
581 A: Hmm hmm. 2 Q: And how close did they approach you? 3 A: Well they kind of walked along and 4 they got into formation kind of parallel with the fence 5 in the par -- were inside -- well, at the parking lot, 6 they got in formation along the fence. 7 Q: All right. So they were lined up 8 along the fence on the outside of the Park? 9 A: Hmm hmm. 10 Q: Yes? 11 A: Yeah. 12 Q: And was there any exchanges as 13 between any of the police officers and any of the people 14 from your group at that time? 15 A: Yeah. 16 Q: And can you tell me to the best of 17 your recollection what that exchange was? 18 A: Well it seemed like they wanted to 19 pick a fight or whatever. 20 Q: Why do you say that? 21 A: Well, there was one big police 22 officer that was walking around. He was a pretty big guy 23 and he was kind of playing with his big baton or ASP 24 baton or whatever, telescopic baton and he was like, hey 25 where's Judas at? Send him down here.
591 Q: Right. And did -- did anyone from 2 your group make any response? 3 A: Not really. We were just kind of 4 laughing at him, yeah, whatever. 5 Q: And how long did this standoff, if I 6 can call it that, last? 7 A: For a while. One cop that was doing 8 all the talking was -- he was doing a lot of talking and 9 he's kind of asking us which one of us guys wanted to be 10 the first. Who was going to be the first one out, get 11 dragged out, who was going to be the first one, we're 12 going to take care of you guys. Who's going to be the 13 first one and then he looks at Dudley and Dudley, you're 14 going to be the first one. 15 And then it was like whoa. And we were 16 right face to face with these police officers and there's 17 a fence way, so Dudley was right there and I kind of went 18 down behind him -- down behind him and grabbed some sand 19 and I threw it right in that police officer's face. And 20 then right away there was a police officer behind him, 21 pulls up this big -- big can of mace and starts spraying 22 it at all the people and trying to hit whoever, anybody. 23 Everybody like on our side of the fence 24 kind of split and we just started picking up rocks and 25 everything and started throwing it at the police
601 officers. 2 Q: All right. 3 A: And that's when they started leaving. 4 Q: Okay. And let -- let's just back up 5 for a moment. Can you -- where were you standing in 6 relation to Dudley George when you overheard this 7 exchange? 8 A: I was standing right behind -- or 9 right beside Dudley, kind of right behind him. 10 Q: All right. So you were a foot away or 11 thereabouts? 12 A: If that. 13 Q: And can you describe for me, as best 14 you can, what this police officer looked like? 15 A: He was kind of a -- shorter -- not 16 really -- really short -- but, like, he was shorter than 17 I was. He had a moustache. Let's see, he had light 18 coloured hair, he had a ball cap on. It looked like he 19 was kind of balding the way he had his ball cap. 20 Q: Like a receding hairline? 21 A: Yeah. His hairline was way back. 22 Q: Hmm hmm. What was the nature of his 23 build? 24 A: Kind of a stocky kind of guy. He had 25 sergeant -- sergeant bars on.
611 Q: Can you just describe what the 2 sergeant bars looked like? 3 A: Just three (3) -- three (3) -- three 4 (3) stripes and then there was, like, another one 5 underneath. 6 Q: Okay. Was he wearing any kind of 7 glassware? 8 A: Pardon? 9 Q: Was he wearing glasses? 10 A: Glasses? No. 11 Q: All right. Did he have a moustache? 12 A: Yeah. 13 Q: What kind of a moustache? 14 A: Just -- I think it was, like, a 15 regular moustache. I'm not sure. I don't think it was a 16 goatee. 17 Q: All right. And did you notice what 18 the colour of his eyes were? 19 A: They were a lighter colour. 20 Q: Did he have any other distinguishing 21 features that you saw? 22 A: Any distinguishing -- not really. 23 Q: And can you describe his voice. Was 24 it -- in terms of tone, volume. 25 A: Tone -- volume. I don't know, just
621 kind of like a taunting voice. 2 Q: Okay. And you said that a police 3 officer, in response to the sand being thrown, sprayed 4 something from a can. You think it was mace. 5 A: Yeah. 6 Q: All right. Did you -- did you get any 7 of the mace on you? 8 A: No, not myself. 9 Q: Did you see whether it hit any of the 10 other occupants? 11 A: I think it got Dave George on the arm 12 and that was -- that was pretty much it. 13 Q: All right. 14 A: Kind of seen a big -- like, a big 15 cloud and then it kind of, like, went back towards the 16 police officers. I don't know if it got them or not, but 17 they seemed to take off quite a bit -- pretty fast after 18 that, anyway. 19 Q: All right. 20 A: Because we started throwing rocks and 21 everything right at them. 22 Q: And, to your knowledge, did any of the 23 rocks hit any of the police officers? 24 A: Yeah. 25 Q: And did they take any steps to
631 retaliate? 2 A: No. They left. 3 Q: All right. And when you say, They 4 left, did you see where they went? 5 A: Back to their police cars and jumped 6 in and took off. They were going all different 7 directions. 8 Q: All right. 9 A: We were still throwing rocks at them 10 and hitting their cars and stuff. 11 Q: All right. Now, you indicated that 12 you were in this group and that Dudley George was in this 13 group and David George. 14 A: Hmm hmm. 15 Q: Can you recall what other individuals 16 were in this group? 17 A: My brother was standing right on the 18 other side of Dudley. 19 Q: Kevin? 20 A: Yeah. And, that's pretty much all I 21 can remember from right there. 22 Q: All right. Did you witness any other 23 verbal exchanges between the Ontario Provincial Police 24 and members of your group on that day? And we're still 25 on Tuesday, September the 5th.
641 A: On that day? No. 2 Q: All right. And you indicated that 3 there were attempts made by members of the OPP to 4 communicate with members of your group during the course 5 of that day but that no one would go and talk to them. 6 A: Yeah. 7 Q: And the reason was because nobody 8 wanted to be targeted? 9 A: Yeah. 10 Q: Now why did you think that you would 11 targeted if you spoke to the group -- or to the police, 12 and in what respect do you mean "targeted"? 13 A: I don't know. Just the kind of stuff 14 that we've done or that's gone on in the past with 15 occupations is that -- like the leaders of the 16 occupations or whatever were targeted by -- let's see, 17 the FBI or the RCMP and they were all pretty much, like, 18 falsified charges and whatnot and they all went to jail 19 and some even probably a lot of them got killed. 20 Q: And what specific interactions are 21 you talking? You said, A lot of occupations that we were 22 involved with. Were these any -- 23 A: Well -- 24 Q: -- occupations you were involved in? 25 A: No, not like myself personally, but,
651 like, there were some people there that were involved in 2 other occupations in other places. 3 Q: Can you just give me some idea as to 4 what occupations informed this belief? 5 A: The Wounded Knee occupation in 1973. 6 Q: And that was where? 7 A: In south Dakota. 8 Q: Okay. Any other occupations that 9 come to mind? 10 A: No, not really. 11 Q: All right. Now during the course of 12 the day were there any other incidents in which 13 individuals from the group -- your group, threw rocks or 14 any other objects at police officers aside from what 15 you've already told me? 16 A: Throughout the day or anything? 17 Q: Yes. 18 A: I don't know. Like maybe just 19 flashing -- flashing sunlight at them with the mirrors or 20 whatever. 21 Q: All right. Who was doing that? 22 A: Anybody, everybody. 23 Q: Do you know what the purpose of that 24 was? 25 A: I don't know, just to irritate them,
661 I guess. I don't know. 2 Q: All right. Were there any other such 3 activities directed or actions directed towards the 4 police officers that were intended to intimidate or 5 irritate them? 6 A: No. 7 Q: All right. Were there -- 8 A: I think we made like a mock police 9 chase. 10 Q: What do you mean? 11 A: A mock police chase? Well, we had a 12 car that was painted up like a OPP car and it was -- 13 words "OPP Who?" were painted on it. And we went up by 14 the one (1) road block and somebody put a siren on it, 15 Oh, the OPP -- the "OPP Who" car. 16 And we went by that one (1) road block and 17 the guy behind me turns the siren on so I took off like 18 we were having a police chase and went flying by that one 19 (1) -- couple of road blocks. And then we went down to 20 the Park and did like a little doughnut around here and 21 had like our little mock police chase. 22 Q: All right. And just -- just so I'm 23 clear, which road did this take place on? 24 A: Which road did this take place on? 25 Right down Army Camp Road into the Park and then around
671 here and that was it. 2 Q: So right on Army Camp Road? 3 A: Not right on Army Camp Road. Right 4 along beside, on the inside. 5 Q: All right. The internal road -- 6 A: Yeah. 7 Q: -- the road internal to the Camp 8 Ipperwash -- 9 A: Yeah. 10 Q: Okay. All right. Did you get any 11 reaction from the police as a result? 12 A: Some of the police officers looked 13 mad and some of them were laughing and it was ... 14 Q: And who's car was it that was painted 15 with the words "OPP Who?" car? 16 A: I think it was Robert Isaac's car. 17 Q: And you drove it, did you? 18 A: No, I was driving my car. 19 Q: Okay. You were the one being chased? 20 A: Yeah. 21 Q: Okay. All right. Now, aside from 22 what you've -- you've already described, did the police 23 take any actions or direct any actions towards member of 24 -- members of your groups which you considered to be 25 either intimidating or hostile that day?
681 A: That day? Not really, no. 2 Q: Can you describe what the -- excuse 3 me, Commissioner. I just noticed it's 11:10. Perhaps we 4 should take a brief break. I know we have a shortened 5 morning for this witness. 6 COMMISSIONER SIDNEY LINDEN: Quite a 7 shortened morning session so let's take a break now, ten 8 (10) or fifteen (15) minutes. What time are we going to 9 try and break -- break now. 10 THE REGISTRAR: This Inquiry will recess 11 for fifteen (15) minutes. 12 13 --- Upon recessing at 11:13 a.m. 14 --- Upon resuming at 11:30 a.m. 15 16 THE REGISTRAR: This Inquiry is now 17 resumed. 18 19 CONTINUED BY MS. SUSAN VELLA: 20 Q: Mr. Simon, we're still discussing the 21 activities of Tuesday, September the 5th. 22 A: Okay. 23 Q: That's the day before Dudley George 24 was shot. Now, I'm wondering if you could just tell me, 25 how long did you spend in the Park that day?
691 A: That day? 2 Q: You got there, you said, early in the 3 morning. 4 A: Hmm hmm. 5 Q: Did you stay there throughout the day? 6 A: Pretty much. I was going back and 7 forth to the built-up area -- 8 Q: Right. 9 A: -- all day. 10 Q: And when did you -- did you leave the 11 Park at all that night? 12 A: That night? Yeah, probably about 4:00 13 or something like that at night. 14 Q: Again, 4:00 in the morning? 15 A: Yeah. 16 Q: Okay. Can you describe for us what 17 the general atmosphere of the -- the group was inside the 18 Park that day? 19 A: That day, on the Tuesday? It was -- 20 everybody was excited and kind of happy. Yeah, I guess 21 we were pretty happy. We didn't really think nothing was 22 going to happen because it was closed down for the year 23 and there wasn't no possibility of altercation between 24 campers or anything like that. 25 Q: Hmm hmm. What about the fact that you
701 had had now, some altercations with the police? Did that 2 alter the -- the attitudes or feelings of the group at 3 all? 4 A: Yeah. There was -- well, it was 5 mostly that evening that everything happened and 6 everybody was kind of -- kind of getting, I don't know -- 7 worried, I guess, now. 8 Q: How were you feeling? 9 A: I was kind of, like, angry and kind of 10 shocked that they would just, like, come right up and 11 threaten -- threaten us and Dudley like that. 12 Q: Okay. During the course of the day, 13 can -- can you tell me what the composition of the -- the 14 group was in the Park, in terms of gender and age and -- 15 well, gender and age? 16 A: It was all mixed. It was -- no -- 17 not, like, one-sided or anything. 18 Q: Did there continue to be children in 19 the Park? 20 A: Yeah. 21 Q: Women? 22 A: To -- yeah. 23 Q: And what kinds of activities were they 24 engaged in during the course of the day that you saw? 25 A: I don't know. The kids were just
711 playing around and the women were -- I don't know -- 2 making lunches and stuff like that, I guess. I don't 3 know, just trying to be helpful any way they could. 4 Q: And were there any elderly people in 5 the Park that day? 6 A: Hmm hmm. 7 Q: And were there any elders at the Park? 8 A: Hmm hmm. 9 Q: Yes? You have to say yes or no for 10 the record. 11 A: Yes, yes, yes. 12 Q: Thank you. 13 A: Yes. 14 Q: Do you recall which elders attended at 15 some point during the day at the Park? 16 A: Do I recall which ones? 17 Q: Yes. 18 A: Let's see, there'd be my grandmother 19 and Abe. Let's see, we had -- I don't know, there were 20 just all different kinds of people, I guess. 21 Q: Were there any people at the Park from 22 Kettle Point? 23 A: Yeah, I do believe so. There was all 24 kinds of people stopping in. 25 Q: And when people stopped in, would they
721 bring things into the Park that you saw? 2 A: Yeah. 3 Q: What kind of things? 4 A: I don't know, just stuff that we could 5 use like camping supplies or stuff like that. 6 Q: Okay. Do you recall whether there 7 were any traditional ceremonies which were performed on 8 Tuesday? 9 A: Let's see. Not really. Maybe a 10 circle at night, like the night before. 11 Q: Now you indicated just before the 12 break that there had been a change in the police presence 13 during the course of the day and into the evening as 14 compared from the night before. 15 A: Hmm hmm. 16 Q: Was that police buildup that you 17 witnessed, was that a gradual buildup or a sudden 18 buildup? Can you give us a sense of that? 19 A: Well, it seemed like it was kind of a 20 gradual buildup during the day and then when all that 21 stuff happened that night, it seemed like it was getting 22 more and more. It was -- things were picking up. 23 Q: All right. And can you just give us 24 a better sense of what you mean by things were picking 25 up? What did you see that led you to that belief?
731 A: Just -- just seen more police 2 officers and more -- more patrols I guess. 3 Q: After the -- the incident of the sand 4 throwing that you -- you relayed, did members from your 5 group go back outside of the Park boundary that night? 6 A: Yeah. 7 Q: And do you recall how -- when that 8 happened? How late it was? 9 A: How late it was? It was like right 10 when the police left, we were kind of following them down 11 the road a little bit. Like not right down the road but 12 followed them out to the roadway. 13 Q: Okay. And where did -- where did, 14 all right. And after you went out into the roadway where 15 did you go? 16 A: Everybody just kind of milled around 17 at -- in that parking lot. 18 Q: And were the picnic tables still 19 there? 20 A: Yeah. 21 Q: Was a bonfire still going? 22 A: No, I don't think so. I think the 23 police officers put it out. 24 Q: Over the course of that day, did you 25 observe any helicopter activity?
741 A: On that day? Tuesday? 2 Q: Tuesday? 3 A: No, I don't think so. 4 Q: Did you observe any type of 5 surveillance activity going on? I know you're not 6 suppose to see any surveillance but did you see anything 7 that was indicative of surveillance? 8 A: Let's see. I think when the police 9 were up at that fence, there was a news crews up there 10 too. And they had a camera on, like a big pole and they 11 were hoisting it way up in the air so that they could see 12 farther back in. 13 Q: And who was that? Who was doing 14 that? 15 A: I figured it was the police but it 16 could have been a news crew or something too. 17 Q: All right. And where was the -- the 18 pole and the camera located? 19 A: It was in the parking lot. 20 Q: Which parking lot? 21 A: The parking lot on the outside of the 22 fence. 23 Q: Is that where you had your picnic 24 tables? 25 A: Yeah. Later on that day.
751 Q: Okay. All right. So what time of 2 day did you see this camera? 3 A: During the afternoon. Morning time, 4 afternoon. 5 Q: All right. And were there any -- any 6 members of your group out in that parking lot area when 7 this camera was being hoisted? 8 A: No. 9 Q: Did you notice any unusual boating 10 activity that day? 11 A: Yeah. I noticed one (1) buoy boat 12 that was anchored off the point. It seemed to be sitting 13 in the same area. It would be right off this area, right 14 around here somewhere. 15 Q: All right. So you're pointing to the 16 map and it's right where the word "skirmish" is written. 17 A: Yeah. 18 Q: Somewhere out there in Lake Huron? 19 A: Yeah. 20 Q: And just on the -- bordering the 21 Park? 22 A: Yeah. 23 Q: And why -- why do you say that was 24 unusual? 25 A: Well, we just noticed it there and
761 then later on the next day, the wind had picked up and it 2 was rough, getting really wavy and that boat was still 3 sitting in the same spot. 4 Q: Could -- was the boat close enough 5 that you could see any identifying markers on it? 6 A: Not really. You'd have to look at it 7 with binoculars. 8 Q: All right. 9 A: To read the numbers or whatever. 10 Q: Right. Was it -- can you just 11 describe generally what type of boat it was? 12 A: Just like a, say a, twenty (20) foot 13 fibre glass boat, in-board out-board. 14 Q: Okay. Did you observe any alcohol 15 use in the Park that day? 16 A: In the Park? 17 Q: On Tuesday. 18 A: Not really. Like there was probably 19 people riding round having a beer or something. 20 Q: All right. So some beer in the Park? 21 A: Yeah, not a whole lot. 22 Q: Did you see any excessive use of 23 alcohol? 24 A: No. 25 Q: All right.
771 A: Not inside the Park. But I know that 2 there were some people up in the built-up area that were 3 drinking. 4 Q: All right. Fair enough. And did 5 these people subsequently come down to the Park, any of 6 them, in an inebriated state? 7 A: Yeah, I imagine so. People were 8 coming and going. 9 Q: And when you say you imagine so, do 10 you recall some -- 11 A: Well, yeah. 12 Q: -- individuals? Okay. Fair enough. 13 And can you -- do any such individuals come to mind? 14 A: No. 15 Q: All right. And once they came to the 16 Park, was there any disturbances that occurred involving 17 any of these individuals? 18 A: No. 19 Q: All right. Mr. Simon, at any time 20 did you see anyone in the Park on Tuesday, September the 21 5th with guns of any kind? 22 A: No. 23 Q: Did you see any guns located in the 24 Park that day? 25 A: No.
781 Q: Were you aware of any guns being 2 hidden or stored within the Park that day? 3 A: No. 4 Q: Were you aware of any plans to bring 5 guns into the Park? 6 A: No. 7 Q: Did you hear any gunshots or anything 8 that may have sounded like gunshots in or around the Park 9 on Tuesday, September the 5th? 10 A: Just fireworks, fire crackers and 11 fireworks. 12 Q: As the night before? 13 A: Yeah. 14 Q: And when were they lit? 15 A: Just all -- during all different 16 times. 17 Q: Was it also during the day? 18 A: Yeah. 19 Q: And the evening? 20 A: Yeah. 21 Q: Okay. And do you know who was 22 setting off these fire crackers? 23 A: Not personally, no. Just kids were 24 running around, playing. 25 Q: Did you go hunting in the Park at any
791 time on September the 5th? 2 A: No. 3 Q: Was the Park somewhere that you had 4 hunted at before? 5 A: No. 6 Q: Why not? 7 A: Well, it's -- there's a big fence 8 that goes up, pretty much all the way around it and 9 there's not too much game inside the Park, so. 10 Q: Fair enough. To your knowledge, did 11 anyone else hunt in or around the Park on Tuesday, 12 September the 5th? 13 A: No. 14 Q: Now Mr. Simon, the Commission may 15 hear evidence that some people heard gunshots or sounds - 16 - things that sounded like gun shots on Tuesday, 17 September the 5th. 18 Would such evidence alter your evidence 19 with respect to the presence of guns or gunshots in the 20 Park on those -- 21 A: No. 22 Q: -- on that day? All right. Or on 23 the previous day? 24 A: No. Nothing. 25 Q: Thank you. Did you have any of your
801 guns at the built-up area on either September the 4th or 2 September the 5th, Monday or Tuesday? 3 A: No. 4 Q: To your knowledge, were there any 5 guns present or located within the built-up area on 6 either of those days at -- at the Camp Ipperwash? 7 A: I don't know of any, but there could 8 have been. 9 Q: Okay. And you say, There could have 10 been. Why -- why do you say that? 11 A: Well, I'm -- I guess I didn't go look 12 around in everybody's house to see what they have. 13 Q: All right. Did you hunt at all on 14 the Camp Ipperwash lands as distinct from the Park on 15 September the 5th. 16 A: No. 17 Q: Okay. Were others, to your 18 knowledge, hunting on the -- Camp Ipperwash lands on 19 Tuesday, September the 5th? 20 A: No. 21 Q: And did you hear any gunshots or 22 anything that sounded like gunshots within the Camp 23 Ipperwash lands on Tuesday, September the 5th? 24 A: Yeah, probably fireworks. 25
811 (BRIEF PAUSE) 2 3 Q: All right. Did you witness any other 4 incidents or activities of note that occurred on Tuesday, 5 September the 5th, which we have not already reviewed? 6 A: No. 7 Q: Did you witness any further 8 interactions as between Dudley George and any members of 9 the police force? 10 A: No. 11 Q: Did you witness any other interchanges 12 as between members of your group and the police on that 13 day other than what you've already told us? 14 A: No. 15 Q: To your knowledge, were there any 16 attempts made by the police or Park officials to deliver 17 some form of written document to you or to members of 18 your group at the Park on that day? 19 A: Yeah, they were trying, like, all day 20 and I think I remember Vince being around there, too, 21 later on that night and he was trying to get -- call 22 people over -- 23 Q: Just -- 24 A: Trying to get -- trying to give them 25 some kind of -- he had papers in his hands.
821 Q: Now, Vince George is a -- a member or 2 was a member of the Ontario Provincial Police. 3 A: Hmm hmm. Yes, he was. 4 Q: And he was someone who was familiar to 5 you? 6 A: Yes. 7 Q: All right. And why wouldn't -- well - 8 - why didn't you go over and talk to Vince George? 9 A: I just -- I didn't want to go over and 10 talk to him. 11 Q: All right. 12 A: I don't know. I didn't want to be 13 seen as a leader, like I said earlier, I think. 14 Q: Do you have any knowledge or belief as 15 to what types of papers the police were trying to deliver 16 to you? 17 A: At some point we heard that the police 18 and the Park -- like the police were trying to seek an 19 injunction to have us removed. And then somebody -- I 20 don't know -- must have had some kind of, like, 21 understanding of the property laws -- that you would have 22 to be served this injunction before they could act upon 23 it. And so nobody wanted to go and grab these piece -- 24 papers because they figured it was that injunction. 25 Q: All right. And how is it that you
831 came to the understanding that the documents in question 2 were likely -- likely had to do with an injunction? 3 Where'd that information come from? 4 A: It could have been at one (1) of those 5 circles that we have. 6 Q: All right. You continued to have 7 circles during the course of the day? 8 A: Usually at nighttime or in the 9 morning. 10 Q: Okay. 11 12 (BRIEF PAUSE) 13 14 Q: What -- you indicated that you went 15 back to the built-up area at about 4:00 a.m. 16 A: Hmm hmm. Yes, I did. 17 Q: And did you remain in the barracks for 18 the balance of that evening? 19 A: Yes, I did. 20 Q: And how much sleep do you think you 21 got over those two (2) nights in total -- Monday night 22 and Tuesday night? 23 A: Not a whole lot, probably I'd say 24 maybe ten (10) hours sleep. 25 Q: In total.
841 A: Yeah. 2 Q: So, from about 4:00 a.m. until -- 3 A: 9:00. 4 Q: 9:00 or so? Now, did they -- 5 A: 9:00, maybe that night. I'm not sure. 6 Q: I think you said to me earlier that 7 you arrived at the Park Tuesday morning at about 6:00 or 8 7:00 in the morning. 9 A: Hmm hmm. 10 Q: Is that correct? 11 A: Yeah. 12 Q: And you went -- returned to the 13 barracks Monday night at about 4:00 in the morning. 14 A: Yeah. 15 Q: So you would have had about three (3) 16 hours sleep that night. 17 A: Yeah. 18 Q: And what time did you -- or, I should 19 ask this first -- did you return to the Park the 20 following day, Wednesday, September the 6th? 21 A: Yeah. 22 Q: And approximately what time did you 23 return to the Park? 24 A: Probably about 9:00 in the morning. 25 Q: All right.
851 A: 9:00 or 10:00. Somewhere in there. 2 Q: And again, what route did you take to 3 enter the Park that morning? 4 A: The same route, parallel to Army Camp 5 Road and through the Park, through to the maintenance 6 building. 7 Q: All right. So another internal 8 route? 9 A: Yeah. 10 Q: And when you arrived in the Park 11 Wednesday morning at 9:00 or 10:00, what was the first 12 thing you observed? 13 A: I don't know, just the same things, I 14 guess, pretty much. People -- and people around, and 15 were asking what -- what happened during the night or 16 whatever. 17 Q: Were there -- were there women and 18 children at the Park by this hour? 19 A: Yeah, probably, yes. 20 Q: And were the activities similar to 21 the ones that you described as the day before? 22 A: Yes. 23 Q: Can you describe the level of police 24 presence that you observed around the Park as compared 25 with the day before?
861 A: It seemed like it was getting more 2 busier with police activity. 3 Q: All right. And can you give me an 4 example of what you mean by busier, in terms of what 5 types of police activities were increasing? 6 A: It seemed like there was, like, more 7 police at the road blocks, more patrols. 8 Q: And, again, were the police patrols 9 confined to areas outside of the Park? 10 A: Yeah. Yes, they were. 11 Q: And were there still two (2) road 12 blocks in the location you indicated the day before? 13 A: Yes. 14 Q: Were there any more checkpoints or 15 road blocks that you observed? 16 A: That I observed, no. But, yeah, I 17 was aware that there were other road blocks around. 18 Q: And how -- how did you become aware 19 of that? 20 A: Just people that were coming up to 21 the Park, and then there was some people that were coming 22 through this way and wondering, like, wondering how they 23 were getting through, or they were telling us that there 24 was road block and then later on we were just wondering 25 how other people were getting through there.
871 Q: Okay. And now you were pointing on 2 the map to East Parkway Drive? 3 A: Yeah. 4 Q: Do I understand that -- that you were 5 informed that there was a road block on that road now? 6 A: Yeah. 7 Q: All right. Were people still able to 8 enter and leave the Park, based on your observation? I 9 don't mean the -- the internal routes, but in terms of 10 the external routes? 11 A: The external routes, no. Really, I 12 never, ever seen anybody try, everybody was pretty much 13 cruising on the inside internal routes. 14 Q: Okay. What was your reaction to the 15 -- the build-up of police presence during the course of 16 the day? 17 A: My reaction, well, I'd be starting to 18 get worried, I guess. Oh yeah, there was a helicopter 19 was flying around too, on the 6th. 20 Q: Tell me about that. 21 A: I don't know, it would just -- it 22 would fly over and then wherever it seen people, it would 23 come back around and it would just come -- fly right, 24 just hover, just over and not too -- not too far over in 25 the air.
881 Q: Can you describe what the helicopter 2 looked like? 3 A: It was like a big yellow helicopter. 4 Q: All right. And -- 5 A: And there was a guy and a doorway was 6 open, there was a guy with a big camera. 7 Q: And where was the person aiming the 8 camera? 9 A: He was aiming it all over, whoever 10 was around, pointing it right at people that were sitting 11 around. 12 Q: And -- 13 A: And this helicopter was coming right 14 down, it was making big dust storms, wind was blowing 15 everything all over, anything that wasn't nailed down 16 pretty much was blown all over. 17 Q: And how many times did the helicopter 18 pass over the Park, that you saw? 19 A: How many times? It was just on and 20 off all day. 21 Q: And at any point would the helicopter 22 stay stationary in the -- in the air for a period of 23 time? 24 A: Yeah. 25 Q: Now, what was the reaction, if any,
891 of the members of your group to this helicopter activity? 2 A: I don't know. Just people were -- 3 well mostly everybody was running around trying to gather 4 up whatever was getting blown around and people that 5 weren't were like just -- hand gestures to the people in 6 the helicopter. 7 Q: And what kind of gestures were they 8 making towards the people in the helicopter that you saw? 9 A: Shooting them the finger and stuff 10 like that. 11 Q: Did you witness anybody throwing any 12 objects at the helicopter? 13 A: Not that I recall. 14 Q: Did you throw anything at the 15 helicopter? 16 A: I could have. 17 Q: Well, tell what it is you recall 18 about that? 19 A: Well, I don't really recall if I did 20 or not. I don't think I did, but I might have. But they 21 were definitely low enough that you could throw something 22 at it and hit it. 23 Q: All right. And can you tell me 24 approximately how many feet from the ground the 25 helicopter was from time to time?
901 A: There was one point where I was 2 fuelling up the bus and then the helicopter come over and 3 it was just I'd say fifteen (15) feet above the air -- or 4 fifteen (15) feet in the air from the ground. Not very 5 high at all. I thought he was going to come and land 6 right there. 7 Q: All right. What location was that 8 within the Park relative say to the marker like the store 9 or the water treatment plant? 10 A: It was right at -- right in the 11 compound for the maintenance shed. 12 Q: Where the maintenance shed was? 13 A: Yeah. The maintenance shed was right 14 around this area and then there's a fenced in compound 15 all around it. It was right in there. There's fuel 16 pumps -- fuel pumps for vehicles or whatever for the Park 17 guys. I was pumping gas out of there into the bus. 18 Q: Okay. So that -- you've pointed on 19 the map to an area that's essentially the southwestern 20 corner of the Park? 21 A: Yeah. 22 Q: Where the maintenance shed compound 23 was? 24 A: Yes. 25 Q: And a gas pump.
911 A: Yes. 2 Q: Fair enough. When you arrived at the 3 Park that morning, were the picnic tables which were at 4 the sandy parking lot still there? 5 A: No. 6 Q: Do you know what happened to them? 7 A: Somebody said the police come and 8 grabbed them all up. 9 Q: Were any of the occupants outside of 10 the Park in that sandy parking lot area during the course 11 of the day that you saw? 12 A: Not that I recall. I -- it's been so 13 long. 14 Q: Fair enough. It has been a few years 15 since -- since this and I appreciate you're making your 16 best efforts to recollect. 17 Were there any measures taken that day to 18 continue to securing the Park on the part of the 19 occupants? 20 A: Measures? I don't know everybody was 21 kind of -- yeah, I guess everybody was feeling that it 22 was escalating and I think we started a -- like a 23 rotation for the different observation points where 24 people would be manning them at different times. 25 Q: Okay. So it became more of an
921 organized manning of the stations if you will? 2 A: Yeah, yeah. 3 Q: Okay. And were people gathering any 4 objects or making any provisions for the possibility of 5 an encounter? 6 A: Yeah. 7 Q: And what -- what specifically were 8 they doing? 9 A: I don't know. We just kind of 10 figured it would be like the night before where we were 11 throwing rocks and stuff at police officers. So that 12 everybody started building up rocks and sticks or what 13 not. 14 Q: And -- and steel pipes, were they 15 still around? 16 A: Yeah. Yeah. 17 Q: Baseball bats? 18 A: Yeah. 19 Q: Anything else besides from those 20 types of objects? 21 A: No. 22 Q: And what role if any or what did you 23 -- what did you do that day to ready yourself and -- and 24 secure the Park? 25 A: Myself? I don't know. I got --
931 let's see. What did I do? I got... 2 3 (BRIEF PAUSE) 4 5 A: I got the bus. 6 Well, I didn't know if the police were 7 going to be coming in and moving everybody out, so I 8 loaded up all the gas cans I could find and started 9 loading up the gas into the gas cans and moving those all 10 over, stashing them all over the army base and then -- 11 then went and got the bus going. 12 Because the bus was very helpful and, 13 like, earlier things that we used it for. 14 Q: All right. 15 A: So I got the bus running again and 16 got -- Parked that down at the place down there. 17 Q: Parked in the -- in the Park? 18 A: Yeah. 19 Q: Okay. Anything else? 20 21 (BRIEF PAUSE) 22 23 A: No, that was pretty much all I did. 24 MS. SUSAN VELLA: All right. Mr. 25 Commissioner, I've noticed that it is noon and we have
941 agreed that we would break for lunch at this time and 2 excuse the witness until tomorrow morning at 9:00. 3 COMMISSIONER SIDNEY LINDEN: Will you be 4 available to come back tomorrow morning at nine o'clock? 5 THE WITNESS: Yeah. 6 COMMISSIONER SIDNEY LINDEN: If the 7 Motion is finished, we'll start at nine o'clock, if not 8 we'll start as soon as it is finished. 9 THE WITNESS: Okay. 10 11 (WITNESS RETIRES) 12 13 MS. KIM TWOHIG: Your Honour, there's 14 something I'd like to raise before we break for lunch and 15 that is the extent to which the public should be excluded 16 from the hearing of the Motion this afternoon. 17 It's important that as much of the hearing 18 as possible be held before the public and that would 19 include any Motions that the Commission is asked to 20 address, subject of course, to very limited exceptions. 21 The moving parties in this Motion have 22 taken the position that it's necessary for them to play 23 certain audio tapes and to make submissions based on the 24 content of those audio tape. 25 For that reason, the submissions of the
951 moving parties should be held in the absence of the 2 public. However, the Motion raises other issues beyond 3 just the audio tapes which may be of interest to the 4 public. And the Province does not need to refer to the 5 content of the audio tapes in order to make its 6 submissions on these broader issues. 7 So what we request is that the province 8 and any other party who is able to make submissions 9 without referring to the content of the audio tapes and 10 who wishes to do so, should be permitted to make their 11 submissions in public. 12 In the alternative, I would request that 13 parties be allowed to make their written submissions 14 available to the public, provided that they do not 15 disclose the content of any document that has not been 16 made public through the Inquiry process. 17 In my submission, this would minimize the 18 need to exclude the public from the Hearing and would not 19 result in any injustice to the moving parties. Thank 20 you. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much Ms. Twohig. Mr. Millar, do you want to speak 23 to that before I adjourn? 24 MR. DERRY MILLAR: Well, perhaps what we 25 might do is discuss this issue in public at one o'clock
961 when we get back and -- because one (1) of the issues 2 that we will have to discuss is how much is in public and 3 how much is in private. 4 COMMISSIONER SIDNEY LINDEN: I think 5 that's the first issue we need to talk about. 6 MR. DERRY MILLAR: Yes. So we'll talk 7 about that at one o'clock when we come back and the 8 public will have access to the room to hear that and the 9 media. 10 COMMISSIONER SIDNEY LINDEN: So everybody 11 will be -- it's still open to the public when we return 12 at one o'clock -- 13 MR. DERRY MILLAR: Yes. 14 COMMISSIONER SIDNEY LINDEN: -- until 15 further notice? 16 MR. DERRY MILLAR: Yes. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 THE REGISTRAR: This Inquiry stands 19 adjourned until one o'clock. 20 21 --- Upon recessing at 12:05 p.m. 22 --- Upon resuming at 1:07 p.m. 23 24 THE REGISTRAR: This Inquiry is now 25 resumed. Please be seated.
971 MR. DERRY MILLAR: Commissioner, if I 2 might, before we start with the motion -- the -- there's 3 a small bit of housekeeping I wanted to clear up, and 4 that is on the week -- the Thanksgiving week of the 12th, 5 13th, 14th and 15th. 6 Thanksgiving is on the Monday the 11th and 7 we had scheduled, because the Monday was a holiday, four 8 (4) days that week and what we're going to do is not sit 9 the Friday, the October 15th, so I wanted to alert 10 everyone that we will not sit the Friday. We should have 11 simply stopped at the Thursday as our normal course and 12 so we won't sit the Friday. 13 Now the first issue that we have to deal 14 with is -- is the motion and it's the public/private 15 aspect of the motion, Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Okay. I 17 just would like to say a couple of things before we 18 start. Just before you start, Mr. Horton, I just wanted 19 to say. It's good to see Mr. Sandler's here, Mr. 20 Henderson's here, everybody here I gather -- everybody 21 who intended to be, is here. 22 I -- I'd like to begin by saying that I've 23 read all of the material, all of the submissions that 24 have been filed by all of the parties to this motion. So 25 we can start with that assumption. I've read it all.
981 And I would like to say at the outset what 2 Commission counsel have already said. Namely, that it's 3 always been our intention to introduce these tapes into 4 evidence and therefore into the public domain at the 5 appropriate time. 6 So this motion is not about whether the 7 tapes will be made public; it's about the timing of when 8 they will be made public. And as I have said before, 9 it's not a trial, it's an inquiry, which is essentially 10 an investigation conducted in public. 11 Unlike the judge in a trial, as a 12 Commissioner, I have access to all of the information 13 that's being gathered continuously, including these 14 tapes, by my counsel and by the parties. 15 This Inquiry up to this time has operated 16 in exactly the same manner as all other inquiries. 17 Information is gathered, it's reviewed and analysed by 18 Commission counsel under my general direction, it's then 19 disclosed to parties and eventually introduced in 20 evidence in a timely and logical fashion which is fair to 21 all parties. 22 This motion seeks to have me exercise my 23 discretion and release these tapes to the public before 24 they're introduced in evidence and I'm prepared to hear 25 that motion now. In view of the fact that it may be
991 possible for most, if not all parties, to make their 2 submissions in public I think we should consider that 3 issue first. 4 So I'm going to canvas you if anybody -- 5 if anybody can't do it in public, I would like to hear 6 from them. I'm not sure which is the -- which is the 7 prevailing view, public or private. I assume it's public 8 but it may be private so perhaps we'll deal with the 9 public part first. 10 Is there -- is there anybody who cannot 11 make their submissions on this motion in public? You -- 12 you're the principal mover, so is there anybody who 13 cannot make their submissions in public? 14 MR. WILLIAM HORTON: Commissioner, as -- 15 as it is my motion, I just -- I wanted to just say a few 16 words and in fact Mr. Millar had indicated that I should 17 say a few words with respect to the aspect of my motion 18 where I requested that the motion be heard in-camera. 19 And in that regard, I just want to say 20 that the -- the purpose of my making that request on the 21 face of my Motion was that I did not want anyone to think 22 that by bringing them -- I -- I was seeking to reveal the 23 evidence by bringing the Motion itself. 24 COMMISSIONER SIDNEY LINDEN: I understand 25 that.
1001 MR. WILLIAM HORTON: So, recognizing that 2 there was a need to ask you for a direction as to whether 3 or not the Motion would be heard in public or in-camera. 4 Now, in that regard, because the -- the 5 Motion refers to evidence that is subject to the 6 confidentiality undertaking and there's no suggestion 7 that that should be broken, it's part of the process that 8 we ask you whether or not it could be put on the record 9 at an earlier stage. That's what we're doing. 10 I -- I don't see how we can make 11 submissions with respect to what are now very commonly 12 referred to as "the tapes" and so I will refer to them as 13 "the tapes", how we can make specific submissions with 14 respect to the tapes in public without revealing the 15 content of the tapes. 16 However, having said that, there is very 17 much in my submissions that can and probably should be 18 said in public. So, I am very much in favour of what Ms. 19 Twohig suggested, which is that we do as much as we can 20 of a general nature in public with respect to the issue 21 of timing of disclosure and then deal with the -- with 22 whatever content cannot be dealt with in public, in -- 23 in-camera. 24 COMMISSIONER SIDNEY LINDEN: The thing 25 is, I don't want to hear from everybody twice, once in
1011 public and then again in private. I mean, if there's 2 legitimately -- if the majority of what you can say is in 3 public, I think we should hear that and if -- you may be 4 an exception in that you're split between being able to 5 do -- 6 MR. WILLIAM HORTON: Yeah. 7 COMMISSIONER SIDNEY LINDEN: -- some in 8 public and some in private; that may not be the ordinary 9 situation, so I think we should look around. 10 MR. WILLIAM HORTON: Yes, it -- it may be 11 that there are others who can make their full position 12 known without referring to the tapes specifically. 13 COMMISSIONER SIDNEY LINDEN: I gather 14 that from reading the submissions. 15 MR. WILLIAM HORTON: Yes, but -- but I'm 16 certainly not in that category. I would need to make 17 supplementary submissions with respect to the tapes. 18 COMMISSIONER SIDNEY LINDEN: That's fine 19 and I know that having read the submission of Mr. 20 Klippenstein, the submission makes reference to the tapes 21 in the submission. It would be difficult, but perhaps we 22 should hear from you. You're a mover, as well, in a 23 sense. Is it possible -- I'm sorry, you're not finished 24 yet? 25 MR. WILLIAM HORTON: Well, there was just
1021 this -- 2 COMMISSIONER SIDNEY LINDEN: We're over 3 on the public/private part, now. 4 MR. WILLIAM HORTON: I understand and -- 5 and we -- I just had one (1) more comment on that. If 6 submissions -- written submissions -- are going to be 7 released to the -- the press, then because we didn't 8 bifurcate our submissions, we would need to do that and - 9 - 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. WILLIAM HORTON: -- take that part of 12 our submissions that can be dealt with and it may be that 13 they would have to be rewritten to a degree because we've 14 integrated some of the -- some of those components. So, 15 that's the only other -- I think -- indulgence that we 16 would require in that -- 17 COMMISSIONER SIDNEY LINDEN: That's 18 certainly understood. Again, most of the submissions 19 could be released to the public in their present form, 20 but some obviously could not without revealing the 21 subject of the tapes. 22 Yes, Mr. Klippenstein? Is it possible for 23 you to make your motion in -- in public, given that I 24 have read every word in your submission? 25 MR. MURRAY KLIPPENSTEIN: The short
1031 answer has two (2) parts and the first is that, in 2 principle, the Dudley George estate and family group is 3 supportive of public argument on this issue and on -- on 4 pretty much every other issue. 5 The second part, however, is that I'm like 6 Mr. Horton, in the position of not having any awareness 7 that this was going to come up in this way and so our 8 fairly extensive submissions were all put together as one 9 (1) package and we could bifurcate it. Whether I could 10 do that, having this very short notice, is another 11 matter. 12 But we have -- we think it is very hard to 13 make an adequate decision on this issue, namely the 14 public release of the tapes, without referring to the 15 tapes in detail and I won't do that right now. 16 But if we are one (1) of the few parties 17 who based a great deal of our argument specifically on 18 the tapes, then we probably are prejudiced more than 19 anybody else, potentially, by having our argument heard 20 in-camera. 21 I don't mind doing that, it's just a 22 question of -- of timing and having -- I wish we'd had a 23 little more notice of this idea, if I may say so. 24 COMMISSIONER SIDNEY LINDEN: I just had 25 an opportunity to read the submissions on the way up here
1041 from Toronto on Monday, Monday morning, and completed 2 reading them just last night. Yes...? 3 MR. MURRAY KLIPPENSTEIN: And I -- I 4 think also there's a possibility that the public argument 5 may be, perhaps, not fully balanced if all the public 6 aspects deal with certain parts of it and what we think 7 is perhaps, the most important parts of the argument, are 8 not heard in public. 9 So that is a curious situation. I don't 10 think we oppose that. It's just a concern, right now. 11 The other thing is -- My Friend for the -- 12 for the Government of Ontario has referred to certain 13 other issues and I don't know what that means. I don't 14 know if by other issues, those are other -- issues other 15 to what we think is the issue, namely -- what we 16 understand to be the issue, namely whether the tapes 17 should be released now as is our view, or -- of what else 18 she may be talking about. 19 And if there's -- if there's something 20 else involved, we might want to address that now or 21 later. 22 COMMISSIONER SIDNEY LINDEN: Fine. As 23 far as I know, this is simply about the question of when 24 the tapes are to be released. 25 Is there anybody else who -- who would
1051 like to speak to the question of public versus private? 2 Mr. Rosenthal ...? 3 MR. PETER ROSENTHAL: Thank you, and good 4 morning, Mr. Commissioner. I have two (2) brief 5 arguments to make, one (1) of which I can make without 6 referring to the content of the evidence, but the other 7 which would -- require some brief reference to the 8 content. 9 Neither argument would take me more than 10 five (5) minutes to make. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 13 (BRIEF PAUSE) 14 15 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 16 Sandler. 17 MR. MARK SANDLER: Good afternoon, Mr. 18 Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Good 20 afternoon. 21 MR. MARK SANDLER: It is my respectful 22 submission that this entire motion can be heard in public 23 and none of it has to be heard in-camera. 24 My submissions are -- are these. First of 25 all, you do have extensive written submissions that have
1061 been made in-camera and that, as you've indicated, you've 2 had the full opportunity to read. 3 Second of all, it would appear that 4 several of the parties moving in favour of the 5 Application have argued that -- that you should 6 appreciate the importance or centrality of these tapes to 7 the issues that are raised at this Inquiry and the issues 8 that they raise for the witnesses at the Inquiry. 9 Speaking only for myself, but I suspect 10 for every party here who opposes this Motion, I take no 11 issue either with the relevance of the tapes or their 12 ultimate importance, when tendered to the witnesses at 13 the Inquiry. 14 So, if the argument that must be developed 15 in-camera has to do with the purported centrality of the 16 tapes or their importance or their relevance, I can say 17 that that's not the issue on which this Application is 18 being resisted. 19 It's being resisted on the basis of a 20 principled approach to how a public inquiry should be 21 conducted and -- and with great respect, whether this is 22 an Inquiry to be regulated by the rules that -- that 23 tender evidence before you, Commissioner, or whether this 24 is Inquiry by media. 25 So my respectful submission is that the
1071 OPP opposes the Motion being heard in-camera at all on a 2 principled basis. But recognizing that the movers don't 3 share my view as to the issues of importance to them, 4 nonetheless, those concessions should resolve the issue, 5 because you have had the benefit of reading what they 6 have to say as to the importance of the tapes. 7 You do have a concession, I can tell you, 8 up front that from the OPP that the items are relevant, 9 that the items are important. And as you've seen in my 10 own materials, that the OPP will have no difficulty with 11 these items being put forward and indeed, will place 12 reliance upon them ourselves. 13 So that being the case, it's difficult to 14 see why we should engage in what is undoubtedly an 15 extraordinary procedure to have a public inquiry heard 16 even in part, in-camera. 17 Those are my respectful submissions. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much. Good afternoon. 20 MS. KAREN JONES: Good afternoon, Mr. 21 Commissioner. Mr. Commissioner, the issue as originally 22 set out by you was regarding disclosure of the tapes, or 23 early disclosure of the tapes. And one (1) thing that 24 may be of assistance to me, and perhaps to others, is in 25 the Chippewas of Kettle and Stony Point submission,
1081 there's additional relief requested. 2 And that is if you look at the res -- 3 outline of the Chippewas of Kettle and Stony Point 4 response to motion under paragraph 2(b) and 2(c), it 5 appears that further relief in addition to the tapes is 6 being sought. 7 And so perhaps, Mr. Commissioner, you 8 could clarify or help us understand. 9 COMMISSIONER SIDNEY LINDEN: What -- what 10 page of that submission are you looking at? 11 MS. KAREN JONES: I'm looking at the 12 outline of Chippewas and Kettle and Stony Point -- 13 COMMISSIONER SIDNEY LINDEN: I have that 14 in front of me. 15 MS. KAREN JONES: -- to the motion -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MS. KAREN JONES: -- and I'm looking at 18 paragraph 2(b) -- 19 COMMISSIONER SIDNEY LINDEN: 2(b). 20 MS. KAREN JONES: -- and 2(c). And it 21 appears that the prayer for relief that's listed there is 22 far broader. 23 MR. DERRY MILLAR: Well, if I'm -- simply 24 might on that issue I think Mr. Horton -- Mr. Horton 25 seeks the same thing as I do -- I believe Mr.
1091 Klippenstein, the disclosure of all core documents or 2 central documents. So it's just -- oh, Mr. Klippenstein 3 just sees tapes, but Mr. Horton asked for all core or 4 central documents, whatever that means and perhaps they 5 will tell us. But the -- so those -- that is a live 6 issue unless people -- 7 COMMISSIONER SIDNEY LINDEN: I -- I've 8 defined it a little too narrowly by saying just the 9 tapes. That's fine. Somebody wish to comment on whether 10 this -- this motion can be made in public or in private? 11 Mr. Henderson and then Mr. -- Mr. Downard. I want to 12 give everybody a chance to speak to this if you want to. 13 MR. WILLIAM HENDERSON: Just with respect 14 to My Friend's comments on our pleading I -- I think you 15 will see Commissioner that we -- we were attempting to 16 paraphrase the relief requested by Mr. Horton. We're not 17 making a motion for any other or separate relief. What 18 we have described is subsumed we think in -- in the 19 outline. 20 COMMISSIONER SIDNEY LINDEN: In the 21 motion. 22 MR. WILLIAM HENDERSON: Whether or not 23 that's relevant to the private issue we have nothing by 24 way of oral submission to make to you that we are not 25 prepared to make in public.
1101 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much. Mr. Downard...? 3 MR. PETER DOWNARD: Mr. Commissioner, I'm 4 entirely content to agree with Mr. Sandler's position 5 save only that I would submit that the ultimate so-called 6 centrality of this tape is going to be a matter that can 7 only be determined at the end of the day. And I would 8 not want to be taken as a -- agreeing with the position 9 that is central. 10 Particularly given that in our submission 11 which we may get into later, their importance has already 12 been greatly distorted. But I won't pursue that further 13 now. 14 COMMISSIONER SIDNEY LINDEN: Does anybody 15 else wish to comment on whether or not this motion can be 16 heard in public or in private? 17 MR. DERRY MILLAR: It may be, 18 Commissioner, that what we -- 19 COMMISSIONER SIDNEY LINDEN: Sorry, I 20 should say in-camera. 21 MR. DERRY MILLAR: Yeah. What we should 22 perhaps do -- and to be in fairness to Mr. Horton and Mr. 23 Klippenstein is that we could hear the motion perhaps in 24 its entirety in public and -- with submissions from all 25 of the parties.
1111 And then at the conclusion of those 2 submissions, if there is anything that needs -- that Mr. 3 Horton and Mr. Klippenstein and Mr. Rosenthal wish to add 4 in private, in-camera, we could then go in-camera for 5 that part of it. And -- so that their arguments are 6 presented as they would like to see them presented. 7 COMMISSIONER SIDNEY LINDEN: That may be 8 a workable solution. Everybody's spoken. I -- I think 9 what we should do, whoever's going to go first, Mr. 10 Horton and/or Mr. Klippenstein, I think we should take a 11 short break so you can adjust your positions depending on 12 what our decision is. 13 MR. DERRY MILLAR: Perhaps as well, 14 Commissioner, the parties could well, you're taking a 15 short break, consider how long they're going to be. We - 16 - 17 COMMISSIONER SIDNEY LINDEN: That's -- 18 MR. DERRY MILLAR: -- one (1) person 19 needs to be finished today, Ms. Spies, because she can't 20 be here tomorrow. She may have to play through but from 21 our perspective if we could get this done today, we would 22 appreciate it so that we could deal with Mr. Simon again 23 tomorrow and deal with his evidence so that as you've 24 said, you've read all of the material -- 25 COMMISSIONER SIDNEY LINDEN: Yes.
1121 MR. DERRY MILLAR: -- you're familiar 2 with the issues and hopefully, perhaps when we -- when 3 you come back, the parties could indicate how much time 4 they think they will be. 5 COMMISSIONER SIDNEY LINDEN: I think 6 that's the first question I would ask -- exactly that, 7 and whether or not everybody wishes to speak on the 8 Motion. Some haven't filed any material and haven't 9 indicated any intention to, so I think we should do a 10 little go-around just to get some idea of how long we 11 might be. So, we'll do that right after a short break. 12 All right, then. 13 THE REGISTRAR: All rise, please. We'll 14 recess for fifteen (15) minutes. 15 16 --- Upon recessing at 1:27 p.m. 17 --- Upon resuming at 1:45 p.m. 18 19 THE REGISTRAR: This inquiry is now 20 resumed. Please be seated. 21 COMMISSIONER SIDNEY LINDEN: Okay. What 22 we're going to do, then, is proceed in public as far as 23 we can and give everybody an opportunity who wants to 24 speak. 25 I'm going to canvass you right now just to
1131 get an idea of how long you might be and how many want to 2 speak to it, and then any who feel -- any Parties who 3 feel that they need an opportunity to do some of their 4 argument in-camera, we'll adjourn and go in-camera to 5 give you an opportunity to do that. Is that fair enough? 6 Okay, now, how many -- obviously Mr. 7 Horton, on behalf of the Chiefs, is making the motion. 8 Roughly, how long do you think you might be? 9 MR. WILLIAM HORTON: I think 10 approximately an hour in public and half an hour in 11 private. 12 COMMISSIONER SIDNEY LINDEN: And, Mr. 13 Klippenstein, how long do you think you might be? 14 MR. MURRAY KLIPPENSTEIN: About the same. 15 COMMISSIONER SIDNEY LINDEN: And, Mr. 16 Henderson, how long do you think you might be? 17 MR. WILLIAM HENDERSON: I would think 18 fifteen (15) to twenty (20) minutes, Commissioner -- all 19 in public. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 Mr. Ross, do you intend to speak to it? 22 MR. ANTHONY ROSS: I do not intend to 23 speak to it. 24 COMMISSIONER SIDNEY LINDEN: Do not 25 intend to speak to it. Aboriginal Legal Services, do you
1141 intend to speak to this Motion? 2 MR. BRIAN EYOLFSON: I would like to 3 speak to the Motion, perhaps ten (10) minutes. 4 COMMISSIONER SIDNEY LINDEN: Okay. Mr. 5 Rosenthal...? 6 MR. PETER ROSENTHAL: Yes, sir, I would 7 expect ten (10) minutes in public and perhaps two (2) 8 minutes in-camera depending upon if I read your face as 9 to whether you understand what I'm saying. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 Ms. Twohig...? 12 MS. KIM TWOHIG: I think I'll only be 13 about five (5) minutes. 14 COMMISSIONER SIDNEY LINDEN: Mr. 15 Downard...? 16 MR. PETER DOWNARD: Commissioner, I would 17 expect to be about five (5) minutes in my submission, 18 save only that I am referring to a video tape of a media 19 conference held by Mr. Klippenstein and Mr. Orkin and if 20 you wanted to see that or someone else wanted to seek 21 leave to have that shown, that's a twenty-five (25) 22 minute videotape and that could extend the time, but I'm 23 going to attempt to make my submissions very briefly 24 without doing that. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
1151 I don't think there's anybody -- is there anybody here on 2 behalf of Mr. Harnick? I don't think so. 3 MR. DERRY MILLAR: No. 4 COMMISSIONER SIDNEY LINDEN: And Ms. 5 Spies on behalf of Mr. Runicman. 6 MS. NANCY SPIES: I would expect in the 7 range of ten (10) minutes, Mr. Commissioner. 8 COMMISSIONER SIDNEY LINDEN: And I know 9 that we have to try to get to you before the day is over. 10 Anybody on behalf of Mr. Beaubien? Mr. Sulman, do you 11 intend to speak to the Motion? 12 MR. DOUGLAS SULMAN: Yes, Your Honour. 13 Yes, Your Honour. I would anticipate it would be five 14 (5) minutes in-chief, but I -- I want to point that we 15 are the Respondents and although I filed both an outline 16 and a written submission -- 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. DOUGLAS SULMAN: -- which cover things 19 pretty thoroughly -- 20 COMMISSIONER SIDNEY LINDEN: Yes, that's 21 -- 22 MR. DOUGLAS SULMAN: -- but, as I say, we 23 are the Respondents, so there may be some of us who need 24 to respond to submissions that are made by the Proponents 25 --
1161 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MR. DOUGLAS SULMAN: -- so that may 3 extend the period of time. 4 COMMISSIONER SIDNEY LINDEN: The OPP? 5 MR. MARK SANDLER: I'd say approximately 6 thirty (30) minutes or less in public, but I -- I do 7 point out, Commissioner, that in the event submissions 8 are made in-camera, you have my submissions as to whether 9 that need take place. But if, in doing so, those 10 submissions in-camera raise, in effect, argument on the 11 merits of the matter before you, then I may have to 12 address those as well. 13 COMMISSIONER SIDNEY LINDEN: The OPPA...? 14 MS. KAREN JONES: Mr. Commissioner, 15 approximately five (5) to ten (10) minutes. 16 COMMISSIONER SIDNEY LINDEN: Thank you 17 very much. Counsel on behalf of Deb Hutton...? 18 MS. ANNA PERSCHY: Mr. Commissioner, I 19 just think that any submissions that I may make are 20 likely to be covered by other Counsel but perhaps five 21 (5) to ten (10) minutes. 22 COMMISSIONER SIDNEY LINDEN: Thank you. 23 There -- there's -- is anybody here on behalf of Mr. 24 Hodson? Yes, you are. 25 MS. MEGAN MACKAY: Yes, Commissioner. We
1171 expect to be less than five (5) minutes. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 The Chief Coroner's Office? 4 MR. AL O'MARRA Five (5) or ten (10) 5 minutes, your Honour. 6 COMMISSIONER SIDNEY LINDEN: The 7 municipality? Anybody? 8 MS. JANET CALMONT: No submissions. 9 COMMISSIONER SIDNEY LINDEN: And I know 10 that Commission Counsel intend to speak to it as well. 11 MR. DERRY MILLAR: Yeah, I'll be very 12 brief, maybe ten (10) minutes. And I was advised by the 13 parties who are in contra to the Motion that they've 14 agreed on an order and perhaps I could just give it to 15 you? 16 COMMISSIONER SIDNEY LINDEN: That's 17 great. 18 MR. DERRY MILLAR: That the OPP would go 19 first, sir, followed by the OPPA, followed by Mr. 20 Runciman, Mr. Hodson, Mr. Harris, Mr. Beaubien and the -- 21 on this list it's Ms. Hutton, the Coroner's Office and 22 the Province. 23 COMMISSIONER SIDNEY LINDEN: And the 24 Province last? 25 MR. DERRY MILLAR: Yeah.
1181 COMMISSIONER SIDNEY LINDEN: Of that 2 group? 3 MR. DERRY MILLAR: Last in that group in 4 the list that I was given as a outline. 5 COMMISSIONER SIDNEY LINDEN: Those are 6 the people who are opposed to the Motion? 7 MR. DERRY MILLAR: Yes. 8 COMMISSIONER SIDNEY LINDEN: All right. 9 So let's begin. 10 I think we begin, then, with you, Mr. 11 Horton. 12 13 SUBMISSION BY MR. WILLIAM HORTON: 14 MR. WILLIAM HORTON: Thank you very much, 15 Commissioner. Commissioner, I have circulated to the 16 parties the documents that I will be referring to. I've 17 done that by e-mail, but for the convenience of the 18 Commission, I have also provided a tabbed binder with 19 exactly the same materials which takes the form of a 20 Motion Record. The only difference is, it has that title 21 page to it, but otherwise the documents have all been 22 provided to the parties. 23 COMMISSIONER SIDNEY LINDEN: I have your 24 full binder, Mr. Horton. 25 MR. WILLIAM HORTON: Thank you, sir. And
1191 since my Motion was not publicized, I should just mention 2 the relief that I'm seeking in the Motion; and as you're 3 aware, Commissioner, what we're seeking is three (3) 4 possible levels of disclosure. 5 The first is disclosure of the tapes, and 6 I'm going to call them that, since that's now well known. 7 The second level of disclosure that we're 8 seeking is disclosure of documents that Commission 9 Counsel or any party to this Commission considers to be 10 important enough contextually, that it should be put on 11 the public record now rather than later. 12 The third level of disclosure is a level 13 of disclosure that encompasses essentially all relevant 14 documents, once, of course, a determination has been made 15 by Commission Counsel that there is a relevance to the 16 documents and subject to whatever arrangements Commission 17 Counsel has made with other parties with respect to 18 making documents available. 19 So we have three (3) levels and clearly 20 there's a range of relief that we are seeking. 21 Now I want to make it clear at the outset 22 that nothing in our Motion contemplates breaches of any 23 of the confidentiality undertakings, nothing in our 24 Motion contemplates any violation of the rules of this 25 Commission.
1201 And the Motion itself is brought within 2 the rules of the Commission to seek an Order that is 3 provided for in those rules, where the Commissioner feels 4 that your discretion ought to be exercised in favour of 5 granting the type of relief that I am seeking. 6 And I say that because much of the written 7 opposition to this Motion in effect characterizes the 8 Motion as seeking permission to the parties to breach the 9 Commission's rules, and that's clearly not the case. 10 In addition, I'll just make one sort of 11 compendious reference to a number of the submissions that 12 have been made in reply to my Motion. We completely 13 accept that Public Inquiries should be conducted in a way 14 that's fair to all parties. Obviously you are not going 15 to make any kind of order and we're not going to seek any 16 order that we think will obviously be unfair to any 17 party, or even unobviously be unfair to any party. 18 And similarly, all the statements that are 19 made in My Friend's Submissions about the need for Public 20 Inquiries to be conducted with the maximum degree of 21 openness and transparency. Obviously, that's exactly 22 what our Motion is about, is the concept of openness and 23 transparency and how does it apply in the context of this 24 Inquiry. 25 And much as with this Motion, where the
1211 determination is made but, as much as possible things 2 should be in the open, our Motion is based on exactly the 3 same premise, and that is that as much as possible, 4 things that are already known should be in the public 5 domain, especially if they're important, especially if 6 they're of critical importance. 7 We accept unequivocally that Commission 8 Counsel has acted in complete good faith, is seeking to 9 be fair to all parties, and I just want to be clear about 10 that as well, because a lot of the submissions that have 11 been made imply that -- that we are taking some contrary 12 position to that, and that's simply not so. 13 But the whole point of having parties 14 withstanding at an Inquiry is that not everyone may 15 perceive the process in exactly the same way, and it is 16 important for parties to have an opportunity to come 17 forward and describe the world, describe the process as 18 they see it, and bring forward what they may perceive to 19 be unfairness in the process, so that it can be dealt 20 with. And that's again, exactly what we're doing here 21 today. 22 And I want to specifically refer to the 23 Rule of the Inquiry under which we are proceeding, which 24 is Rule 36, just so that -- I know you're aware of it, 25 but that everyone here is aware of the fact that there's
1221 a specific Rule of the Inquiry that says: 2 "Documents received from a party or any 3 other organization or individual, shall 4 be treated as confidential by the 5 Commission, unless and until they are 6 made part of the public record..." 7 And that's certainly the way, I think, the 8 Rule is intended that we proceed. 9 "...or the Commissioner declares 10 otherwise." 11 So the Rule anticipates both possibilities 12 and it goes on to make some other provisions. 13 Now, I want to say just a few words about 14 Public Inquiries, because, again, a lot of the 15 Submissions that have been made by other parties, have 16 characterized what we are seeking to do as some sort of 17 attempt to have this Inquiry take place in the media. 18 And I think it's very, very important that 19 we confront that issue head on. And the best way I know 20 to do that is to go to the Decision of the Supreme Court 21 of Canada in the West Rae case and all Counsel have been 22 provided with a copy by me and others. It is at Tab 4 of 23 your binder. 24 And the passage that I want to read is 25 from page 24, the paragraph numbered 62, and I'm going to
1231 start about a third of the way down, where it says, and 2 this is Mr. Justice Cory saying: 3 "In times of public questioning..." 4 Do you have where that starts, 5 Commissioner? 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. WILLIAM HORTON: 8 "In times of public questioning, stress 9 and concern, Public Inquiries provide 10 the means for Canadians to be apprised 11 of the conditions pertaining to a 12 worrisome community problem and to be a 13 part of the recommendations that are 14 aimed at resolving the problem. 15 Both the status and high public respect 16 for the Commissioner and the open and 17 public nature of the hearing helped to 18 restore public confidence. Not only in 19 the institution or situation 20 investigated but also in the process of 21 government as a whole. 22 They are excellent means of informing 23 and educating -- informing and 24 educating concerned members of the 25 public.
1241 Paragraph 63. This important 2 characteristic was commented upon by 3 Ontario Supreme Court Justice S. Grange 4 following his Inquiry into infant 5 deaths at the Toronto Hospital for Sick 6 Children." 7 And this next paragraph is really the key. 8 "Mr. Justice Grange in a very -- in a 9 manner that's very characteristic of 10 some of his extra judicial 11 statements..." 12 In other words he makes some important 13 points in a slightly light hearted way: 14 "...said this. 15 I remember once thinking 16 egotistically that all the evidence, 17 all the antics, had only one (1) aim. 18 To convince the Commissioner who, after 19 all, eventually wrote the report. But 20 I soon discovered my error. They are 21 not just inquiries, they are public 22 inquiries. I realized that there was 23 another purpose to the inquiry just as 24 important as one man's solution to the 25 mystery and that was to inform the
1251 public. Merely presenting the evidence 2 in public..." 3 And I would repeat that. 4 "... merely presenting the evidence in 5 public, evidence which had hitherto 6 been only given in private served that 7 purpose. The public has a special 8 interest, a right to know and a right 9 to form its opinion as it goes along." 10 Now it would be very easy to take that 11 very positive statement about the purpose of public 12 inquiries and turn it into a negative by substituting the 13 word 'media' for the word 'public' wherever you see it in 14 that paragraph. 15 Merely presenting the evidence in the 16 media, evidence which had hitherto only been given in 17 private served that purpose. The media has a special 18 interest, a right to know and a right to form its opinion 19 as it goes along. 20 With respect, the media and the public, in 21 terms of public inquiries, are synonymous. It is through 22 the media that the public becomes informed and is able to 23 form its opinion as it goes along. And it is not a 24 criticism of the motion that we are bringing. It's not a 25 legitimate criticism of the motion that we're bringing to
1261 suggest that all we're trying to do is get information to 2 the media. 3 COMMISSIONER SIDNEY LINDEN: Mr. Horton, 4 we've already indicated that the information will be 5 introduced in this Inquiry in public for everybody to see 6 and everybody to hear. So the only question is when, not 7 if. This just seems to speak to public as opposed to 8 private. 9 MR. WILLIAM HORTON: Well, absolutely. 10 COMMISSIONER SIDNEY LINDEN: It doesn't 11 say anything about timing. 12 MR. WILLIAM HORTON: I understand that 13 and I'm going to get to the timing as well. Except it 14 does say something about timing in that it says that the 15 public has a right to know and form its opinion as it 16 goes along. 17 COMMISSIONER SIDNEY LINDEN: I assume 18 that the information that's in question will be 19 introduced in this Hearing while it is proceeding; that's 20 the object of a public inquiry. Introduce evidence in 21 public while it is proceeding. 22 MR. WILLIAM HORTON: Well, the -- the 23 circumstances surrounding this Inquiry, Commissioner, are 24 unusual in -- as is -- are of the circumstances 25 surrounding every inquiry.
1271 In this particular case, the evidence, the 2 events are almost a decade old. They have been -- the 3 subject matter of this Inquiry has been canvassed in 4 civil litigation, in criminal litigation, regulatory 5 investigation, there's been requests from the media. 6 And -- so therefore I'm suggesting that we 7 don't have to proceed, we don't need to proceed as if 8 these events are being unearthed for the first time as we 9 proceed through the Inquiry. That this is -- these are 10 events which have been written about and they've been 11 discussed in the public forum and to the extent that the 12 documentary record is not complete, it will assist the 13 Inquiry and I'm going to suggest in some specific ways 14 why I think so, that all of the documentary context is 15 complete as far as it can be, at least to the extent of 16 important documents. 17 So that each witness whose -- whose 18 evidence is heard can -- can be examined in the context 19 of all of those facts that are established through the 20 documents. 21 And, in fact, there's a Commission rule 22 that covers something like this, and it's Rule 14, which 23 provides that: 24 "Subject to the Order in Council, the 25 Commission may rely on any transcripts
1281 or record of pre-trial, trial, or 2 appeal proceedings -- pre-trial, trial, 3 or appeal proceedings before any Court 4 in relation to the proceedings and 5 prosecutions and such other related 6 material as the Commissions considers 7 relevant to its duties." 8 And in my submission, there -- there is an 9 option that's open to you that goes beyond the option of 10 releasing one (1) fact at a time to the public and one 11 (1) exhibit at a time to the public, especially if, as I 12 hope to develop in a moment, there is a risk of prejudice 13 to witnesses and to parties if that context is not fully 14 -- is not developed as fully as it should be based on the 15 known facts and the known documents. 16 And that's not to suggest -- that's not to 17 suggest that the work of the Commission is redundant. On 18 the contrary, in my submission what it will permit is for 19 the Commission to focus on that which is not known, on 20 that which is contentious, on that which has not come out 21 before. 22 I recognize in my submissions that it has 23 not been a common practice of Inquiries to release 24 documents in -- in -- in general. But if you look at the 25 report of the Walkerton Inquiry which is also in your
1291 binder, at Chapter 14 of that Inquiry. In your binder 2 it's at Tab -- Tab 5, Page 491. 3 The Commissioner in that Inquiry in his 4 report talks about public access and he says, of course 5 all the hearings were public. There was -- there were 6 broadcasts and so on. He talks about the information 7 that was made available on the website, transcripts of 8 hearings, witnesses exhibits and so on and then in the 9 last paragraph he says: 10 "But even the internet has its limits 11 and it was not feasible to post all of 12 the materials generated for our Inquiry 13 on our website. Instead, large numbers 14 of documents were made available for 15 public review at the Inquiry Offices in 16 Walkerton and Toronto. 17 The documents included all the exhibits 18 filed at the hearings, all public 19 submissions and replies from the 20 Inquiry and most of the documents 21 collected and scanned into our 22 database." 23 COMMISSIONER SIDNEY LINDEN: I think that 24 latter group of documents was produced after the Inquiry. 25 MR. WILLIAM HORTON: And I say -- and I
1301 mentioned that in my submissions, Commissioner, but from 2 a fairness point of view, if you want to look at it from 3 a fairness point of view, where is the fairness in 4 relating -- if you're going to describe this as a 5 document dump which is what My -- My Friends have 6 described it as, where is the fairness in doing a 7 document dump after the hearing is over? 8 Why not release the -- all the -- the 9 historical record which is what we have here is a 10 historical record. Why not make that available so that 11 all of the parties are free to deal with it and not 12 constrained even in terms of how they cross-examine 13 witnesses, are free to discuss it with their 14 constituencies and -- and -- and understand the relevance 15 of it? 16 I just point out that as well-meaning and 17 as well-staffed as a Commission of Inquiry may be, the 18 public has much greater resources even than any 19 Commission of Inquiry. 20 And when we talk about the public and we 21 just talk about the public in terms of the media, we're 22 really selling the public short. Because the public 23 consists of a lot of other sectors. We've got -- we've 24 got academics, we've got journalists, yes, we've got 25 people who are involved in the governance of the Province
1311 and -- and the First Nations. We've got law students, 2 we've got historians. 3 We've got a lot of people who have an 4 interest in this material and the fact that the material 5 is made available to them sooner rather than later can 6 only assist because it will, perhaps, bring out documents 7 from the twenty thousand (20,000) documents the 8 Commission has, will perhaps bring out meanings in those 9 documents, that with the best will in the world may 10 escape the -- any group of people with limited resources. 11 COMMISSIONER SIDNEY LINDEN: Well, is it 12 your suggestion that all of the documents on the Website 13 should be released publicly now? 14 MR. WILLIAM HORTON: No, and not now, but 15 what I do say, and I say this with a great deal of 16 consideration, we have many civil cases, for example, 17 that have rooms full of documents. But when we go to the 18 beginning of a proceeding, so that everything is in the 19 same context, Counsel agree on what are the important 20 documents. 21 And there may be a set of twenty (20) or 22 thirty (30) volumes of documents, and it's not to exclude 23 anybody, anybody who thinks that a document is important 24 can have a document go into that brief, and they're 25 called compendiums, and when the practice was introduced
1321 in civil cases, Counsel screamed, because they didn't 2 want to have -- want to be restricted in terms of how 3 they argued their case and what documents they put to 4 witnesses and so on. 5 But it's now recognized as a very 6 important tool to efficiency and fairness in the process, 7 that everybody gets to identify the documents that they 8 feel are important and they get put into one (1) set of 9 documents, and beyond that, if there are documents that 10 are determined by Counsel for the Commission to be 11 relevant, they could also be made available on the same 12 basis, the public can handle it, is my point. The public 13 can handle it. 14 And it's not just a question of -- oh, and 15 by the way, if somebody says, well I don't know what's an 16 important document. Well, I must say, I find -- I can 17 understand that at a -- at some sort of a theoretical 18 level or a hypothetical level, but you know, Mr. Sandler 19 got up and told us, he concedes that this is an important 20 document. 21 I don't think there's much difficulty in 22 identifying documents that are important documents, and 23 it's not something that people argue about. They don't 24 need to argue about it. Anybody says it's an important 25 document, it gets in the record. And then we all know
1331 what the total picture looks like. 2 The public, in particular, knows what the 3 total picture looks like, and they can assess specific 4 lines of cross-examination as to whether they are fair or 5 unfair lines of cross-examination. And I do want to give 6 you some examples of that, specifically. 7 Now, in my written submissions, I've made 8 some specific submissions as to why I think the tapes in 9 particular are an excellent example of what I'm talking 10 about, but I will skirt that for the moment and I'll just 11 say, let's talk about fairness to witnesses, which is the 12 reason why the public, that we will all agree has a 13 presumptive right to know, should be -- I don't want to 14 be too rhetorical about this -- should not be told about 15 this document until sometime in the future, what are the 16 arguments against that? 17 One of the arguments against that is, well 18 it's all going to be done in the proper way. It's -- 19 this document will come into evidence at a time when 20 someone can speak to it and explain it and qualify it. 21 Well, that's a very questionable presumption. 22 There is no guarantee that a document is 23 not going to come into evidence in this Hearing weeks or 24 months before any particular witness is examined. It 25 could be the person who has recorded the tape,
1341 physically, and then there may be weeks before a 2 particular participant in the conversation is entitled to 3 comment. 4 So, that is in itself a questionable 5 premise, and in fact, what it creates and what it has 6 already created, is some of what I think Mr. Grange had 7 in mind when he talked about antics; because what you 8 have, is you have Counsel looking for ways to bring these 9 documents in before they are properly qualified as 10 evidence. 11 And you, yourself, found it necessary to 12 comment during the examination of Bonnie Bressette just 13 as a caution to the public, You will hear things that are 14 not yet established in evidence and that's in a -- quite 15 a proper caution, if I -- if I may say so with respect -- 16 a very proper caution, but it's naive to think that that 17 only happens accidentally. 18 It sometimes happens because Counsel want 19 to brings things out before a qualified witness is there 20 to comment on the document because they want it discussed 21 in the public -- in the media, and the best example I can 22 think of that, and I will just limit myself to a couple 23 of examples, is Exhibit P-4 -- P-42A. 24 Exhibit P-42A, an exhibit at this Inquiry, 25 is a photograph of a man and it was put to the witness,
1351 Clifford George, who didn't take the picture, he wasn't 2 anywhere in the vicinity when the picture was taken, he 3 didn't know the person in the picture and there was no 4 reason to believe, other than the fact that counsel said 5 to him, This looks like a picture of a man carrying a 6 gun; there's no other evidence to suggest that this is a 7 picture of a man carrying a gun. 8 Yet without any evidentiary basis for this 9 document, without any evidentiary support for the 10 characterization counsel put on it, it's displayed at a 11 public hearing, it's marked as an exhibit and I say that 12 there's no real difference, practically, between that and 13 counsel going out of the hearing and saying to the press, 14 here's a picture of a man carrying a gun, because there's 15 no evidentiary basis for it. There's -- either the fact 16 of the picture or of the characterization that it's a 17 picture of a man carrying a gun and yet very prejudicial 18 and done for a reason. 19 Another example is all of the statements 20 that were put to Mr. George about the presence of 21 firearms at Camp Ipperwash. These were statements, and 22 because I know you want to be short on time, I -- I won't 23 go to the exact documents, but these are statements that 24 were taken from witnesses who were not called when they 25 were referred to publicly.
1361 The statements themselves were taken from 2 these witnesses after Kenneth Deane was convicted of 3 criminal negligence for the purpose of his sentencing. 4 There was an -- there had been an unsuccessful attempt to 5 have those documents admitted into evidence in the Court 6 of Appeal as fresh evidence, which was rejected. 7 They're resurrected and put to a witness 8 who can offer really no evidence, with respect to them 9 under the -- under the theory that this is the use of the 10 rule in Brown and Dunn. 11 Well, the use in Brown and Dunn talks 12 about prior inconsistent statements. It talks about 13 something that might contradict the witness in terms of 14 his evidence as a witness. The fact that some other 15 witness may say something different is neither here nor 16 there. 17 It's a technical objection. It's not the 18 kind of objection that succeeds at an inquiry, 19 Commissioner, and I'm not complaining about it from that 20 perspective, because this is what goes on at inquiries. 21 But what I am saying, is that -- all right 22 -- is -- is that going to be the model for how counsel 23 put on the public record, documents that they would like 24 to have introduced sooner rather than later and I'm 25 saying it's a more orderly way to say to Mr. Roland, you
1371 want a picture of a man with a gun to surface publicly, 2 you don't have to put it to a witness who doesn't know 3 anything about that. Let's just put it in a brief of all 4 the documents that you think are important. And let's 5 let everybody do that and then they're out there. And -- 6 COMMISSIONER SIDNEY LINDEN: Let 7 everybody do what. What would be your suggestion? If 8 you put them -- 9 MR. WILLIAM HORTON: Well -- 10 COMMISSIONER SIDNEY LINDEN: -- in a 11 document, do you make them available to the public at 12 that point? 13 MR. WILLIAM HORTON: I -- I think -- I'm 14 suggesting an orderly process, Commissioner, supervised 15 by Commission Counsel, whereby -- you know -- we -- we 16 know that there are documents that important. 17 Frankly, there are lots of important 18 documents in this case that are already in the public 19 domain, but they are subject to the Confidentiality 20 Undertaking. The Confidentiality Undertaking covers 21 every single document that we've received. It -- it's 22 way too broad. 23 So I'm saying, let's have a process where 24 rather than trying to find a way to put it to a witness 25 whose sort of not -- not really able to comment on it so
1381 that it gets in the public domain. Let's have everybody 2 say these are the documents we think are important and it 3 can be an ongoing process. 4 Certainly, if we did anything like that, 5 these tapes would be in that -- would be in that 6 category. I don't think anybody would question that. 7 And I say that would be more orderly, not less orderly to 8 do it that way. And you can even consider the fairness 9 of this from a subject matter point of view, 10 Commissioner, and that is this. 11 We can debate whether or not the presence 12 of firearms on Camp Ipperwash was relevant factor in 13 terms of the events that took place. Given the pattern 14 of -- of community activity in this area which did 15 involve hunting and so on and so forth. So there can be 16 an issue about that. 17 But if one (1) party wants to make the 18 presence of firearms at Camp Ipperwash an issue and 19 suggest that that is a relevant consideration for what 20 happened on the evening of September 6th, then I say, 21 before a single question is put to a witness that 22 suggests that that's a relevant factor, all of the 23 documents that bear on the use -- the -- the presence of 24 firearms in Camp Ipperwash, the concern that anyone had 25 about the presence of firearms in Camp Ipperwash, should
1391 be made public. 2 Let's have it on a subject matter basis. 3 So that we don't have to have witnesses that are being 4 cross-examined on an issue without the public being in a 5 position to assess on that issue whether or not it's -- 6 it's a fair issue to be challenging the witness on. 7 I think that again, just in terms of 8 supporting that overall submission, I've -- I've made 9 some comments that for the moment I will leave for 10 another time. 11 The -- the other point that I want to make 12 is with respect to Part 2 of this Inquiry which is very 13 important in terms of the going forward. 14 We don't always want to be looking 15 backward. We want to be looking forward and certainly my 16 clients, Chiefs of Ontario, are very interested in that. 17 And -- and hope to be very active in that in -- in a 18 positive way. 19 And you, Commissioner, have emphasized the 20 importance of healing. And all -- and -- and clearly 21 that's a key ingredient in both Part 1 and Part 2. But 22 again I say that with respect to Part 2, we cannot start 23 Part 2 in a meaningful way unless the -- the key core 24 facts that are already known are on the table. 25 Of course there -- it's open to everyone
1401 to challenge that, it's -- it's open -- that's what -- 2 that's what Part 1 is all about. But to have meetings go 3 on to talk about how we're going to forward in the future 4 when important, admittedly important documents which Mr. 5 Sandler are now going to rely on Mr. Sandler's statement, 6 these are important documents. How will Part 2 proceed 7 to consider recommendations for the future when important 8 documents are not yet in the public domain? 9 So for that reason as well as the overall 10 concerns that I have about fairness to witnesses, 11 efficiency of the process, let's move this along a little 12 bit faster by not ha -- not re -- not recreating a record 13 that's already been created in other proceedings to the 14 extent possible, and -- and focus on what is really 15 relevant, which I know Commission counsel is trying to 16 do. 17 But it will also assist once we have a 18 full record of all the important documents in the public 19 domain in terms of everyone understanding what is really 20 important. 21 And if someone gets on to a topic that is 22 not really important, we'd like to have a little bit more 23 flexibility in terms of using documents to say, that's 24 not relevant. Look at this and this and this. And based 25 on -- based on documents that are in a public record.
1411 So I come back to the basic point. 2 Openness and transparency and the idea that things should 3 be disclosed unless there's a very compelling reason and 4 we shouldn't let the exceptions drive the rule, in terms 5 of disclosure. 6 Excuse me just a moment. 7 8 (BRIEF PAUSE) 9 10 MR. WILLIAM HORTON: Commissioner, if 11 given an opportunity, and if an in-camera session is felt 12 to be necessary, I -- I think that most of these points 13 are driven home with respect to the tapes specifically in 14 my written submissions. I did feel I needed to be a 15 little bit more detailed in my oral submissions on the 16 public portion, because not everyone had written -- had 17 read my written submissions. So I thank you for that. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much, Mr. Horton. 20 We've got an order for people who are 21 opposed but what about -- I suppose you'd be -- Mr. 22 Klippenstein should be next because you're principal 23 mover as well. 24 MR. MURRAY KLIPPENSTEIN: Yes, sir. 25 Thank you, Commissioner. I will be making part of our
1421 submissions and then, with your permission, Mr. Orkin 2 will be -- will be -- 3 COMMISSIONER SIDNEY LINDEN: Can I just 4 ask you not to be repetitive if possible. I'd ask you to 5 please not say the same things as Mr. Horton has said. 6 7 SUBMISSION BY MR. MURRAY KLIPPENSTEIN: 8 MR. MURRAY KLIPPENSTEIN: I wouldn't even 9 try, because I couldn't say them as well, so... 10 I would like to suggest that there is a 11 number of reasons why these tapes should be released to 12 the public right now, or as soon as possible. And I 13 will, and we will limit our submissions to the issue of 14 these tapes. 15 Much of what Mr. Horton has said was a 16 good suggestion and in particular, the comparison to a 17 compendium in a trial, which I think is an 18 extraordinarily good suggestion. 19 But the family and the estate are 20 focussing on the tapes because they believe we don't have 21 to solve all the problems at once, or all the issues or 22 all the concerns, but that one (1) thing is clear as far 23 as they're concerned is that these tapes need to be 24 released to the public. 25 One (1) of the reasons is that, as a
1431 Public Inquiry, the public is a spectator to this process 2 but is also much more and of the quote from Mr. Justice 3 Grange that Mr. Horton referred to, I would emphasise the 4 last sentence which is not the only important sentence, 5 but it says: 6 "The public has a special interest, a 7 right to know, and a right to form its 8 opinion as it goes along." 9 Now I would like to just expand on that a 10 little bit. The matters in this Inquiry are complicated, 11 are complex. They didn't all happen in one (1) location 12 and they didn't just involve a few people. 13 And if we are inquiring, yourself, 14 Commissioner, and us collectively, are inquiring into 15 things that the terms of reference asked us to inquire 16 into, this is a difficult and complicated matter. 17 We do not pretend that the answers, if 18 there are any, are simple. But it's a mistake, 19 therefore, to think that a simple sequential or 20 chronological line of presentation will be able to 21 adequately present all those complex interweavings in a 22 way that any of us can understand, and particularly the 23 public. 24 And in my submission, when Mr. Justice 25 Grange said that the public has a right to form its
1441 opinion as it goes along, that means a lot. That's a 2 process of listening to the evidence, understanding how 3 some parties propose that it fits with other evidence, 4 how some parties propose that it will fit with evidence 5 to come, how other things are happening, at the same 6 time, perhaps. 7 And therefore, because of that complexity, 8 the public needs to know some of the other information 9 that might yet come forward through a witness in the 10 future. 11 Now, for us in this room and for the 12 Commissioner and -- us who have the materials beforehand, 13 we can debate it amongst ourselves, we can explore the 14 connections, but the public can't, under the present 15 rules and situation. And so certain key pieces of 16 evidence, or facts, cannot be in the consideration of the 17 public. 18 COMMISSIONER SIDNEY LINDEN: But isn't it 19 the function of Commission Counsel, Mr. Klippenstein, to 20 tell the story in a way that is intelligible and logical 21 for the public to understand? Isn't that the function of 22 Commission Counsel? 23 MR. MURRAY KLIPPENSTEIN: That's true, 24 but it's not entirely the Commission -- Commission 25 Counsel's job, or the rest of us wouldn't need to be
1451 here. 2 COMMISSIONER SIDNEY LINDEN: Well, you 3 obviously play an important part, but it's Commission 4 Counsel that determines what evidence to call and in what 5 order to call it, -- 6 MR. MURRAY KLIPPENSTEIN: Yes. 7 COMMISSIONER SIDNEY LINDEN: -- that's 8 the normal way Commissions have Inquiry procedure, 9 assuming that everything is coming out, assuming that one 10 (1), before this day is over, before this Inquiry is 11 over, all of this evidence will be on the public record. 12 MR. MURRAY KLIPPENSTEIN: Well, I will be 13 frank and -- and blunt, Commission, and I'm not being 14 critical of anybody or Commission staff, or Commission 15 Counsel, is that the family believes that the story or 16 evidence as it's coming out now, cannot adequately 17 describe, to the public, what's really important and what 18 really went on. 19 And that's not a criticism of Commission 20 Counsel, but there are -- there are pieces of evidence, 21 and the tapes are one (1), which are so important about 22 things that were happening outside of the Park, that the 23 family believes, and not everyone may believe this, but 24 that the family believes, are one (1) of the central 25 explanatory factors of what happened in the death of
1461 Dudley George. 2 COMMISSIONER SIDNEY LINDEN: No one will 3 argue that at the moment. I mean, at the moment we don't 4 need to argue that because we understand it's important 5 and it will be released. You can't put everything out 6 all at once, it has to be done in some logical, 7 reasonable fashion. Somebody has to make the 8 determination about how the Commission is going to 9 proceed. 10 MR. MURRAY KLIPPENSTEIN: Yes, sir. 11 COMMISSIONER SIDNEY LINDEN: If this was, 12 well I'll leave it at that. Somebody has to and I think 13 it's the Commission Counsel. Everybody in this room, all 14 the parties who all play an important part, have a 15 particular point of view, everybody. 16 The only person who doesn't, shouldn't, is 17 the Commission Counsel. Commission Counsel's function is 18 to present all of the evidence that's relevant, in an 19 orderly, logical fashion, so everybody can understand it. 20 That's its function. 21 MR. MURRAY KLIPPENSTEIN: That -- that 22 may be that you put your finger on it, because there is 23 some evidence that's relevant to what was described by 24 the witnesses so far this week, that isn't being put out, 25 that isn't available to the public. And the solution is
1471 not this scenario of everything having to be dumped all 2 at once, because as Mr. Horton said, the concept of a -- 3 compendium perhaps, in theory shouldn't work at all, but 4 in fact it works very well. Where essentially, all the 5 parties can say, we think this document or these ten 6 (10), or these thirty (30) documents are key, can you put 7 them in the Compendium Brief? 8 And it can be a lot of work and, indeed, 9 the family, and we did it in the trial, and it worked. 10 And all the parties who are contending contentiously 11 about fundamental issues, when they are told, put your 12 key documents forward, they can do it. And it is a 13 management proposition and you have a certain number of 14 volumes of important documents. 15 And as I understand many judges, and I've 16 never been a judge and perhaps never will be, but they 17 often say, in the end it comes down to a few documents, 18 and we all know that. And several parties will have 19 different ideas about which those are. But if we can put 20 those out now and that's manageable, and we think the 21 tapes are one (1) of those, then the discussion can be 22 productive. 23 And there will be discussion and people 24 will say that is meaningless, or that is very important 25 or that is key or -- you know what I think will happen
1481 with these tapes is, everybody will benefit because 2 everybody will find something in them. But the whole 3 discussion of all the key issues will be advanced. 4 COMMISSIONER SIDNEY LINDEN: So, there's 5 no determination made, it's just what everybody thinks is 6 important or significant all goes into it. 7 MR. MURRAY KLIPPENSTEIN: Yes, and -- and 8 the Commission Counsel can play a key role there, as kind 9 of a reasonableness gatekeeper and if somebody says I 10 want -- if I say the family wants these two hundred 11 thousand (200,000) pages on the record, that's not 12 reasonable. 13 But if -- if you can say -- if the 14 Commission Counsel can say, What do you got and I've got 15 -- I've got fifty (50) documents, well, in this day and 16 age it's not a big deal. If everybody says, Here's my 17 key documents, let's put them all in the public. And my 18 suggestion is that that will be tremendously beneficial 19 to the work of the public inquiry -- 20 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 21 MR. MURRAY KLIPPENSTEIN: -- because 22 there will be a process of ongoing engagement and debate, 23 which will happen publicly, which will happen here, which 24 will happen in everybody's minds, and these are very big 25 issues. These are not -- this is not about a traffic
1491 accident on the corner of -- of Main and Queen -- 2 important as that might be to the participants. 3 These are deep issues -- big issues. 4 Somebody lost their life and these are historical issues. 5 And there should be not a debate that follows a 6 particular narrow channel week by week, but it should be 7 able to have a look in public at all the documents that 8 the Parties responsibly believe are the key documents. 9 And -- and that will be productive, would 10 be my submission. And it's done in trials all the time. 11 It would be ironic if it could be handled in -- in 12 adversarial proceedings but not in this Proceeding. 13 COMMISSIONER SIDNEY LINDEN: But the 14 documents aren't released in a civil proceeding until 15 they're introduced in Court. 16 MR. MURRAY KLIPPENSTEIN: No, but the -- 17 what the -- 18 COMMISSIONER SIDNEY LINDEN: Which is 19 basically what we're doing here. 20 MR. MURRAY KLIPPENSTEIN: Yes, but the 21 difference is, as everyone knows, the public is not a 22 party to a public inquiry, but in my submission the 23 public is somewhat of a party to a public inquiry. And 24 the -- the documents in a compendium, as in an opening 25 address in a trial, are not put forward to -- to the
1501 benefit of the public in the courtroom, but it's an 2 organizing process. 3 And certainly I find it useful when I'm 4 considering complex issues to have various key points to 5 consider at once and not to have a sequence of one (1) 6 important point after the other. So that I think that 7 when you adjust some of the processes in a trial for a 8 public inquiry, the -- the workable practical benefit can 9 be applied. 10 COMMISSIONER SIDNEY LINDEN: The question 11 is, who should be responsible for that organizing process 12 and, in my view, historically -- I shouldn't say my view 13 -- historically, it's been Commission Counsel that is 14 responsible -- 15 MR. MURRAY KLIPPENSTEIN: Yes. 16 COMMISSIONER SIDNEY LINDEN: -- for doing 17 that and putting a case together and putting it out there 18 and what you're suggesting is that it should be all 19 parts. That's really -- 20 MR. MURRAY KLIPPENSTEIN: No, it's a two 21 (2) part process and I think that's beneficial. The load 22 isn't entirely on the Commission Counsel's shoulders. 23 The Parties come forward and -- and the Parties do most 24 of the work. They say these -- these thirty (30) 25 documents are the ones we think are important and let's
1511 put them in the compendium. And the Commission Counsel 2 may have thirty (30) -- or fifty (50) documents times 3 thirty (30) parties, which is what, fifteen hundred 4 (1,500) documents -- I hope my math is correct -- which 5 is not a big deal with respect. 6 COMMISSIONER SIDNEY LINDEN: I hear you. 7 MR. MURRAY KLIPPENSTEIN: And there will 8 be debate but there will be large leap forward in 9 fairness because, as I said, I -- I hate to say it, but 10 the family of Dudley George feels that in -- to some 11 extent, the Commission process risks looking like a drama 12 presented on a stage when only one-half (1/2) the 13 curtains have been pulled. 14 COMMISSIONER SIDNEY LINDEN: You've only 15 started, Mr. Klippenstein. Please be fair. 16 MR. MURRAY KLIPPENSTEIN: I -- I -- 17 COMMISSIONER SIDNEY LINDEN: We're only 18 at the front end. There are many, many days; many, many 19 witnesses -- 20 MR. MURRAY KLIPPENSTEIN: Yeah. 21 COMMISSIONER SIDNEY LINDEN: -- many 22 stories to tell. You can't tell it all in the first 23 week. 24 MR. MURRAY KLIPPENSTEIN: I'm certainly 25 not suggesting that, but the process I'm suggesting is a
1521 limited release of certain key documents. And if I can 2 return to my analogy of a theatre stage, the whole story 3 isn't told at once, but the public can see the -- the -- 4 the audience can see the whole stage and at least what 5 are some of the -- what -- what the various players are 6 saying. 7 COMMISSIONER SIDNEY LINDEN: You have to 8 wait for the third act to see the ending. 9 MR. MURRAY KLIPPENSTEIN: But my point 10 is, we are only seeing one half (1/2) the stage. That's 11 my concern. And it would be -- it would be like a hockey 12 game televised on TV, we don't have those in this -- this 13 season any more -- 14 COMMISSIONER SIDNEY LINDEN: Something 15 we'd all like to see. 16 MR. MURRAY KLIPPENSTEIN: -- where the -- 17 the broadcast company said we're going to digitally 18 remove all the players from one (1) team and you can 19 watch, you know, the hockey game with half the team. 20 It would just not make sense and the 21 family says, respectfully, that even from the beginning, 22 especially from the beginning, having the story told when 23 half of the picture, and that includes the picture and 24 the tapes, is not at least being considered as background 25 and context is a fundamental problem for the Inquiry for
1531 the public. 2 And certainly with respect, and I have to 3 say this, the family believes it's unfair to the public - 4 - to the family. 5 The family as a party in its cross- 6 examination of the witnesses is struggling with how to 7 say and how to contextualize and how to put to the 8 witnesses fairly the questions that they think relate to 9 their experience but aren't immediately apparent in the 10 documents that have so forth been put forward. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 Thank you very much. 13 MR. MURRAY KLIPPENSTEIN: I -- well, 14 you're welcome. I'm not done. 15 COMMISSIONER SIDNEY LINDEN: Oh, okay. I 16 thought you were. Excuse me. 17 MR. MURRAY KLIPPENSTEIN: I will -- I 18 will try and wrap up, Commissioner, and Mr. Orkin will 19 have a few comments in conclusion and -- and further 20 explanation perhaps. 21 22 (BRIEF PAUSE) 23 24 MR. MURRAY KLIPPENSTEIN: Let me -- let 25 me say again, as -- as I've tried to say so far, that the
1541 family believes that there is -- that the process of the 2 public understanding what's going on, is fundamentally 3 truncated if the public isn't able to consider, as part 4 of the context, the issues and information raised by the 5 tapes. 6 And secondly, the family feels that the 7 Commission process is significantly less fair to the 8 family than it really should be. Again because the 9 information and issues in context on the tapes make it 10 very difficult for the family to present its 11 understanding and explanation to the extent it's 12 developed that over these years of what happened in the 13 death of Dudley George and what it means. 14 Not only for the family, but for First 15 Nations and for the -- for Ontario and for Canada. 16 There's a -- there's a certain -- the 17 third issue I want to touch on before I ask Mr. Orkin to 18 come up is that the tapes for the family represent for 19 them, perhaps more so than for anyone else in the 20 Inquiry, a certain bad memory of what First Nations 21 people experience has been again and again in the 22 processes of justice that non-native society puts 23 forwards and offers to the first people in this country. 24 And the tapes, the family believes, should 25 have been disclosed to the family more than a year. And
1551 the family believes that had they been disclosed as the 2 family believes they were legally supposed to be 3 disclosed to the family in the litigation, the family's 4 course of conduct with respect to the litigation and with 5 respect to this Inquiry might have been different. 6 And that litigation process is an orderly 7 process set up according to the rules of non-native 8 justice, and the family feels burned by the fact that 9 these tapes were not disclosed earlier. And to have the 10 tapes withheld from the public and from public discussion 11 the way the family wishes, for some more time has some 12 very bad memories for the family and for First Nations 13 people. 14 And we've heard First Nations people say 15 the -- the courts didn't help us. And we are hoping that 16 Commission might take that into consideration as -- as a 17 factor. 18 COMMISSIONER SIDNEY LINDEN: And you're 19 saying, Mr. Klippenstein, that my saying to you and to 20 the family, that this tape will be introduced in this 21 Hearing as the Hearing progresses is not sufficient? 22 MR. MURRAY KLIPPENSTEIN: No. We 23 understand that and we appreciate that and we are 24 grateful for it. 25 COMMISSIONER SIDNEY LINDEN: That's fine.
1561 MR. MURRAY KLIPPENSTEIN: But we -- we 2 think that -- 3 COMMISSIONER SIDNEY LINDEN: The fact 4 that it wasn't in previous litigation has nothing to do 5 with this Inquiry. You -- 6 MR. MURRAY KLIPPENSTEIN: I understand 7 that. What it -- the relevance of that is, that it's 8 part of my previous point that the family is concerned 9 that the story isn't really being told in its fullness 10 with these tapes not being -- not being in the Public 11 Hearing. 12 COMMISSIONER SIDNEY LINDEN: I understand 13 your earlier point, but this was a third point. That's 14 fine. 15 MR. MURRAY KLIPPENSTEIN: Now those are 16 my submissions and Mr. Orkin I believe will have -- 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. 19 MR. MURRAY KLIPPENSTEIN: -- some in -- 20 something to add in conclusion. 21 COMMISSIONER SIDNEY LINDEN: Mr. 22 Orkin...? 23 24 (BRIEF PAUSE) 25
1571 SUBMISSION BY MR. ANDREW ORKIN: 2 MR. ANDREW ORKIN: Commissioner, thank 3 you. You'll forgive if I go a little more carefully than 4 I might otherwise had done had we been proceeding all in- 5 camera. This Commission, if you like, is something of an 6 Aboriginal justice inquiry broadly writ. 7 It did involve a police shooting of a 8 demonstrator, that's not necessarily an Aboriginal 9 phenomenon. But as the Inquiry proceeds we are reminded 10 more and more often of the very strong Aboriginal 11 particularities of this context. 12 And one (1) of those particularities is a 13 historical detail which doesn't arise out of the tapes, 14 but it arises -- out of the Federal Government arriving a 15 little belatedly at the burial ground. The key piece of 16 information. 17 And establishing, just a few days late, 18 after a man had been shot and died, that in fact a lot of 19 what the Natives in the Park were saying was the truth. 20 In the nine (9) years that have passed since that event, 21 if one had to come up with a gen -- with a -- with an 22 overall characterization of those nine (9) years. 23 In addition to the beatings that were 24 sustained on September the 6th and in addition to the 25 bullets that were fired hitting three (3) Aboriginal
1581 protesters and killing one (1) of them. If one had to 2 characterize the nine (9) years that followed starting in 3 the early hours of the morning of September the 7th, one 4 could fairly state this was a context -- a nine (9) year 5 context of blame by institutions of the Canadian states 6 and the Ontario province of Aboriginal peoples for having 7 been in the wrong place. 8 For having behaved illegally in that 9 place. For having behaved violently in that place and 10 for having fired upon the police. 11 That truth is not just reverberated around 12 Lambton and Bosanquet County. It has reverberated in 13 Ontario and in the rest of Canada and indeed has been 14 taken on behalf of the Government of Ontario and at its 15 instance to the United Nations and never withdrawn. 16 We have a public record in this context 17 that by virtue of the legitimacy and the capacity and the 18 power and the resources of the Government of Ontario, of 19 the Ontario Provincial Police and all of their agencies 20 and of the Government of Canada, that have ensured that 21 that has been the dominant record. 22 In the context of this Inquiry itself, 23 we've had Aboriginal witnesses starting to be questioned 24 in a manner that seems to either reproduce or perpetuate 25 that nine (9) year context. We do, on the other hand now
1591 for the first time, by virtue of this remarkable long 2 thoughtful forum, have a potential that that will change. 3 But what I would like to emphasize without 4 contradicting the very valuable discussion of -- of 5 systemic approach as to how this Commission might be run 6 and the role of Counsel, is to drill in on and focus on - 7 - on these tapes, as the single piece of evidence, that 8 for a number of compelling reasons, need now to be 9 released without further delay. 10 If ever there was a context in which 11 information already having once arrived too late to save 12 a life, we have a context in which there's a public 13 record now that is, for the reasons I've outlined, 14 profoundly imbalanced. 15 We've had numerous Aboriginal Inquiries in 16 Canada, Aboriginal Justice Inquiries and Royal 17 Commissions into Aboriginal peoples, because the results 18 of the injustices, the systemic injustices, tend to blow 19 up in very unpleasant ways. 20 All of those Inquiries have emphasized 21 that it's essential that Canadians and their governments 22 and their institutions and the public at large, do a 23 better job of listening to the signals that Aboriginal 24 people send us about the processes that we serve up to 25 them.
1601 The signal that is now being sent very, 2 very carefully in this context, is, Please listen to us, 3 this piece of information is profoundly important. And 4 after nine (9) years of a withering assault, of blame and 5 more blame and more blame, it's fundamentally important 6 that that record be balanced. 7 And we're not coming in in contrast to 8 some of our Learned Colleagues and saying that we need 9 five thousand (5,000) hours of tape released, and so many 10 hundred thousand documents. We're merely saying that, 11 irrespective of the processes that are set up, here is an 12 exception, Commissioner, that we appeal to you to make. 13 If, out of that exception, comes a 14 slightly different way of Commission Counsel doing its 15 job, so much the better. But Park that discussion and 16 deal with the fundamental aspect of this Motion. 17 This information is now, if -- if it's 18 further delayed, is an instance perhaps of an unwitting 19 injustice in and of itself, in that it's emergence now 20 will provide context, will provide, in the view of the 21 Aboriginal Parties, or most of them to this Inquiry, a 22 balancing after nine (9) years of the public record in a 23 terribly important way. 24 And if I can elaborate for a moment on -- 25 on that point, and I -- I suspect it's going to be done
1611 in a more detailed way in-camera. Thee will, in the view 2 of the -- of the Dudley George estate and -- and family 3 Party, be prejudice, continuing prejudice to Aboriginal 4 witnesses and perhaps not only to Aboriginal witnesses, 5 but, for example, also to individuals police witnesses. 6 If this information which provides 7 historic context to everything that went on in the -- in 8 the Ipperwash situation, was somehow unlike all of the 9 other historical context that we were presented with so 10 ably by the -- the historic witnesses led by Commission 11 Counsel, was somehow classed to be immediate evidence. 12 The submission that I wish to make at this 13 time is that, in fact, that characterization is 14 artificial and potentially unjust, that it may have been 15 highly proximate and contemporaneous with the events of 16 September 6th. But it is as important as any other 17 historic evidence that needs to be heard, to understand 18 the testimony of all of the witnesses, and for the public 19 to be able to do that. 20 Finally, with respect, Commissioner, to 21 all of the submissions made by our Learned Colleagues in 22 this Inquiry, if I -- if I can perhaps a little over 23 generalizedly (phonetic) state, there's been a lot of, 24 the sky will fall if this step is taken. And in that 25 regard, I recalled a Latin maxim, which I had been taught
1621 during University Latin, which I'd like to read. 2 And a key part of the irony of this -- of 3 this Latin maxim, comes with the fact that it's written 4 in -- in Latin. It's "Fiat justitia et ruat caelum" 5 which means, let justice be done, though the sky shall 6 fall. 7 COMMISSIONER SIDNEY LINDEN: Is that at 8 the end of your submission? I think it's -- 9 MR. ANDREW ORKIN: It -- it's almost the 10 end. Thank you, Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Thank you. 12 MR. ANDREW ORKIN: The -- 13 COMMISSIONER SIDNEY LINDEN: No, I didn't 14 mean to cut you off -- 15 MR. ANDREW ORKIN: Not at all. 16 COMMISSIONER SIDNEY LINDEN: I meant that 17 statement -- that Latin quote is in your submission. 18 MR. ANDREW ORKIN: It -- it is the 19 statement right at the end of the -- The importance of 20 that statement, Commissioner, is that justice has 21 fortunately been done sometimes between the time that 22 Latin maxim was written and the present day. 23 We're constantly reminded that if justice 24 is done, the sky will fall and I would point out that it 25 hasn't yet. Thank you.
1631 COMMISSIONER SIDNEY LINDEN: Thank you, 2 Mr. Orkin. Okay, where are we now? 3 MR. DERRY MILLAR: I think it's -- 4 COMMISSIONER SIDNEY LINDEN: I suppose 5 you, Mr. Rosenthal...? 6 MR. DERRY MILLAR: Mr. Henderson, I 7 think -- 8 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 9 MR. DERRY MILLAR: -- and then Mr. 10 Rosenthal and Mr. Rosenthal and then Mr. Henderson. 11 COMMISSIONER SIDNEY LINDEN: Whichever 12 order you want. After you, Alfonse. 13 Okay, Mr. Henderson...? 14 MR. WILLIAM HENDERSON: Mr. Rosenthal 15 promised to be briefer than I did, let him go now. 16 COMMISSIONER SIDNEY LINDEN: Okay, Mr. 17 Rosenthal, why don't you go first. 18 19 SUBMISSION BY MR. PETER ROSENTHAL: 20 MR. PETER ROSENTHAL: I won't know if I'm 21 briefer than him if I go first. 22 Thank you, Mr. Commissioner. I -- I 23 should begin with expressing my deep respect for 24 Commission Counsel. I really do respect them very much 25 and I think they are trying to, and are doing, an
1641 excellent job of presenting evidence at this Inquiry by 2 they're not perfect. 3 COMMISSIONER SIDNEY LINDEN: I'm happy to 4 hear you say that. 5 MR. PETER ROSENTHAL: Thank you. 6 COMMISSIONER SIDNEY LINDEN: I happen to 7 agree with you. 8 MR. PETER ROSENTHAL: But they're not 9 perfect and I -- I think their position on this motion is 10 incorrect -- to be opposed to this motion. But 11 regardless of your granting this motion or not, 12 Commission Counsel will be leading the evidence at this 13 Inquiry. The real explosive evidence at this Inquiry is 14 going to be from oral evidence and cross-examination of 15 witnesses. 16 The documents are going to be nothing 17 compared to the oral evidence and Commission Counsel is 18 going to continue lead that evidence and the Inquiry will 19 unfold as Commission Counsel sees fit in that respect. 20 We're just talking about the documents. 21 Now, with respect to documents, some of the Parties to 22 this inquiry have had hundreds of documents or thousands 23 of documents at their disposal, way prior to the Inquiry, 24 over the nine (9) year period. 25 COMMISSIONER SIDNEY LINDEN: Hmm hmm.
1651 MR. PETER ROSENTHAL: And much has been 2 released to the public. 3 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 4 MR. PETER ROSENTHAL: That they chose to 5 release. If they had ten thousand (10,000) documents, 6 they picked one (1) or two (2) that made their Party look 7 good. In fact, there's been a whole book written about 8 this incident, as we know, and we have an author who can 9 testify to that and quote from many documents and so on. 10 There's -- there's a lot out there. 11 What's out there is what people chose to put out there in 12 some random fashion, well before this Inquiry came into 13 existence. 14 Some of the Parties, however, such as the 15 people I represent, didn't have access to a lot of 16 documents that we could put out. We had the birthday 17 tribute to Dudley George. We didn't have any tapes, we 18 didn't have any memos. 19 But now we have access to it, thanks to the Commission 20 and the -- the Commission compiling these documents. 21 COMMISSIONER SIDNEY LINDEN: And that's 22 the way it works. The Commission has the power to compel 23 these documents on the understanding that they will be 24 released according to some orderly process -- 25 MR. PETER ROSENTHAL: Yes.
1661 COMMISSIONER SIDNEY LINDEN: -- which is 2 fair to everybody. That's the general understanding. 3 MR. PETER ROSENTHAL: Well, what would be 4 the process that's fair to everybody? I would suggest to 5 you, Mr. Commissioner, the process suggested by My 6 Friends of a compendium where everybody has a right to 7 submit what documents they want to it, is the fairest 8 process. That will put us all on an equal playing field 9 now. 10 It's still the case that the Parties who 11 have access to their own documents can release them now 12 if -- even if they provided them to the Commission. The 13 Undertaking is not to release information that the 14 Commission has given to us, but if the OPP gave the 15 Commission ten thousand (10,000) documents, they can 16 choose to release one (1) or two (2) of those, even 17 still. 18 But the people who can't are the people 19 who don't have any other source for those documents 20 except for the Commission and therefore are bound by our 21 Undertaking. Now, I would suggest then that it levels 22 the playing field to have a compendium. 23 Now, also, the evidence of these 24 particular documents -- and I would suggest, though, a 25 general compendium because we don't have to argue about
1671 this every time somebody thinks there's an important 2 document. I would really respectfully request you grant 3 Number C of Mr. Horton's motion. 4 Anything anybody wants you put it out 5 there and if somebody discovers something next week, you 6 put it out there subject to privilege, of course. If 7 there's any privilege documents, that's a different 8 matter. 9 But there's also another aspect and I 10 didn't fully realize this until a discussion with Mr. 11 Horton the other day I must acknowledge, that the 12 evidence that is currently is under discussions, the two 13 (2) pieces of evidence that are currently under 14 discussion would have had great impact on the witnesses 15 that have been called already and will affect every First 16 Nations witness. 17 Now, at Paragraph 25 of the Commission 18 Counsel's submissions to you, written submissions, it 19 seems to be implicitly acknowledged that, if a document 20 would impact the credibility of a witness then it should 21 be -- might be released. 22 In my respectful submission and I won't be 23 detailed about this, given that I can't refer to the 24 evidence precisely, but Clifford George's and Marcia 25 Simon's credibility would have been enhanced by this
1681 evidence being available. 2 And that would be likely with respect to 3 virtually every and perhaps every, First Nations witness. 4 And I can't explain the link there without referring to 5 the evidence, but -- 6 COMMISSIONER SIDNEY LINDEN: You might do 7 that in the private part. 8 MR. PETER ROSENTHAL: I might do that in 9 the private -- 10 COMMISSIONER SIDNEY LINDEN: I'd be 11 interested in hearing it. 12 MR. PETER ROSENTHAL: I might do that in 13 the matter, yes, sir, yes. 14 And I was not wise enough to see that link 15 as clearly as Mr. Horton did, but you, Mr. Commissioner, 16 are clearly wiser than I. That's why you're sitting 17 there and I'm standing here. 18 But if -- so if you -- if you should see 19 that link then I wouldn't need to comment in-camera. 20 But there is, in my respectful submission, 21 a very significant link and we've already suffered a bit 22 with two (2) First Nations witnesses from not having the 23 availability of that evidence. And it would be very 24 significant prejudice to all the First Nations people if 25 we were to continue to suffer that disability.
1691 Now, there is also the question raised by 2 Mr. Horton of Counsel wanting to introduce evidence to 3 the public and doing it in the course of cross-examining 4 of a witness. And we don't need to have that happening 5 for the next year and a half. 6 Instead, let's just open our front way, 7 put out the documents. It's not going to be the whole 8 Inquiry, it's not going to be the whole direction. 9 Commission Counsel will still direct the Inquiry. 10 And now that my clients have the 11 opportunity to -- to have access to a lot of documents 12 and talk about them in public, too, let them do it like 13 some of the other clients have been doing for the last 14 nine (9) years. 15 Subject to any questions and subject to 16 any clarification, precisely as to what I mean to that 17 credibility, those are my submissions, sir. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much, Mr. Rosenthal. 20 Mr. Henderson...? 21 22 SUBMISSION BY MR. WILLIAM HENDERSON: 23 MR. WILLIAM HENDERSON: Yes, 24 Commissioner. Let me begin by endorsing and adopting the 25 -- the submissions of My Friends who have proceeded me.
1701 The Chippewas of Kettle and Stony Point 2 have taken a -- a slightly different approach in our 3 submissions and I don't intend, of course, to repeat 4 them. I know that you've read them. 5 COMMISSIONER SIDNEY LINDEN: I have. 6 MR. WILLIAM HENDERSON: With respect to 7 the tape itself, or tapes, I think what we are proposing 8 in our submission, respectfully, is that the tapes are a 9 specific example of the general proposition which we 10 endorse consistent with all that has been said and 11 properly said about the role of a Commission, the role of 12 the Commissioner and the role of Commission Counsel, none 13 of which we dispute. 14 And that is, essentially, that consistent 15 with fairness, openness et cetera, et cetera, all -- all 16 the evidence should be brought forward in an orderly, 17 organized fashion and normally that is as the -- as 18 Commission Counsel leads the evidence. 19 What we have here is a specific example of 20 the general proposition where we have a document, to use 21 that term generically, which is now famous for being 22 famous. And we take the pragmatic approach, which we 23 hope is pragmatic, of how do you deal with the specific 24 situation? 25 And our position is that the harm is less
1711 for the entire process now, to let that document be 2 published, to let people consider it and to be aware of 3 it, for what it is. And, of course, Mr. Horton referred 4 to the cautions that you have issued previously, and 5 would no doubt do again. 6 In addition to that proposition, we say 7 that this must be fairly done. And fairness, in our 8 respectful submission means, an opportunity for other 9 parties or interested parties, to simultaneously have 10 released other documents or contextual statements that 11 they consider are fair to everyone, that it all be 12 released at the same time. 13 COMMISSIONER SIDNEY LINDEN: Are there 14 any other documents in that category that you're aware 15 of, other than these tapes? 16 MR. WILLIAM HENDERSON: Well, I can think 17 of relevant -- I can think of relevant documents, yes. 18 Some of the -- I'm not sure that I can get too specific, 19 but there is a conversation that refers to an event, 20 there were other people who participated in that event, 21 who gave statements on examination for discovery in the 22 civil litigation. 23 COMMISSIONER SIDNEY LINDEN: Well, I'm -- 24 MR. WILLIAM HENDERSON: That would be 25 relevant, whether or not somebody wants to include it.
1721 COMMISSIONER SIDNEY LINDEN: You're 2 asking for specifically to -- but there are other 3 documents and pieces of evidence that you believe should 4 be released right now? 5 MR. WILLIAM HENDERSON: Not on behalf of 6 my client. 7 COMMISSIONER SIDNEY LINDEN: No. 8 MR. WILLIAM HENDERSON: In fact, I think 9 -- I think I may have misstated Mr. Downard's position. 10 If you look at his first letter, I indicated what he had 11 -- paraphrased what he had said in his third paragraph, 12 if you look at the last paragraph of that letter, I think 13 Mr. Downard takes the same position, although he can of 14 course comment on that, that fairness -- 15 COMMISSIONER SIDNEY LINDEN: That's fine. 16 MR. WILLIAM HENDERSON: -- he says, let 17 the other parties bring forward anything that puts that 18 in context. That, we suggest, is a fair and pragmatic 19 result to the problem that is before you today. 20 And we also adopt the -- the proposition 21 that -- and endorse the proposition that Mr. Horton 22 advanced, is that it is not necessarily the case that a 23 statement of the principle that this document will, of 24 course, be brought forward in due course, will be brought 25 forward according to the schedule set by Commission
1731 Counsel. 2 And in that regard, I have -- we have 3 before the Commission now, Mr. Marlin Simon as a witness. 4 I have a document that I'm only going to identify for the 5 benefit of other Counsel, by saying it is a list of 6 forty-three (43) items, and it purports to be an index of 7 documents which may be used in cross-examining Mr. Marlin 8 Simon. 9 Number 11 on that list, is a taped 10 interview of an individual who is a participant in these 11 tapes. Now, I can't see a point of principle that would 12 allow this -- that taped interview of that individual, 13 dated September the 14th, 1995, to be used in cross- 14 examination of a First Nation witness, that would exclude 15 inappropriate use of the tape documents for the same 16 purpose on an appropriate occasion, with an appropriate 17 witness. 18 And the advantage I have in making this 19 argument in public and not in-camera, is that I can refer 20 generically to the ingenuity of counsel, without having 21 to give a specific example. But I think you understand 22 the point -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. WILLIAM HENDERSON: -- that this 25 document is going to come forward sooner rather than
1741 later. This is an opportunity to do it fairly and to let 2 everyone see why it's being done. 3 Going beyond that to the second Head of 4 Relief, the compendium, we have added what we call, 5 contextual documents, some of which may not exist. 6 And very briefly, if I may move into the 7 theatre, as Mr. Klippenstein did, one thing that you do 8 have, regardless of the state of the curtains at any 9 given moment, is a program, and what I fortuitously 10 described in our submissions, as a dramatis personae. 11 It is a key document that tells us who is 12 where, when, and, you know, brings this all together, 13 it's a program for the events, we don't have that. 14 COMMISSIONER SIDNEY LINDEN: I think 15 that's the purpose of the report at the end of the day. 16 You're, in effect, asking us to write the report. I read 17 your submission and found it intriguing. I would like to 18 have such a document, but to prepare it, you almost have 19 to go through the investigation. 20 MR. WILLIAM HENDERSON: Well, I'm not 21 sure that one needs to go that far. If I was overly 22 expansive in describing it, I mean, certainly one has a 23 program for the hockey games, we're not watching without 24 knowing the result of the game. 25 COMMISSIONER SIDNEY LINDEN: Well, you
1751 know the players, but that, I mean, -- 2 MR. WILLIAM HENDERSON: Yes, so we know 3 how long it's -- we know how long it's going to take, 4 which is not always the case with a public inquiry. But 5 I think the cast of players, the maps, the kinds of 6 documents I referred to as contextual documents are 7 important. 8 Not just for the use of counsel but, you 9 know, for the public to participate and understand what's 10 happening in the context of the overall exercise. And -- 11 you know, I'm not going to pursue that point because it - 12 - it then becomes a question of priorities. 13 COMMISSIONER SIDNEY LINDEN: I did think 14 it was an intriguing proposition, I just that, you know, 15 it's very difficult to do that at the beginning. But 16 anyways I -- I -- obviously it will be done eventually in 17 the report. 18 MR. WILLIAM HENDERSON: I do -- I do, of 19 course, understand that. It will be more useful to me in 20 my respectful submission to the public -- 21 COMMISSIONER SIDNEY LINDEN: At the front 22 end. 23 MR. WILLIAM HENDERSON: -- if we do it 24 sooner rather than later. 25 COMMISSIONER SIDNEY LINDEN: Yes, I'm
1761 sure. 2 MR. WILLIAM HENDERSON: The -- that again 3 is a more specific example of the -- the third type of 4 relief which -- which Mr. Horton has requested and which 5 we -- we have also supported to the extent that it is 6 within the capacity of -- of the Commission to do it. 7 And obviously it is not for us, it is for you, sir, and - 8 - and for Commission counsel to allocate your resources 9 as best you can to further the mandate and the public 10 interest. 11 If I -- I do not see in the position -- of 12 the written position of Commission counsel that there are 13 technological difficulties in the way, I -- I'm sure 14 there are and I'm -- I'm not going to pursue them or 15 explore them, but to the extent that a compendium of the 16 type described by My Friends can be prepared with the co- 17 operation of all counsel, and their submissions as may be 18 needed with respect to personal information, financial 19 information, medical information, other information that 20 are in these documents that we know should not be on 21 public record or available for the public to review, that 22 would be an extremely useful public and open process. 23 And I noted in my submission that the 24 Commission does not have an office in Forrest, if this 25 does not go on the internet we would suggest that there
1771 be a location in Forrest particularly so that members of 2 the First Nations would have that compendium available to 3 them for review. 4 Subject to any questions you might have, 5 Commissioner, those are our submissions. 6 COMMISSIONER SIDNEY LINDEN: Thank you 7 very much, Mr. Henderson. 8 Are there any other parties who wish to 9 speak in favour of the motion? Mr. Eyolfson...? 10 11 SUBMISSION BY MR. BRIAN EYOLFSON: 12 MR. BRIAN EYOLFSON: Thank you, Mr. 13 Commissioner. ALST supports the position advanced by Mr. 14 Horton on behalf of the Chiefs of Ontario. And I think 15 counsel have pretty much covered off everything I wanted 16 to say, so if I could just make a few comments. 17 Just with respect to the audio tapes in 18 Volume XVI only, from a practical perspective its ALST's 19 view that there's a serious issue of fairness here 20 because of the manner in which the cross-examinations 21 have been conducted with the First Nations' witnesses 22 thus far. Particularly by the OPP and the Police 23 Association. 24 And as Mr. Horton pointed out, those 25 parties have been permitted, and quite properly so, to
1781 cross-examination witnesses with documents that those 2 witnesses never saw, were not the author of, and relating 3 to events that those witnesses had no part in; and that's 4 quite proper in these proceedings. 5 And in my respectful submission in the 6 same way it would be entirely appropriate for parties 7 with a different interest to make use of the tapes in 8 question in the same manner with witnesses who are 9 anticipated to be called and with witnesses who have 10 already been called. 11 And it would be entirely appropriate to 12 put the circumstances as described in the tapes to those 13 witnesses and ask for their comments on accuracy and to 14 provide context. And this would be fair to those 15 witnesses and it would also contribute to public 16 understanding consistent with the Commission's mandate. 17 So in my respectful submission, these 18 tapes are likely to be aired sooner rather than later and 19 could have probably already been properly aired. And 20 given the exceptional circumstances including the nature 21 and the content of the tapes, they should be disclosed 22 now. 23 And finally, with respect to ALST submits 24 that the parties should not be constrained in the use of 25 those tapes by any rulings on this motion. Thank you.
1791 COMMISSIONER SIDNEY LINDEN: Thank you. 2 Okay I would like to keep going if I could. 3 MR. DERRY MILLAR: Mr. Sandler, sir. 4 COMMISSIONER SIDNEY LINDEN: Yes, I know 5 that. I want to go right -- just continue right on. Mr. 6 Sandler on behalf of the OPP. 7 8 SUBMISSION BY MR. MARK SANDLER: 9 MR. MARK SANDLER: Commissioner, to 10 paraphrase Mr. Justice Grange in his comment cited by Mr. 11 Horton, arising out of his own inquiry into the deaths at 12 the Hospital for Sick Children where, incidently, I was 13 the last witness who testified at that inquiry. 14 This is not the first inquiry -- and I 15 refer now to the one here -- in which the public has a 16 special interest, the right to know and the right to form 17 its opinion as it goes along. Those are not 18 extraordinary words for that public inquiry, for this 19 public inquiry, or any other public inquiry that has 20 taken place in this province where the issues are of 21 importance both to the public and to the parties. 22 So it's passing strange that in relation 23 to all of those public inquiries, a process that has been 24 developed, unlike that put forward by Mr. Horton today, 25 that somehow has accommodated the public's right to know,
1801 that somehow has accommodated its special interest, that 2 somehow has recognized its right to form its opinion as 3 it goes along, but by the same token has shown fairness 4 to all of the parties who have participated in that 5 process. 6 Public inquiries are not the only process 7 in which the public has an interest. Criminal trials 8 have recognized through the jurisprudence surrounding the 9 ability of the public to attend and participate in that 10 attendance in criminal trials, the fundamental importance 11 of the public's right to know, to follow, and ultimately 12 draw its own conclusions about the criminal process. 13 The same holds true for many civil 14 proceedings that are of general interest to the public or 15 administrative hearings or similar processes. All of 16 them have adopted a process that balances fairness to the 17 parties and the public's right to know. 18 And I must say, with great respect, that 19 part of the component of the public's right to know, is 20 the right to have an understandable and, dare I say, 21 orderly presentation of the evidence so that it can be 22 understood. 23 With great respect to Mr. Horton, who with 24 great eloquence can make what I respectfully submit is a 25 motion without merit, sound obviously like crystal. It
1811 is a novel and I submit, and untenable proposition that 2 the public's understanding is enhanced -- and I underline 3 that word, "enhanced", by generally releasing productions 4 to the public before they're tendered through witnesses 5 at an inquiry who are entitled to comment upon their 6 accuracy, their reliability, and give context to them. 7 And I have to say that -- that it would be 8 an extraordinary result for you, Commissioner, to 9 determine that somehow the fairness to witnesses who have 10 previously testified or are yet to testify, is somehow 11 undermined by a recognition of a process that has been 12 established for many, many years in public inquiries as 13 important, dare I say, as this and others, which involved 14 the orderly presentation of evidence in a comprehensive 15 and comprehensible way, all of which is fully exposed to 16 the public; that at the end of the piece, has the entire 17 picture before it. 18 And not only has the entire picture before 19 it, but has it with the benefit of those witnesses who 20 can truly give evidence in relation to the documents, has 21 it with benefit of submissions that are directed to you 22 as the significance of that evidence, instead of it being 23 -- and I did use the term -- dumped before the public in 24 a way that the only understanding that the public can 25 derive from it, is through an extra-judicial or extra-
1821 inquiry spin that parties may seek to put on those 2 documents in out-of-inquiry commentary. 3 And I've made something very, very clear 4 at the commencement of this Inquiry and say it again now. 5 Win, lose or draw the OPP makes its submissions to you, 6 sir, not to the media, not directly to the public. 7 That's what a public inquiry should be all about. 8 It should be all about submissions being 9 made to you after evidence is tendered to you so that 10 you, apprised of all of the evidence and all of the 11 submissions, can determine the facts and make 12 recommendations for the future. 13 It does not enhance this process, with 14 great respect, to read in the media not only information 15 that violates the spirits of the undertakings of 16 confidentiality that were given, but characterizes the 17 evidence, that expresses the personal opinion of counsel 18 as to what the evidence is, that expressed personal 19 opinion that this photograph -- 20 COMMISSIONER SIDNEY LINDEN: Just -- 21 MR. MURRAY KLIPPENSTEIN: If I may 22 interject, I don't know exactly what Mr. Sandler is 23 referring to. But it -- it may be skirting into areas 24 here which don't seem to me to be related to the 25 confidentiality of the tapes. And if -- if that occurs I
1831 may express objections and -- and request certain -- 2 COMMISSIONER SIDNEY LINDEN: I haven't 3 heard anything improper yet, Mr. Klippenstein. If we do, 4 you'll stand up. 5 MR. MURRAY KLIPPENSTEIN: Thank you. 6 COMMISSIONER SIDNEY LINDEN: Carry on, 7 Mr. Sandler. 8 MR. MURRAY SANDLER: Thank you. Well in 9 my respectful submission, and I say with great respect to 10 Mr. Klippenstein, one has to see this motion -- and this 11 doesn't reflect upon Mr. Horton in the slightest and I've 12 reflected that in my written submissions. 13 In the context of a phenomenon that is 14 occurring at this Inquiry, one just can't look at this in 15 the abstract and say this is a nice interesting debatable 16 proposition over whether tapes that are of some 17 importance should be filed now or later in the piece. 18 One has to, with great respect, see it in 19 the context of a situation where counsel and the parties 20 provided with assurances of confidentiality, wholesale 21 productions. 22 Those productions contain voluminous 23 materials on the part of the OPP. They contain materials 24 that have personal and sensitive information at times. 25 The OPP will indeed relied upon the assurances of counsel
1841 expressed at a request by Mr. Millar to the parties, that 2 the OPP may not have caught all of the personal and 3 sensitive information that shouldn't be released to the 4 public but rely upon the integrity and good faith of 5 counsel in distributing that documentation. 6 And those assurances allowed wholesale 7 fulsome productions to be made. Those productions are 8 still ongoing, not only on the part of the OPP but on the 9 part of other parties or non-parties to this process such 10 as the DND. 11 And again those productions are very much 12 dependent upon the undertakings of confidentiality that 13 have been provided. 14 Now those documents in many instances also 15 raise issues of privilege, of redaction, of relevance 16 and, with great respect, it is no simple matter and I 17 don't say this in terrorem to suggest that somehow 18 parties can come to some magic agreement as to a 19 compendium of the documents that are of importance in 20 this proceeding. 21 For those of us who are up to our knees, 22 dare I say shoulders, in the documents relating to this 23 Inquiry, we know that the task of determining what 24 documents are important to our respective positions for 25 the purposes of a compendium and the extent to which
1851 documents contained therein may have portions that should 2 not be released to the public. 3 And the extent to which those documents 4 may contain privileged information and the extent to 5 which those documents may arguably give rise to concerns 6 about relevance or admissibility before you is an 7 impossible task to determine at this stage. 8 I mean, it's a delightful idea to have a - 9 - have a wonderful compendium of documents that everybody 10 agrees upon or agree to disagree upon that are important. 11 The reality is that at this stage of the process, that is 12 an impossible task. 13 But the point that I was making when 14 interrupted, is an important point as well, because the 15 context within which this matter percolated to the 16 surface also has relevance to the exercise of your 17 discretion. 18 What we saw as an exercise was not that 19 upon receipt of the production of these tapes and other 20 documents, the parties -- and again I'm not talking about 21 Mr. Horton -- that the parties immediately came before 22 you with an application to release the documents under 23 the rules that exist for this Inquiry. 24 What we saw -- and there's no mincing 25 words about it -- what we saw was, an effort to pressure
1861 this Commission publicly through a press conference to 2 release the documents and we saw characterizations 3 reported in the media that they were tapes, that they 4 were between senior OPP officers, that they were 5 explosive, that they explained Dudley George's death. 6 In my respectful view -- and I say this 7 with great respect to Mr. Klippenstein -- violating the 8 spirit of the very undertakings that we're talking about; 9 leaving aside the issue that they were being raised 10 extra-inquiry and not before you. 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Klippenstein? 13 MR. MURRAY KLIPPENSTEIN: I said at the 14 beginning of this that there was a vague reference to 15 other issues and if there's going to be some suggestion 16 that there was some violation of the confidentiality then 17 I -- I would like to address it. I would also like to 18 have it focussed and not backhanded. 19 But my presumption is, that that's not 20 really the issue before the Commissioner this morning. I 21 certainly don't accept for one (1) second, any of those 22 insinuations as they -- as they appear and I'm happy to 23 address any and all of them with proper notice and 24 context but I don't propose to at this time. 25 COMMISSIONER SIDNEY LINDEN: I prefer,
1871 Mr. Sandler, if you tried to confine your remarks to the 2 issue that we're trying to deal with, which is the timely 3 release of these documents. 4 MR. MARK SANDLER: I understand that, but 5 the only point that I was making and the only relevance 6 of it -- and it is reflected -- this is no surprise -- it 7 is reflected in my response, and I was very careful to 8 say the spirit of the undertaking. 9 I'm not going to accuse My Friend of 10 violating his undertaking of confidentiality, but my 11 respectful submission is that one has to see this motion 12 in a context of a phenomenon that is occurring at this 13 Inquiry and that is, in my respectful submission, that 14 one can expect that as these tapes and others and other 15 so-called central documents are released to the public 16 rather than through the process of the development of 17 evidence, then we're going to see characterizations of 18 what these tapes mean, what they say, what the true 19 evidence is, how they're inconsistent with other proposed 20 evidence down the road. 21 And frankly, this Commission, in the 22 exercise of its discretion, should not contribute to that 23 process that notwithstanding the very well-meaning 24 character of Mr. Klippenstein and Mr. Orkin, does not 25 enhance the public's understanding. It may enhance the
1881 understanding of his position, but it does not ultimately 2 enhance the public's understanding of what the facts are. 3 We have a very simple request on the part 4 of the OPP and that is that the issues that are of 5 relevance here be determined here. It's not an 6 extraordinary proposition. It's not unique to this 7 Inquiry. 8 I simply ask that we all be introspective 9 about what our roles were and are, but that the arguments 10 that we have to make be made to you and not to the media 11 and my concern is, as a matter of principle -- because 12 this has nothing to do with the specific contents of the 13 tapes -- that as a matter of principle, that you, 14 Commissioner, should not encourage a process that may not 15 only result in the wholesale dumping of documents into 16 the public realm without any real opportunity to evaluate 17 their significance in the context of admissible evidence, 18 but contribute to a process where it's more important to 19 make one's case in the media than to make one's case to 20 you. 21 And I'm uncomfortable saying that and I'm 22 uncomfortable that we have to -- that we have to even get 23 there. But my submission is, that I have read an awful 24 lot in the last few weeks, that disturbs me, not because 25 of the content of the positions being advocated by the
1891 various parties, that's the healthy part of this process. 2 You've got such a divergence of opinions on the issues 3 that are of importance to you. 4 We're content to let you decide those 5 matters, and not argue our case outside of the Inquiry. 6 And the -- and the proposition that's being proposed 7 here, unfortunately would -- contribute to a very 8 different process, in our respectful submission. 9 Mr. Horton has submitted in his written 10 submissions, that -- that the public should be provided 11 with full access to evidence which is relevant to the 12 issues. We agree. And that will occur here, as it has 13 in relation to all Public Inquiries which have adopted 14 similar procedures to the ones adopted by this 15 Commission. 16 In a criminal trial, what could be more 17 important to the public than not -- and to the Jury, who 18 decides the facts in the case, to hear, in a fair and 19 efficient way, what the evidence is. Does that mean that 20 you file the confession in advance of the -- of the 21 Hearing? Kind of put it out there for the public so they 22 can start thinking about it? Or do you file the -- the 23 gun, or do you file a piece of evidence from the accused 24 as to his alibi? Why don't we just file all that stuff 25 in a compendium before the trial even starts?
1901 We'll leave aside fairness to the accused, 2 which raises different considerations, of course. Does 3 that truly contribute to the public's ability to evaluate 4 the guilt or innocence of an accused in a criminal court? 5 No. It's through the orderly presentation by all 6 parties, not simply the prosecution, but by the defence, 7 that the public's understanding is enhanced. 8 Here you've got an even greater advantage. 9 And here, Commission Counsel is not to be an advocate. 10 So it's not as if the -- the -- the Inquiry is proceeding 11 on a basis where we start off with a position being 12 advocated by a particular party, and that structures the 13 orderly presentation of the evidence. 14 I mean, it's difficult for me to see where 15 the so-called unfairness is, in this process, when 16 Commission Counsel aren't to be taking any position on 17 the evidence, but just developing the evidence in a way 18 that the public will understand it, that's their role. 19 So -- so, sometimes My Friends say, and 20 I'm not criticizing Commission Counsel, but that's 21 exactly what's going on, with great respect. Because 22 what it's saying is, Commission Counsel aren't presenting 23 the evidence in a way that's fair to their client or to 24 the public, and I disagree, with great respect. That 25 isn't what is happening here. And I don't agree with
1911 everything Commission Counsel does, I make that quite 2 clear. That's -- that's why I'm not Commission Counsel 3 and they are. 4 I do want to address another issue that 5 has come up, and it's a -- it's a difficult issue, and 6 that is the idea of using documents in a somewhat 7 colourable way in the cross-examination of witnesses. 8 Because what you're hearing is, well if the motion isn't 9 granted, in effect, one can do indirectly what one does 10 not do directly. 11 And to take the -- the example that makes 12 the point most dramatically, a witness is on the stand, 13 the only relevance of the witness to identify a map and 14 say, All right, we'll listen to this tape involving 15 Senior OPP officers; did you know about the tape; no; 16 thank you; no further questions. 17 Now, you have the discretion to prevent 18 cross-examination that's colourable, that in effect is 19 designed only to put this item out there when it has real 20 no -- no real value in the cross-examination of the 21 witness. And I suggest, Commissioner, with great 22 respect, that you may want to take -- act more actively 23 in preventing that happening. 24 My Friend cited cross-examination, not 25 mine, but cross-examination by the OPPA, I suggest that -
1921 - that the OPPA would differ as to whether that was 2 colourable cross-examination. But the point is that you 3 have the discretion, indeed the obligation, to prevent 4 cross-examination that is just calculated to throw these 5 things out into the public forum and have no real value 6 with the witness. 7 I want to say it once, that to take an 8 example, when I was cross-examining Mr. George, Mr. 9 Clifford George, I was putting to him, through both 10 newspaper clippings and other documentation, matters that 11 he could be expected to comment on one (1) way or the 12 other. 13 He'd given evidence on events in 1998 and 14 here I was putting newspaper articles that purport to 15 quote him. He was commenting upon the shooting of the 16 helicopter saying both that he was there and suggesting 17 that -- that the events occurred in a way that's 18 different than other evidence might describe. 19 So I was putting to him available evidence 20 or anticipated evidence that bears upon that issue. And 21 -- and with great respect, I did it with courtesy, I did 22 it with fairness. And I leave as an aside I then found 23 it disturbing to see that -- that I was being disparaged 24 again by one (1) of the party's Counsel in the media for 25 a so-called unfair cross-examination.
1931 And I suggest with great respect that 2 rather than disparaging Counsel and I -- I'll put myself 3 in the same category, in the media or elsewhere, we will 4 all move along in a more appropriate way if the 5 submissions are directed to you, that you address issues 6 of fairness. And with great respect, you limit the use 7 of documentation that in your view cannot or should not 8 properly be put to the witness. 9 I don't want to sound like a -- like a 10 smart alec or a know-it-all but my respectful submission 11 is that there's a lot to be said for an earlier 12 submission that I made to you, Commissioner. 13 That even though the rules of reliability 14 -- the rules of admissibility are not as stringent in a 15 public inquiry as they are at a criminal or civil trial. 16 There's much to be said that -- that the rules should 17 generally be the same. And that one should only, in 18 exceptional circumstances, deviate from those rules. 19 Because the rules are grounded in 20 reliability and the basis for your rulings and findings 21 of fact at the end of the piece should be reliable 22 evidence. That should be what you are interested in. 23 COMMISSIONER SIDNEY LINDEN: Thank you, 24 Mr. Sandler. You're going a little beyond the issue that 25 we're hear to talk about. I appreciate --
1941 MR. MARK SANDLER: I am. 2 COMMISSIONER SIDNEY LINDEN: -- the 3 suggestion and the advice, I do -- I do. But you're 4 going a little beyond what you need to. 5 MR. MARK SANDLER: I appreciate that and 6 the only reason I do so and -- and it's not an 7 inadvertent digression. The only reason I do so, because 8 in my respectful submission it responds to the suggestion 9 that -- that well, any document can be introduced in any 10 event simply through putting it to any witness. And my 11 submission is that if we hearken back to a process where 12 documents are put to witnesses, you might be expected to 13 -- to comment legitimately upon them, then that danger 14 will not occur. 15 So my submission is that regardless of 16 these tapes or any other piece of evidence and as I have 17 said in my written submissions, the OPP doesn't rezile 18 (phonetic) from the tapes and looks forward to their 19 introduction and looks forward to hearing evidence about 20 them. 21 And will make submissions as to why they 22 favour our ultimate position, that's really not the issue 23 here. The issue here is whether we should now adopt a 24 process that brings with it not only the dangers that I 25 described but also is inconsistent with the practice that
1951 has been adopted in fair, independent and important 2 inquiries in the past. 3 As for the proposition of a compendium, 4 with great respect what would transpire given all of the 5 kinds of issues that I see associated with the 6 identification of important documents or central 7 documents, the identification of which are admissible, 8 the identification of which ones should or shouldn't be 9 redacted. And in the context of productions that are 10 still ongoing and have not yet been completed, that would 11 work a tremendous unfairness to a number of parties here. 12 It would then put a burden upon your own 13 counsel that I suggest is insurmountable and we'd be 14 spending more time in the next six (6) months figuring 15 out what should be in a compendium than addressing the 16 evidence of the witnesses who are currently testifying. 17 Those are my respectful submissions, thank 18 you, sir. 19 COMMISSIONER SIDNEY LINDEN: Thank you 20 very much, Mr. Sandler. 21 I would like to call on Counsel for the 22 OPPA. 23 24 SUBMISSION BY MS. KAREN JONES: 25 MS. KAREN JONES: Thank you, Mr.
1961 Commissioner. Mr. Commissioner, I plan to be very brief. 2 It's a submission of the OPPA that the public is served 3 by having a full, fair, and objective Hearing process. 4 And there is a process that has been used in inquiries 5 and has been well established, which is that it is the 6 role of the Commission to locate, organize and call 7 evidence. And that it is only in the rarest and most 8 unusual of circumstances that that process ought to be 9 deviated from. 10 And we've reviewed the material that's 11 been provided by the Parties, Mr. Commissioner, and as 12 noted in our submissions, we are dealing with a 13 historical matter that happened nine (9) or more years 14 ago. 15 There is no urgency in the circumstances. 16 We could anticipate that there may be some circumstances, 17 and that's set out in our submission, wherefore a public 18 safety issue, it would be important for something to be 19 put before the public quickly. There's nothing that 20 we've seen or heard or has been put before you that 21 indicates anything of that kind of urgency. 22 And, Mr. Commissioner, I don't want to go 23 into great length in responding to some of the comments 24 that have been made by Counsel, but I do need to address 25 them, particularly wherein Counsel referred to "antics"
1971 or they make disparaging comments about other Counsel. 2 On September 21st, Mr. Roland had provided 3 all Counsel and the Commission with a list of documents 4 that he intended to refer to in his cross-examination of 5 Mr. George. Everyone was on notice of that. 6 There was a portion of time in his cross- 7 examination where he told Mr. George, and he put before 8 the Commission, that he intended to put statements or 9 refer to documents that covered information that Mr. 10 Clifford knew of, had given evidence of, or had reason to 11 know about. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MS. KAREN JONES: Those documents 14 contained information that was, in many cases, at odds 15 with what Mr. George's recollections or evidence were. 16 And, Mr. Commissioner, Mr. Roland was 17 questioned at the time about that. He explained that he 18 was doing it for the purpose of fairness, that is, it's 19 fair if a witness makes a comment about something and one 20 can anticipate that another witness or witnesses later on 21 will have something other to say, that they have an 22 opportunity to respond to that. 23 And, Mr. Commissioner, on September 21st, 24 objections were made, you've listened to all the 25 arguments and you ruled. And frankly, for Counsel now,
1981 after that process has been gone through and you ruled. 2 And you found it permissible for Mr. Roland to -- to 3 continue on in his cross-examination in that way, to now 4 characterize it as an antic or make disparaging comments 5 really is a comment on the process which you have agreed 6 to. 7 Mr. Sandler talked about -- a little bit 8 about the effect that it can have on a process to have 9 rancourous or disparaging or other kinds of conduct going 10 on by Counsel, as did Mr. O'Connor in his report in the 11 Walkerton Inquiry. He really noted that where parties 12 worked -- together cooperatively, that it leads to a much 13 fairer and more efficient process. 14 And, Mr. Commissioner, I would really hope 15 that we can carry on in a cooperative and fair way 16 without that kind of comment. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 Thank you very much. 19 MR. WILLIAM HORTON: Mr. Commissioner, 20 just to be clear and -- and in fairness to Ms. Jones, the 21 -- the reference I made was to the suggestion by Counsel 22 that the picture was a picture of a man carrying a gun 23 when there had been no evidence with respect to that led 24 from the Witness or from anyone else to the point. And 25 when it was not apparent from the photograph. That was
1991 what I was referring to if she wants to address her 2 submissions to that. 3 COMMISSIONER SIDNEY LINDEN: It's not 4 necessary to address your submissions to that now. All 5 right -- unless you want. I don't want to prevent you if 6 you want to, but it isn't necessary. It isn't necessary. 7 MS. KAREN JONES: Mr. Commissioner, thank 8 you. My comments would be the same, as I -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MS. KAREN JONES: -- I wasn't in the room 11 at the time. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MS. KAREN JONES: I'm -- I look at the 14 transcript. I note from the transcript that objections 15 were raised at the time and you dealt with them. 16 COMMISSIONER SIDNEY LINDEN: No. But I 17 also -- 18 MS. KAREN JONES: It is to go on -- 19 COMMISSIONER SIDNEY LINDEN: In our 20 conversation -- 21 MS. KAREN JONES: Yes. 22 COMMISSIONER SIDNEY LINDEN: -- on a 23 similar matter I indicated the line between fairness to a 24 witness and unfairness was a fine one and you stopped 25 along -- proceeding along that line at a point where we
2001 thought it might be moving into an unfair area. Do you 2 recall that? 3 MS. KAREN JONES: Mr. Commissioner, I did 4 recall that and I -- I was careful in my cross- 5 examination -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. KAREN JONES: -- hopefully to stay on 8 the right side of that and -- 9 COMMISSIONER SIDNEY LINDEN: I think you 10 did. 11 MS. KAREN JONES: -- I have trust in you, 12 Mr. Commissioner, as the person -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MS. KAREN JONES: -- running the process 15 that if you think that I'm incorrect or any Counsel's 16 incorrect, you'll call our attention to it. 17 COMMISSIONER SIDNEY LINDEN: I think so. 18 That's why I said it isn't necessary for you to address 19 the comment now. 20 MS. KAREN JONES: Thank you. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. Okay, where are we now? I think we're up to 23 Nanc -- we haven't had a break? You need a break? I 24 want to finish that's all. It's a quarter to 4:00, okay. 25 I'm being told by the court reporter that we need a
2011 break. Let's take a short break, let's say ten (10) 2 minutes. 3 THE REGISTRAR: This Inquiry will recess 4 for ten (10) minutes. 5 6 --- Upon recessing at 3:45 p.m. 7 --- Upon resuming at 3:58 p.m. 8 9 THE REGISTRAR: This Inquiry is now 10 resumed. Please be seated. 11 COMMISSIONER SIDNEY LINDEN: Ms. Spies..? 12 MS. NANCY SPIES: Thank you, Mr. 13 Commissioner. I don't believe that I can add to my 14 written submissions which I know you have. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much. 17 COMMISSIONER SIDNEY LINDEN: Let's see, 18 if I go back to the order that I was given. 19 MR. DERRY MILLAR: Mr. Hodson. 20 COMMISSIONER SIDNEY LINDEN: Counsel for 21 Mr. Hodson. 22 23 SUBMISSION BY MS. MEGAN MACKAY: 24 MS. MEGAN MACKAY: Good afternoon, 25 Commissioner. Mark Frederick and Craig Mills apologize
2021 for their absences. They've been called away to urgent 2 matters. We adopt the written submissions of Ms. Spies 3 and I don't want to unnecessarily duplicate her 4 arguments. 5 But briefly we, of course, do not object 6 to the disclosure of non-privileged documents that are 7 central to the Inquiry. But it is our position that the 8 documents in question should be disclosed when they form 9 part of the evidentiary record. And they should be 10 disclosed through witnesses who can speak to the context 11 and the authenticity of the documents and be subject to 12 cross-examination. 13 The early release of the documents in 14 question could cause unfair prejudice to particular 15 parties. It invites a parallel process of media comment 16 and sensationalism. And it could ultimately reduce the 17 effectiveness of the Inquiry. 18 And subject to any questions, those are 19 our submissions. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. 22 MS. MEGAN MACKAY: Thank you. 23 COMMISSIONER SIDNEY LINDEN: Mr. Downard. 24 25
2031 SUBMISSION BY MR. PETER DOWNARD: 2 MR. PETER DOWNARD: Very briefly, Mr. 3 Commissioner. Our client is taking the position that the 4 issue as to timing of disclosure is a matter for the 5 Commission to process and that, therefore, we will not 6 object on that particular issue. 7 Our only position would depend upon a -- a 8 further term that we would seek if early disclosure of 9 this particular tape was made. 10 In -- in that respect, I think it's -- 11 it's very important and consistent with the constructive 12 nature of dialogue among Counsel in this process that Mr. 13 Klipperstein stated today quite clearly that the issues 14 in this matter are complicated. And with particular 15 pieces of evidence such as these tapes, he may look at 16 them as -- as having something to help him. I may look 17 at them as having something to help me. 18 The problem is that when we get outside 19 this process and we get into arguing the matters in the 20 media, statements can become more simplistic and more 21 inflammatory. And in order to deal with that, our 22 position has been that if there were to be immediate 23 disclosure of the tapes, then the entire set of documents 24 that all Counsel have should be an open door for all 25 parties.
2041 So that if we had to deal with that sort 2 of situation, we wouldn't be limited in the resources we 3 could use in reply. But those are all of my submissions. 4 COMMISSIONER SIDNEY LINDEN: Thank you 5 very much, Mr. Downard. Have you got the order, Mr. 6 Millar? I think it's Counsel for Mr. Beaubien. 7 MR. DERRY MILLAR: Yes. 8 COMMISSIONER SIDNEY LINDEN: Mr. Sulman? 9 10 SUBMISSION BY MR. DOUGLAS SULMAN: 11 MR. DOUGLAS SULMAN: Mr. Commissioner, 12 you -- you have my written submissions in an outlying 13 letter and so I'm just going to touch on a couple of the 14 areas that have been raised by the movers. And -- and 15 the first -- and we'll do these very rapidly -- the first 16 is really the -- the quotations from Mr. Justice Grange 17 and -- and Mr. Justice Cory (phonetic). 18 Nothing in those quotations that have been 19 put before you suggest that evidence should not be 20 revealed. In fact, it's quite the opposite. And all 21 that those quotations -- those statements -- assert is 22 that all the information should be in public and that's 23 the sum and essence of what those statements are. And 24 that is exactly the way this Commission is proceeding and 25 is conducting this Inquiry.
2051 And I -- it's my submission -- I'm 2 supportive of what is going on to this point and -- and I 3 -- my position and my submissions is that any evidence 4 brought forward must be done in an orderly and logical 5 fashion, and that's what I've seen to this point. 6 It's probably helpful to know that I don't 7 agree with everything that has come forward. Neither 8 does the others -- the -- what appears sometimes to be 9 the other side, although we're not in an adversarial 10 situation. That's usually a good test to determine that 11 Commission Counsel's doing a -- a good job because -- not 12 making everybody happy but not making everybody unhappy 13 and he's walking that fair line in between. 14 I always find when I'm criticized from two 15 (2) ends that I know I'm doing a good job and I think 16 that applies to -- to My Friends to my left. 17 On the compendium issue, I believe you've 18 cut to the chase. In a -- the compendium's -- the 19 compendium analogy that you've been given in civil 20 litigation, I would remind all that the documents that 21 usually are found in that compendium are subject to the 22 implied undertaking rule. And, so while they are in the 23 compendium, they are not released to the public. 24 And that brings me to my next area and 25 that is, I am one (1) of the two (2) Counsel who were
2061 involved -- who are here today -- who were involved in 2 the civil litigation. And Mr. Millar and I had lengthy 3 discussions over a lengthy period of time on the release 4 of documents because I had concerns about my obligation 5 under the implied undertaking rule. And, at that time, 6 we had not established what the rules would be here, 7 during our initial discussions. 8 But having read the rules and having 9 spoken with Commission Counsel and having trusted the 10 process, we simply turned over all the documents that we 11 had, believing that they would be kept confidential until 12 introduced in evidence. And I am not alone in that, 13 although I am one (1) of the few who was involved in the 14 litigation itself. And I believe in the integrity of the 15 process and it must be maintained because we have relied 16 on that and we have been forthcoming. 17 Certainly, the Commission has the right to 18 compel those documents, but we didn't -- and I'd have the 19 right to appeal the -- the compelling of the documents. 20 We didn't need to go through that process because you put 21 rules in place. I think we must stick to those -- those 22 rules. 23 In my submissions, I referred to somewhat 24 colloquially as cherry-picking of evidence and selective 25 disclosing of evidence. And the concern that I expressed
2071 is that it can result in -- in media headlines with -- 2 which without context and cross-examination -- can -- or 3 may tend to distort, rather than reveal the truth. And 4 this Inquiry is about revealing the truth and so I put 5 that forward to you, sir, that it's important that it not 6 be cherry-picked. 7 And I just want to give one (1) small 8 example. If this motion were to be successful and this 9 tape were to be revealed, is it then to -- up to me and 10 others to bring a motion a week later to say there are 11 transcripts of examinations for discovery from witnesses 12 from the civil litigation which you've read in context 13 with the tape, might explain everything. Might -- might 14 be totally relevant and should be heard together. You 15 can imagine the process that would go on. 16 We're back and forth and back and forth 17 and although, I don't know that the sky would fall, it 18 certainly would reek havoc on the orderly presentation of 19 evidence. And I think we're following a process now that 20 keeps us away from that. It keeps us away from that. It 21 just leads us to a plethora of emotions and I don't think 22 that serves the public, sir, nor the -- the orderly 23 conduct of this Inquiry. 24 And so I'm supportive of what I believe 25 will be the position of Commission Counsel that we
2081 proceed as we are proceeding and that this tape not be 2 taken out of order but rather be presented through a 3 witness. I don't say which witness but a witness is 4 party to the conversation and presented in proximate time 5 to a witness who is -- is also involved with that 6 conversation. 7 So that we get all the evidence out at 8 once, the transcripts, the viva voce evidence and this 9 taped evidence. 10 Those are all my submissions, subject to 11 any questions you may have from reading my written 12 submission, sir. 13 COMMISSIONER SIDNEY LINDEN: That's fine, 14 Mr. Sulman. Thank you very kindly. 15 MR. DOUGLAS SULMAN: Thank you, sir. 16 COMMISSIONER SIDNEY LINDEN: We're moving 17 right along. Counsel for Ms. Hutton. 18 19 SUBMISSION BY MS. ANNA PERSCHY: 20 MS. ANNA PERSCHY: Good afternoon, Mr. 21 Commissioner. I'll be brief. The -- the only issue is 22 the timing of the disclosure of the documents. And I 23 agree with the submissions of Mr. Sandler regarding the 24 need to hear the testimony of witnesses at the Inquiry 25 who can speak to documents. I also adopt the written
2091 submissions of Ms. Spies. 2 I've got a couple of additional comments 3 that relate directly to my client. In support of their 4 request that certain documents be disclosed early, the 5 applicants have requested that this Inquiry rely on the 6 work of other proceedings and assume that the public has 7 already seen some documents. 8 And with all due respect, I submit that 9 it's not helpful to treat this Inquiry as some sort of 10 add-on to other proceedings. Not all the parties, who 11 have standing at this Inquiry, were parties to the other 12 proceedings. And with respect to the public, we simply 13 don't know what specific documents may have seen or heard 14 about previously. 15 In my submission, and it's commonsense, 16 this Inquiry should start at the beginning, not in the 17 middle. That is the best way to ensure that all the 18 public can have full access and can follow these 19 proceedings, even those who could not, who did not for 20 various reasons follow the previous proceedings. 21 Starting at the beginning also ensures 22 that those parties like my client, who were not a party 23 to any previous proceedings but do have standing at this 24 Inquiry, do have a proper opportunity to participate. 25 With respect to the submissions regarding
2101 the compendium, they're practical problems. There are 2 thousands of documents that have been produced in this 3 Inquiry in the last couple of months and more are 4 expected. Because my client wasn't a party to the 5 previous civil proceedings, neither she, nor frankly I, 6 have seen many of the documents that have been produced. 7 Therefore, my client's at a disadvantage 8 relative to some of the other parties at this very early 9 stage of the Inquiry in terms of being able to review the 10 documents and assess the relative significance of all the 11 documents that we're dealing with. 12 Therefore, in fairness, the appropriate 13 way to proceed in this Inquiry is the same way that we 14 proceeded in other inquiries and, that is, to allow the 15 documents to be introduced through witnesses who can 16 speak to them and provide an appropriate context for 17 them. 18 Those are all of my submissions, subject 19 to any questions that you may have. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very kindly. The Coroner, the Coroner's office. 22 23 SUBMISSION BY MR. AL O'MARRA: 24 MR. AL O'MARRA: Thank you, Mr. 25 Commissioner. I just have some observations that I would
2111 like to offer. First of all, the Chief Coroner endorses 2 in its entirety the written submissions of your counsel 3 that have been tendered. 4 The Chief Coroner, of course, is engaged 5 continuously in a process that is similar to this and, in 6 fact, has incorporated much of the rules, practice and 7 procedures. We require undertakings with respect to 8 information provided to potential parties and parties. 9 We also have, of course, counsel who represents the 10 public interests in an impartial manner who tenders 11 evidence on behalf of that process based on the issues 12 and scope as determined by the presiding officer. 13 There is a similar purpose of course and, 14 that is, to inform the public of the true circumstances 15 of a situation and secondly, to advance public safety. I 16 would observe, sir, that in dealing with this application 17 that there may be two (2) questions that you might pose. 18 The first is: Do you need to direct the 19 immediate release of this information outside of the 20 usual evidentiary tendering process to properly inform 21 the public of the true circumstances of these events and, 22 more particularly, this fatality? 23 Secondly: Do you need to direct the 24 immediate release of this information outside, again, of 25 the usual and orderly tendering of evidence to advance
2121 public safety? 2 I would submit to you that, given the 3 timing of this event that the answer to the second 4 question is, no. You, yourself, sir, have observed that 5 it's not a question as to whether the evidence is 6 tendered, the question is rather one of timing. 7 In terms of addressing that first 8 question, of properly informing the community. Of 9 course, this process, as we all know, is a fact-finding 10 process but it is more. It is a truth-seeking process. 11 And one (1) simple observation that I 12 would make, that I believe all would agree with, that all 13 truth is contextual. To direct the immediate release, I 14 submit to you, would permit public access to the 15 information out of context and the ability, importantly, 16 of the Parties in the process to place it in context in 17 an orderly fashion. 18 I have heard the submissions of My 19 Friends in terms of the concern. I submit to you, sir, 20 that it would move the information from this process and 21 one to a process before the media where the Parties would 22 be commenting, perhaps arguing, about it in front of the 23 Inquiry rather than within the Inquiry to your benefit. 24 One certainly can understand the desire of 25 the Applicants and those who support it, given the time
2131 that it has taken to embark upon this fact-finding 2 process into the death of Mr. Dudley George, but I submit 3 to you, sir, that this information should be tendered in 4 its proper context, permitting all Parties to help the 5 Commission and the public to understand its relevance and 6 significance. 7 It should not be released, with respect, 8 directly to the media who would operate without the 9 benefit of all of the - and I would say - voluminous 10 documentation that has been provided and made available 11 through your Counsel and available to the Parties, who 12 have standing; some of whom have standing because of 13 concerns of censure and criticism, who would feel 14 compelled to comment on it in the media and outside the 15 context of this Inquiry. 16 And perhaps, sir, to paraphrase Desirata 17 (phonetic) without any sense of improving it, the 18 universe shall unfold as it should, given the fullness of 19 time, given your comment, sir, that this information will 20 find its real place in this process. 21 I would also submit on behalf of the Chief 22 Coroner that engaged in a like process, that it might set 23 an unfortunate precedent in the absence of exceptional 24 circumstances that warrant public safety concerns or that 25 it would immediately advance the public in fully
2141 understanding the significance of this information. 2 Thank you, sir. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much. 5 I think Counsel for the Province of 6 Ontario, Ms. Twohig...? 7 8 SUBMISSION BY MS. KIM TWOHIG: 9 MS. KIM TWOHIG: Thank you, Mr. 10 Commissioner. The Province, like everyone else in this 11 room and everyone else who's made submissions in response 12 to the motion, agrees that the tapes are relevant and 13 agrees that they should be make public. The only two (2) 14 issues are, essentially, how and when. 15 In answer to the question, how, it's our 16 submission that they should be made public through the 17 Inquiry process which provides that witnesses be called 18 and that evidence be introduced through witnesses, 19 subject, of course, to any other agreements between 20 Commission Counsel and others. 21 The Commission can only act in accordance 22 with the Public Inquiries Act and the rules properly made 23 under that Act. The rules and the Act contemplate that 24 documents are only released through the hearing process. 25 There's no provision for documents to be released
2151 directly to the public, as My Friends would suggest. 2 What the Commissioner can do is to release 3 Counsel from the undertakings that they have given 4 regarding confidentiality. 5 What is being suggested by the moving 6 parties is that the undertakings essentially be done away 7 with and I say that in response to the prayers for relief 8 that have been made in the Notices of Motion. 9 Mr. Klippenstein said that I had made 10 vague reference to other issues and those are the other 11 issues. For example, Counsel for the Chiefs of Ontario 12 acknowledge that he was seeking disclosure on three (3) 13 levels, one of which was essentially disclosure of any 14 document that they considered important at any time. 15 In the Notice of Motion, there are three 16 (3) parts. The second part -- or the first one is 17 authorizing and directing Commission Counsel to 18 immediately release certain audio tapes to the public. 19 The second is authorizing and directing 20 Commission Counsel to release documents to the public on 21 an on-going basis as soon as practicable after such 22 evidence becomes known to Commission Counsel. That does 23 not deal with only core or allegedly important documents, 24 but basically any documents. 25 And the third paragraph is authorizing and
2161 directing Commission Counsel to release documents to the 2 public at the same time it is provided to the 3 Commissioner, subject to the exception of privilege. 4 This, effectively, does away with the 5 undertaking. 6 Similarly, Mr. Klippenstein asked in 7 paragraph 3 of his Notice of Motion for an Order 8 releasing legal Counsel for the parties to the Inquiry 9 from their confidentiality and used undertakings in 10 respect of the OPP tapes. 11 In response to some of the submissions 12 made by the moving parties, I have a few comments. Mr. 13 Horton said that it's important to make available certain 14 documents so that the parties are not constrained in 15 their cross-examination. 16 In response to that, I would submit that 17 that's the very purpose of disclosure to all parties and 18 their Counsel and for the undertaking. It's very similar 19 to the deemed undertaking in civil litigation and the 20 implied undertaking in criminal litigation. 21 The purpose is to allow for disclosure 22 among the parties before documents are made public at a 23 public trial or hearing. 24 Counsel and the parties can certainly 25 develop their cross-examination based on the disclosure
2171 of the documents to them without the documents being made 2 public. 3 Mr. Henderson and Mr. Horton seemed to 4 take the position that because certain evidence was put 5 to witnesses in cross-examination, these being statements 6 of others, that somehow all documents should therefore be 7 released to the public. 8 In response to that, I would submit that 9 that situation was very different because the witnesses 10 were being asked about events that they may have been 11 involved in or matters about which they may have personal 12 knowledge and they were being given an opportunity to 13 dispute what others had said. 14 That does not apply in all cases and, in 15 my submission, does not apply in respect of the audio 16 tapes. 17 They also seemed to be suggesting that 18 because the rules of evidence were somewhat relaxed in 19 the Public Inquiry that they should be done away with 20 completely and that documents should just be made 21 immediately available to the public. 22 If they have concerns about the manner in 23 which evidence is put to the witnesses, they have an 24 opportunity to object, to make their submissions and to 25 reply, and that's the way their concerns should be
2181 expressed. 2 In response to the question of: When 3 should the documents be made available to the public? At 4 a time to be determined by Commission Counsel. 5 Commission Counsel has been very fair and 6 courteous in inviting the Parties and their Counsel to 7 speak to them about the suggested order of witnesses or 8 about any other issues. They have tried to work 9 cooperatively with Counsel and, in my submission, they've 10 done an admirable job. 11 The Act, the rules and the practice at 12 public inquiries has been developed over many years and - 13 - and they've been developed in such a way as to ensure 14 fairness to witnesses, to the parties and to the public. 15 The purpose of the Inquiry is to allow evidence to be put 16 before the public in a dignified setting and in an 17 orderly manner that is fair to all concerned and, in my 18 submission, the way to do that is through the Inquiry 19 process. Thank you. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. Mr. Millar...? 22 23 SUBMISSION BY MR. DERRY MILLAR: 24 MR. DERRY MILLAR: Thank you, 25 Commissioner. I'll be very brief. I'm not going to
2191 repeat what I said in the submissions that we made, but I 2 just want to highlight a couple of things. 3 The obligation of Commission Counsel is to 4 be impartial, to be fair to all parties and to present 5 all of the evidence in a fair and balanced way. We are 6 here, as Commission Counsel, to represent the public 7 interest and in so doing, we are given certain powers 8 under the rules. We are given the power to determine 9 which witnesses we'll call and in what order. The 10 Parties, of course, have the opportunity to make comments 11 on that and, as Ms. Twohig said, we have sought that. 12 We have the obligation to provide and call 13 the evidence, in my submission, in an orderly and proper 14 way. Our rules, Rules 35 and 36, provide that documents 15 that are given to Commission Counsel will be kept 16 confidential; they'll only be released to people who sign 17 a confidentiality agreement; they'll only -- can only be 18 given by Counsel to their clients if they sign a 19 confidentiality agreement. 20 The documents that the Parties have given 21 to the Commission, and we have received thousands, have 22 been all made on that basis. Mr. Horton points to Rule 23 36 and says, Well, Rule 36 says that documents received 24 from a party or any other organization or individual 25 shall be treated as confidential by the Commission unless
2201 and until they're made part of the public record or the 2 Commissioner otherwise declares. 3 The Commission otherwise declares language 4 is a safety valve; a safety valve in a particular 5 situation that there is a -- as My Friend Mr. O'Marra 6 said, a matter of public safety or some other issue that 7 would permit you to have evidence disclosed, but, it is a 8 -- a safety valve that it is to be used only in extreme 9 situations. It is not a provision to be used when one 10 (1) or another Party decides that perhaps evidence should 11 be released sooner, should be used for that purpose and 12 that was not what it was intended. 13 As you have said, that no one be under any 14 misapprehension. These tapes will be introduced at this 15 public Inquiry. These tapes will be introduced subject 16 to your ruling with the -- at the appropriate time with 17 the appropriate witnesses so that the evidence is put in 18 context, so that the evidence is produced in a fair, 19 thorough and orderly fashion. Now, reasonable people can 20 differ on what is fair and reasonable and orderly. 21 And we took the view that it was important 22 in the public interest for the public to know when 23 assessing what happened at Ipperwash Provincial Park to 24 understand, firstly, the history of the people involved 25 in the dispute, the history of the land issues in this
2211 part of the province and -- and elsewhere and we called 2 historical evidence for that. 3 We also thought it important to explain to 4 the public why the occupiers occupied first the Army Camp 5 and why the occupiers occupied the Provincial Park. 6 The public, and the wider public, it is 7 important for the public, in our view, to understand 8 that. So that the public can understand why people did 9 what we -- they did. 10 And then to -- you can then move to the 11 response by the authorities, the Ontario Provincial 12 Police, the government. And you cannot -- you cannot -- 13 we're not magicians. We cannot put on a play, as Mr. 14 Klippenstein says, so that all three (3) acts are playing 15 at the same time. It is simply impossible. 16 Now, it's also, in a complex matter such 17 as this, it is very difficult and I say virtually it'll 18 be -- it would be completely unfair to the witnesses to 19 try to do it issue by issue, so that witnesses will give 20 a testimony on Day 1 and then come back on Day 15 to give 21 other -- other testimony. 22 Someone has to decide how you're going to 23 tell -- lay out the facts. And rightly or wrongly, we 24 made a decision. If we could put all three (3) acts on 25 at the same time, if we were magicians maybe you could do
2221 it, but you can't do it. You have to -- you tell the 2 story in an orderly fashion. 3 And Mr. Klippenstein doesn't agree with 4 doing the history and telling why people, from what he 5 said today, telling people why people did things but 6 reasonable people can disagree and it -- and the choice 7 was made. 8 Let me turn to -- Mr. Rosenthal said that 9 the -- and Mr. Horton said it as well, that these tapes 10 might have impact on witnesses who have testified. 11 These tapes talk about the -- are tapes 12 about the parties to the conversation. The people who 13 are being called as witnesses and have been called as 14 witnesses are here to tell us what they did, what they 15 know, what they observed, what they did from their own 16 personal knowledge, subject to traditional knowledge. 17 But in -- in the events, the keys events, 18 it's what they did, what they -- who, what, where, when 19 and why. Not what somebody else may have thought and who 20 they don't even know about and it's just not -- it 21 doesn't impact on these witnesses. 22 And it's interesting, most of the 23 occupiers of this Park are represented by Mr. Ross and 24 Mr. Ross and Mr. Scullion have taken no position on this 25 -- on this Motion.
2231 Now, we turn to the core documents. What 2 is a core document and what is a central document? 3 Ultimately, as one of My Friends said, that's what you 4 have to decide, in effect, what is the central documents, 5 what is the central evidence. 6 In my respectful submission, it's not 7 practicable to order Commission Counsel to stop it 8 preparing witnesses and evidence for the hearing and 9 direct them to identify all documents that are central. 10 Assuming that all parties can agree, we'll 11 get all seventeen (17) parties to give us a list of what 12 they think are the key documents and there are thousands 13 of them and then we'll have to sift out between all 14 seventeen (17) parties who agrees with what -- what -- if 15 this is key or that is key. 16 And I can tell you that that process will 17 take weeks, if not months, and we'll be delayed a lot 18 long -- we'll be pushed back and, in my respectful 19 submission, what we should be doing is hearing the 20 evidence of the parties who participated and the sooner 21 we do that, the -- the -- the -- we simply get on with 22 our witnesses. And, those are my submissions. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. I suppose -- what's the procedure? Do we 25 give the mover an opportunity to respond?
2241 2 REPLY BY MR. WILLIAM HORTON: 3 MR. WILLIAM HORTON: Commissioner, I 4 didn't use all my originally allocated time so perhaps I 5 saved a bit for reply but I -- I won't be long. 6 I just wanted to make a few points, 7 though. A number of the submissions that were made in 8 opposition of the Motion, I would characterize as 9 submissions that say it's never been done before and if 10 we did everything on the basis of what's been done 11 before, we would never make any progress and the surest 12 way to commit an injustice is to slavishly adhere to what 13 has been done before. 14 And so I would simply urge you to give 15 less weight to those submissions and give more weight to 16 the submissions that are, first of all, specific to these 17 tapes because there are submissions that are specific to 18 these tapes in terms of context and fairness and so on, 19 not all of which you can hear in the public session and 20 so I would simply urge you to look at it from the 21 perspective of the particular justice in this situation. 22 Now, Ms. Twohig, I'm going to go backwards 23 because that's sort of how my notes work. The first and 24 foremost relief that we're seeking is the disclosure of 25 the tapes because of why that's important. Then we're
2251 saying, if there's a problem with that, all right there 2 may be some other tapes that need to be -- other 3 documents that need to be disclosed and you can go as 4 broad as you need to, to be fair. We understand that 5 it's a principle of fairness that's going to be applied. 6 But again, the important theme that I 7 reject in the submissions made by others is that we're 8 trying to do this through anything other than the 9 inquiry. The inquiry is a multi-faceted tool that can be 10 used in ways that it has not been used before. 11 Part 2 was an innovation when it was 12 brought in. The symposia that you've held were an 13 innovation when that was brought in. The traditional 14 knowledge circle will be an innovation. 15 Simply because something's novel doesn't 16 mean that it doesn't have merit if fairness requires it 17 and so I urge you to consider it more in the context of 18 the fairness of the specific request than the question of 19 novelty or whether it's ever been done before. 20 And Ms. Twohig, I'm sure -- well, I don't 21 know because she went rather quickly over this. Part 2 22 of my relief is very clearly restricted to these 23 important class of documents that I'm talking about. 24 Counsel for the Coroner said the truth- 25 seeking process is, all truth is contextual. That's
2261 exactly the -- the premise of our -- of our Motion is 2 that the context that is provided by these documents and 3 other documents like it is very important in 4 understanding the truth. 5 Counsel for Deb Hutton -- Ms. -- Ms. 6 Hutton said, We don't want to start in the middle. We 7 want to start at the beginning. Well, if you follow the 8 process that we're on right now and if these tapes do not 9 come in any earlier, we will be hearing evidence about 10 the beginning in the middle of the Inquiry or at the end 11 of the Inquiry. 12 The time context is not necessarily 13 preserved by the approach that we're taking now because 14 the approach we're taking now is we hear from all First 15 Nation witnesses throughout the whole time sequence, then 16 the police witnesses throughout the whole time sequence 17 and so on and we're not getting what happened in the same 18 time sequence in the other parts of the world and these 19 are events that are interacting. 20 That's a very important part of our 21 submission and Ms. Hutton's counsel helps us to make the 22 point. 23 Let's hear the evidence about what 24 happened in the beginning at the beginning and so on. We 25 can't do that physically with witnesses. We can only
2271 have witness one (1) at a time but we can alleviate the 2 problem somewhat by having the documentary record 3 disclosed in the beginning. 4 With respect to the compendium, I just 5 want to say, so that it's clear, that I'm talking about 6 the process by which a set of documents is distilled from 7 a larger set of documents. I'm not using the compendium 8 process in civil litigation as a direct analogy because 9 civil litigation is not a direct analogy to an inquiry 10 process. 11 The criminal process is not a direct 12 analogy. The public inquiry process is about getting 13 information out to the public. And there are many 14 different ways to do it. And my submission is that we 15 should be open to ways that are different than what's 16 been done in the past in order to get the public more 17 information sooner so that it can assess what is going 18 on, on a day-to-day basis. 19 Because of necessity the hearing process 20 itself must be sequential. So there's a balancing that 21 can take place by revealing the important core documents 22 in the case sooner rather than later. And I recognize 23 that it's an ongoing process. 24 Just very close to the end. I think 25 that's all I'm going to say, thank you.
2281 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much, Mr. Horton. Mr. Klippenstein's a principal 3 mover so I think you should have an opportunity to 4 respond. 5 6 REPLY BY MR. MURRAY KLIPPENSTEIN: 7 MR. MURRAY KLIPPENSTEIN: Thank you, 8 Commissioner. I would just make two (2) or three (3) 9 points. just for clarification. That the family's 10 position and motion is focussed on these particular tapes 11 and that is their focus. 12 Ideas like the compendium I think are 13 useful ideas to consider. But the relief that is 14 requested is the release of the tapes and the family 15 thinks that that is of itself a fundamental step that 16 doesn't necessarily open up all the questions that people 17 have suggested. 18 I would also refer to the various 19 representatives from various parties who have tended to 20 point to examples of other inquiries and say this Inquiry 21 should be conducted like that one. Or to say that the 22 general procedural rules and concepts from civil trials 23 are generally useful here and even from criminal trials. 24 And I don't disagree that those are useful 25 sources for ideas in thinking an experience. But the
2291 problem we have here is that many of the parties seem to 2 like -- that's perhaps unfair, support the idea of in 3 effect delaying the release of these tapes. And in this 4 case we are here because Dudley George was shot and it's 5 because some of those processes failed, that's why we're 6 here. 7 Some of the testimony has been that the 8 people who were in the Park didn't have any confidence in 9 the courts. They went into that Park and into the -- 10 into the military base because they had no confidence in 11 the processes as they had existed. So we should be 12 careful that we not look at what other processes are as 13 the solution to the problem that put us here in the first 14 place and not repeat that. 15 And what we are suggesting is that a small 16 mid-course correction at this point which is the release 17 of the tapes, can help, not radically change the way an 18 inquiry is conducted, but to make sure this Inquiry is on 19 the course that the events that caused it, point us in. 20 And finally, Mr. Millar suggested that it 21 would be frustrating or impossible for the Inquiry 22 Commission counsel to conduct all three (3) acts of the - 23 - of the play at the same time, and that's not what we're 24 asking. 25 But to have the witnesses as they follow
2301 the general process that Commission counsel has with 2 great consideration, laid out, be aware of some of the 3 absolutely fundamental and unprecedented things that 4 happened according to the evidence in these tapes while 5 they were giving testimony is, in our submission, 6 fundamental to the very process that the Commission 7 Counsel has set out. Thank you. 8 COMMISSIONER SIDNEY LINDEN: Thank you, 9 Mr. Klippenstein. That concludes the public part of this 10 Motion. 11 My intention is write a decision and to 12 release it, hopefully, when we next convene for the next 13 hearing but I can't guarantee that, so, we'll probably 14 put on the website the date that the decision will be 15 released but my intention is to have it -- release the 16 decision when we next convene, which is a week from now. 17 I will make my decision orally and I will release it at 18 the same time. 19 MR. PETER ROSENTHAL: Mr. Commissioner, 20 what about the in-camera portion? 21 COMMISSIONER SIDNEY LINDEN: Yes, we're 22 going to do that now. 23 MR. DERRY MILLAR: We thought that we 24 should the members of the public and the press who may 25 not be here what's going to happen. I'm not certain that
2311 -- if it's still necessary for the in-camera part if Mr. 2 Klippenstein and Mr. Rosenthal and Mr. Horton wish -- 3 then what we're going to have to do, Commissioner, is 4 break for about five (5) minutes so that the -- all of 5 the various audio feeds have to be shut down -- 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. DERRY MILLAR: -- and video feeds, so 8 that we are then in-camera. 9 COMMISSIONER SIDNEY LINDEN: We have to 10 give people a chance to leave as well. 11 MR. DERRY MILLAR: Yes. 12 COMMISSIONER SIDNEY LINDEN: So I assumed 13 that, that's why I made that statement, so that it would 14 be heard by everybody. The decision will be public as 15 soon as possible, hopefully within a week. 16 MR. DERRY MILLAR: I presume that we 17 would just simply carry on and finish tonight. I'm not 18 certain how long anybody's going to be in-camera. 19 Mr. Klippenstein says ten (10) or fifteen 20 (15) minutes; Mr. Rosenthal already said about two (2) 21 minutes. Mr. Horton? Fifteen (15). 22 I would suggest, Commissioner, that we 23 finish unless anybody has any major objection because we 24 take ten (10) minutes to get things organized and then we 25 could be done, hopefully, by 5:30.
2321 COMMISSIONER SIDNEY LINDEN: I'd prefer 2 to that if you -- if you can handle it. Can you handle 3 it, the court reporter? All right, let's take ten (10) 4 or fifteen (15) minutes and reconvene and get it done. 5 MR. DERRY MILLAR: Oh, Mr. Sandler has 6 five (5) minutes, he told me. 7 8 (BRIEF PAUSE) 9 10 MR. DERRY MILLAR: Perhaps -- perhaps, 11 Commissioner, before we break, Mr. Sandler indicated he 12 had about five (5) minutes. I don't know if anyone else 13 -- I guess it will depend in part what My Friends say in 14 their submissions in-camera, whether anyone else is going 15 to -- anyone's going to reply, but, I would have thought 16 that if My Friends on the moving side are going to be 17 approximately a half hour that on the other side, they're 18 not going to be that much longer, if that long, and we 19 could still finish it today. 20 COMMISSIONER SIDNEY LINDEN: We should 21 finish by six o'clock. Now, the alternative is to do it 22 in the morning but I understand Mr. Sandler's not here. 23 MR. MARK SANDLER: No, no, I've made 24 arrangements. 25 COMMISSIONER SIDNEY LINDEN: Is there --
2331 are you -- 2 MR. MARK SANDLER: Remember, I originally 3 asked for the motion to be tomorrow so -- 4 COMMISSIONER SIDNEY LINDEN: Okay. Is 5 that an alternative, to do it at nine o'clock in the 6 morning, the in-camera part? 7 MR. DERRY MILLAR: Well, I would -- I 8 would -- well, I'm in your hands, but it seems to me, we 9 have Mr. -- Mr. Simon will be -- is coming back at nine 10 o'clock tomorrow morning and I think that it would be 11 beneficial to simply finish this now, but -- 12 COMMISSIONER SIDNEY LINDEN: Let's try. 13 Let's take a ten (10) minute adjournment and reorganize 14 and try and finish it tonight. 15 MR. DERRY MILLAR: And, Commissioner, 16 yesterday it was -- you decided that members of clients 17 who had signed the undertakings could stay and I would 18 ask Counsel if they could sort that out among the members 19 of the public and the other members of the public who 20 will have to leave. I regret that, but that's -- 21 COMMISSIONER SIDNEY LINDEN: The nature 22 of an in-camera proceeding. 23 MR. DERRY MILLAR: -- that's the nature 24 of an in-camera proceeding. 25 COMMISSIONER SIDNEY LINDEN: We will rely
2341 on Counsel to identify those Parties who have signed the 2 agreement. 3 MR. DERRY MILLAR: Yes. 4 COMMISSIONER SIDNEY LINDEN: And they'll 5 be allowed to stay. 6 MR. DERRY MILLAR: Yeah, thank you. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much. 9 THE REGISTRAR: This Inquiry is recessed 10 for ten (10) minutes. 11 12 --- Upon recessing at 4:45 p.m. 13 14 (REMAINDER OF TRANSCRIPT IN-CAMERA - SEALED) 15 16 17 18 Certified Correct 19 20 21 22 _________________________ 23 Wendy Warnock 24 Court Reporter 25