1 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, 2005 25


1 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) (np) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)


1 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) (np) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) (np) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)


1 APPEARANCES (cont'd) 2 Julian Falconer ) (np) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) (np) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) (np) Chiefs of Ontario 13 Matthew Horner ) (np) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) 19 Erin Tully ) (np) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25


1 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 TIMOTHY ST. CLAIR MCCABE, Resumed 6 Continued Cross-Examination by Mr. Murray Klippenstein 7 7 Cross-Examination by Mr. Peter Rosenthal 130 8 Cross-Examination by Mr. Kevin Scullion 271 9 Cross-Examination by Mr. Jonathan George 289 10 Cross-Examination by Mr. Julian Roy 296 11 Cross-Examination by Mr. Kim Twohig 386 12 13 14 15 16 Certificate of Transcript 399 17 18 19 20 21 22 23 24 25


1 EXHIBITS 2 No. Description Page 3 P-757 Document Number 1012402. E-mail from 4 Leith Hunter to various re. Ipperwash 5 Sept. 15/'95. 145 6 P-758 Document Number 1011625. ONAS support 7 group meeting notes, Sept. 18/'95. 150 8 P-759 Document Number 1011957. Memo to 9 Tim McCabe from E. Christie Re. 10 Ipperwash Provincial Park Injunction - 11 effect of delay by Ontario in Pursuing 12 the injunction Sept. 18/'95. 152 13 P-760 Document Number 1012041. Memo from Lois 14 Lowenberger to Tim McCabe et. al. 15 attaching a revised list of questions and 16 answers for the Minister Harnick 17 (Attorney General) Re. Ipperwash, 18 Sept. 25/'95. 160 19 20 21 22 23 24 25


1 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. Good morning, Mr. Klippenstein. 8 MR. MURRAY KLIPPENSTEIN: Good morning, 9 Commissioner, thank you. 10 11 TIMOTHY ST. CLAIR MCCABE, Resumed 12 13 CONTINUED CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 14 Q: Good morning, Mr. McCabe. 15 A: Mr. Klippenstein. 16 Q: Mr. McCabe, I was asking a few 17 questions at the end of the day yesterday, trying to get 18 a sense of some of the timing of events on the morning of 19 -- and early afternoon of September 6th, 1995 and I just 20 want to ask a few more clarifications about those, 21 particularly, to get an idea of the sequence of 22 instructions and so forth. 23 I would like to begin by directing you to 24 Tab 19 of the Commission documents binder which is the 25 meeting notes of Julie Jai. And at Tab 19 I would ask


1 you to turn to the handwritten page 3 which is according 2 to the evidence, part of Ms. Jai's notes taken during the 3 September 6th morning -- morning IMC meeting. 4 Do you have that, page 3? 5 A: Yes. 6 Q: And a quarter of the way down you see 7 the 'Tim'? 8 A: Yes. 9 Q: And I'd just like to go through part 10 of that page and see whether you have any reason to 11 disagree with any of the recording. 12 A: Right. 13 Q: First of all, the notetaker Ms. Jai 14 says: 15 "Tim: Ministries can say..." 16 Do you see that? 17 A: Yes. 18 Q: I'll just selectively identify some - 19 - some points here. The second bullet point says: 20 "Not a case for ex parte injunction." 21 Do you see that? 22 A: Yes. 23 Q: And that appears to be Ms. Jai's 24 recording of what you said at the meeting and Ms. Jai 25 testified she wrote fast and wrote while people -- people


1 were writing. But, from what you've said, it appears to 2 me that that line would give you no cause concern -- for 3 concern about the accuracy of -- of what it records in 4 terms of what you were saying; is that fair? 5 A: Yes, that's fair. 6 Q: And then the next bullet point says: 7 "Should give notice but we could go 8 into court to seek an abridgement of 9 the three (3) days notice." 10 So, that appears to say as you said before 11 that you should give notice but you can get it abridged. 12 So, would -- would you have any reason to disagree with 13 that record? 14 A: No. 15 Q: Then there's various other points and 16 then the last bullet point under your name says: 17 "Best case Friday in court." 18 Do you see that? 19 A: Yes. 20 Q: And as a matter of fact, that phrase 21 "Best case Friday", appears in the notes of quite a few 22 note takers of that meeting, and I -- I surmise, to use 23 the word you used, that you probably don't have reason to 24 doubt the accuracy that you said that? 25 A: No, I don't.


1 Q: And so that at point, as you said 2 before, you were apparently telling the meeting, this was 3 the procedure you proposed and the 'best case', to use 4 your words is you'd be arguing the case in court on 5 Friday, right? 6 A: Yes. I think that's right. 7 Q: Then if you look at the notes, you 8 see the word 'Deb'? 9 A: Yes. 10 Q: And the notes appear to say: 11 "Premier feels the longer they occupy 12 it, the more support they'll get. He 13 wants them out in a day or two (2)." 14 Do you see that? 15 A: Yes. 16 Q: Do you have any recollection of Ms. 17 Hutton saying that? 18 A: I don't believe I do. I -- I've read 19 these notes and I've read some other notes and -- and 20 I've -- so accordingly I've read what is recorded and I 21 don't have any reason to doubt that it -- these exchanges 22 are recorded accurately. But, I don't have a kind of 23 independent recollection of the event. 24 Q: All right. Well, since we've heard 25 evidence that that was accurate, according to Ms. Jai,


1 and you disagree, for purposes of my question I'll -- 2 I'll base my questions on that -- that assumption. 3 I -- I realize that's -- you don't 4 disagree with the accuracy of those comments? 5 A: Right. 6 Q: Correct. Then, after that comment 7 your name appears: 8 "Tim: That suggests we should proceed 9 under the Code." 10 A: Yes. 11 Q: And that appears to be recording that 12 in response to Ms. Hutton's comments, you say that that 13 suggests we should proceed under the Criminal Code; is 14 that fair? 15 A: Yes. 16 Q: And then, Ron, which would be Ron 17 Fox, is reported as making several comments; do you see 18 that? 19 A: Yes. 20 Q: And of the several bullet points -- 21 points recorded, the fifth one is: 22 "Feels it's imprudent to rush in." 23 Do you see that? 24 A: Yes. 25 Q: And do you have any reason to


1 disagree with the accuracy of that record of what Ron Fox 2 said at that point? 3 A: No. 4 Q: Okay. Then, turning to the next 5 page, after that discussion, on page 4, near the bottom, 6 there's a line that says: 7 "Agreed..." 8 A: Yes. 9 Q: You see that? 10 A: Yes. 11 Q: And it says: 12 "Agreed we will seek injunction ASAP 13 Friday." 14 You see that? 15 A: Yes. 16 Q: And now, Ms. Jai testified to the 17 effect that she was recording what she perceived or hoped 18 to be something of a consensus as a result of the 19 discussion. 20 And whether that actually was a real 21 consensus is another matter, but she appears to be 22 recording what you suggested, which was be in court on 23 Friday, right? 24 A: Yes. 25 Q: And she at least records that as a


1 some kind of agreement, right? 2 A: Apparently so, yes. 3 Q: Now, I think you've testified that 4 you left this meeting on the 6th more or less assuming 5 that the plan you recommended was what you were going to 6 implement. 7 In order words, you would work on the -- 8 finish working the materials on Wednesday, serve them on 9 Thursday and be in court on Friday; is that right? 10 A: I -- I believe so, yes. 11 Q: Yeah. Now, you would have heard, as 12 you've suggested, Ms. Hutton expressed these comments 13 about the Premier's wishes, but I think you said you -- 14 can take into consideration Ms. Jai's notes about what 15 was, in her view, somewhat agreed to. 16 You, I think, said you were probably going 17 back to your office on the assumption you'd be preparing 18 -- finishing preparing materials, serving them the next 19 day, Thursday, and be in court on Friday; is that fair? 20 A: I -- I think that's right. That was 21 certainly my hope. I knew that it was time to prepare 22 the materials. 23 Q: Okay. Or finish them, because they 24 were already in -- to some extent, in prep.? 25 A: Yes.


1 Q: Is that fair? 2 A: Again, you know, exactly when that 3 affidavit arrived from Leith Hunter of MNR, I don't know. 4 But, yes, prior -- you know, by Wednesday afternoon the 5 preparation of that affidavit was certainly in train, 6 yes. 7 Q: Right. However, then at some point 8 in the early afternoon you received new instructions 9 which came to you via Elizabeth Christie, who got them 10 from Larry Taman. 11 Is that, to the best of your understanding 12 now, fair? 13 A: That -- that's exactly the way to put 14 it, that's to the best of my understanding, now. I don't 15 have, you know, a specific recollection of how that came 16 about on the afternoon of the 6th of September. 17 Q: All right. But, that's a fair 18 summary at this point? 19 A: Yes. 20 Q: Now, I'd like to just try and get a 21 better sense of the timing of when that happened. And 22 the evidence has shown that at two o'clock Ron Fox called 23 Inspector Carson to talk about the injunction and 24 evidence. 25 And at that point, at two o'clock on the


1 afternoon of the 6th, Inspector Fox says that he's talked 2 to you and that there's talk of an ex parte injunction 3 and that you might want to speak with Carson about the 4 evidence. And that -- and it appears that you had spoken 5 with Inspector Fox and basically suggested he call. 6 Does that seem fair to you? 7 A: Yes. I -- I certainly remember 8 talking to Inspector Fox on Bay Street. I -- I think I - 9 - we touched on this yesterday as -- as Elizabeth and I 10 and Fox walked from the meeting to my office. 11 Q: Right. 12 A: And I think I went through with him, 13 sort of, the three (3) aspects of the matter that I 14 needed to speak to the OPP about. 15 Q: Right. Now, the evidence appears to 16 be that Mr. Fox subsequent to that walk and conversation 17 with you was called into a meeting attended by the 18 Premier and others. And -- and then a note of Ron Fox's 19 conversation talks about a decision on ex parte. 20 So, I am suggesting or asking you if it 21 makes sense to you that you would have spoken with Ron 22 Fox again after your walk, but before his two o'clock 23 phone call because at two o'clock he was already speaking 24 about an ex parte injunction. 25 Is it possible you spoke with Ron Fox


1 again after that to say, Can you call Inspector Carson 2 and talk about an ex parte injunction? 3 A: Yeah, I have no recollection of doing 4 that but you know -- you know, accordingly I can't 5 discount the possibility, you know. 6 Q: And in that conversation at two 7 o'clock Ron Fox talks about possibly having Inspector 8 Carson testify either that -- the next day the 7th or the 9 evening of the 6th. 10 So, since you didn't know -- you didn't 11 know about those possible court dates when you left the 12 meeting of the 6th, you must have spoken to him after you 13 got new instructions through Elizabeth Christie; is that 14 fair? 15 MS. KIM TWOHIG: Mr. Commissioner, I 16 think there are several other possibilities as to what 17 might have happened and I'm not sure this is a fair 18 question for the Witness. 19 COMMISSIONER SIDNEY LINDEN: Well, he's 20 putting a possibility to him. I'm not sure how -- 21 MS. KIM TWOHIG: I have no objection if 22 he says is it possible. But when he says 'you must have' 23 I think that's slightly different. 24 COMMISSIONER SIDNEY LINDEN: That's a bit 25 strong, yes.


1 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: All right. Let me take a step back. 4 COMMISSIONER SIDNEY LINDEN: If you can't 5 recall these then you can't, you know. 6 MR. MURRAY KLIPPENSTEIN: Right. 7 COMMISSIONER SIDNEY LINDEN: I mean 8 that's, a simple answer, as you know. I don't need to 9 tell you that. 10 11 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 12 Q: When you left the meeting on the 6th 13 you were not preparing for an ex parte injunction as 14 such; is that fair? 15 There's no indication that -- that you 16 were. You don't recall that? 17 A: I think that's probably right, yes. 18 Q: On the other hand once you'd heard 19 from Ms. Christie the new instructions that involved this 20 accelerated court appearance, you testified you concluded 21 that you had to go ex parte. 22 A: Yes. 23 Q: And it wasn't as if somebody said, Go 24 ex parte, it was a necessary implication of the essential 25 timetable or immediacy that you'd been given, right?


1 A: Well, I'm not sure whether somebody 2 said, you know, again, I may have touched upon this 3 yesterday, but I'm not sure whether somebody said, Be in 4 court tomorrow and by the way, follow the ex parte rule, 5 or whether somebody just said, Be in court tomorrow, and 6 I followed the ex parte rule because I thought it was 7 really the only -- the only alternative. 8 Q: Well, not only discussion of, Be in 9 court tomorrow, but there was discussion of, Be in court 10 tonight, and in fact according to Ms. Christie, Be in 11 court this afternoon. 12 In fact in any of those three (3) 13 scenarios, is it fair to say you would have concluded and 14 did conclude it had to be ex parte? 15 A: In any of those scenarios, yes. 16 Q: So, it doesn't really matter whether 17 somebody said do it ex parte. The fact that your 18 instructions were try this afternoon, try this evening, 19 try tomorrow morning, ex parte was the only, right? 20 A: From my point of view it didn't 21 matter. 22 Q: Yeah. 23 24 (BRIEF PAUSE) 25


1 Q: And is it fair to say that the new 2 instructions, if you will, that you got through Elizabeth 3 Christie, which talked about, possibly in court that 4 afternoon, on the 6th, or -- or that evening, were a 5 pretty big change in your instructions in terms of -- 6 it's only a couple of days, but in terms of how you 7 proceed and the effect it would have on you as a 8 litigation lawyer. 9 That's a big change; is that fair? 10 A: Yeah, I think the word 'change' is 11 maybe questionable in the -- in the context because I -- 12 that suggests that I already had instructions to the 13 contrary, I think. So -- but -- 14 Q: Would -- would new instructions or -- 15 or instructions be appropriate, I don't mean to suggest-- 16 A: Right. Well, yes -- 17 Q: Or let me put it this way: Before 18 Ms. Christie came in you didn't have specific 19 instructions about when and how to do it? 20 A: I think that's right, yes. 21 Q: After Ms. Christie came in you had 22 instructions that essentially said, An immediate 23 injunction; is that right? 24 A: I -- I think that's the case, yes. 25 Q: Okay.


1 A: Again, as -- as I said, I do -- I 2 don't have, you know, really an independent recollection 3 of -- of how these things came about in the early 4 afternoon of September the 6th. And it's, you know, it's 5 really what I -- what I've been told by Elizabeth -- 6 Q: Yeah. 7 A: -- her recollection of -- of the 8 course of events. 9 Q: Okay. Now, is it -- is it fair to 10 say, I suggest to you, that given, first of all, your 11 discussions this -- this morning, on the 6th of September 12 '95 -- 13 A: The early morning meeting? 14 Q: Including that. 15 A: Right. 16 Q: And the discussions in the IMC 17 meeting, the comments that Deb Hutton made, apparently 18 speaking for the Premier. And then Ms. Christie coming 19 in to your office apparently, and saying, Injunction 20 immediately, possibly this aft. or at least this evening 21 or tomorrow morning. 22 You'd been around in the civil service and 23 government long enough to be aware that -- that these 24 instructions were pretty much originating from the 25 Premier, given everything you'd seen and heard; is that -


1 - is that fair? 2 A: You know, I don't think I gave it a 3 moment's thought, you know, where these instructions were 4 emanating from. I'm afraid I could be accused of tunnel 5 vision in this respect, but I was concerned about what I 6 needed to do over the next few hours. And I, you know, I 7 really don't think I was giving a great deal of 8 consideration to these -- these questions that seems -- 9 looms so large now. 10 Q: Okay. But it was clear to you your 11 instructions were to get an immediate injunction? 12 A: Yes. 13 14 (BRIEF PAUSE) 15 16 Q: Now, let's go back to the notes of 17 Ms. Jai for the 6th, which I put before you, and page 3, 18 handwritten page 6 of the September 6th notes. I want to 19 focus now on the comments attributed to Ms. Hutton 20 communicating the Premier's wishes. 21 Do you see those? 22 A: Yes. 23 Q: Yeah. Now, you describe, according 24 to these notes, according to the evidence, your scenario, 25 your -- your best estimate of the procedures to follow


1 and you finish with, Best case Friday in court. 2 It appears Ms. Hutton responded to your -- 3 your suggestion and responded with the comment that, The 4 Premier wants the protestors out of the Park in a day or 5 two (2)? 6 A: Yes. 7 Q: Now, then it appears that you 8 responded to that by saying, That suggests we should 9 proceed under the Criminal Code? 10 A: Yes. 11 Q: And is it fair for me to conclude 12 that what you were thinking and saying at that point was, 13 If the Government or the Premier wants us to have them 14 out of the Park in a day or two (2), my recommended 15 procedure is not the best option? 16 A: Yes. I think this is my -- again, 17 this is surmised, you know, from -- from the vantage 18 point of ten (10) years later, but I think this is my way 19 of saying, Well the civil injunction, in all likelihood, 20 is not going to have the people out of the Park in a day 21 or two (2). 22 And I -- you know, and I -- I think I'm, 23 at this stage, relying on others in the room, probably, 24 Fox and Hutchison to point out that the provisions of the 25 Code are unlikely to have that result, either.


1 Q: And can I take it that the reason you 2 said what you said about, We proceeding under the Code, 3 is that in a Criminal Code situation you can arrest 4 somebody which is a physical removal, correct? 5 A: Yes. 6 Q: And you weren't in there, in that 7 comment, going through all the attendant problems that 8 that rose -- raises, but you were saying physical removal 9 is a feature of the Code and you won't get that with a 10 civil injunction in a day or two (2); is that fair? 11 A: That's correct. Again, this is what 12 I think was probably going through my mind when I made 13 the -- this interjection that's recorded here. 14 Q: Well, let me suggest that what you 15 think was going through your mind made sense, because -- 16 and I want to ask you about that. 17 When I asked Ms. Jai about this, I asked 18 her specifically about the word 'out' -- 19 A: Right. 20 Q: -- and the time limit, using her 21 words, of a day or two (2) and the idea that the Premier 22 apparently wanted them out of the Park in a time period 23 of one (1) or two (2) days. 24 And I take it from your point of view, as 25 a -- as a civil litigator, you are aware -- you were


1 aware of the basic two (2) categories, I would suggest, 2 or concepts, of getting an injunction and then 3 implementing or enforcing it, whatever you want to call 4 it. 5 Those are two (2) distinct phases, if you 6 will; is that fair? 7 A: Yes. 8 Q: And in your previous comments, when 9 you said, Best case Friday in court, you were thinking of 10 the first part of that, which is getting the order; is 11 that right? 12 A: That's right. 13 Q: And so your -- your general view was 14 that you could perform some good work for the Government. 15 You would not take the normal three (3) days of notice, 16 you would abridge the notice. You would still try to 17 serve. 18 A: Yes. 19 Q: You would avoid the risks of an ex 20 parte Motion and you could probably be in Court on Friday 21 with a chance of getting the injunction on Friday; is 22 that fair? 23 A: That's correct. 24 Q: What you hadn't yet talked about was 25 enforcement of that order after Friday, right?


1 A: Yes. 2 Q: And so you could see that not only 3 was your fast track injunction plan not meeting the 4 Premier's express wishes, but that didn't even take into 5 account the enforcement of the order; is that fair? 6 A: Well, I think that's really the same 7 point. 8 Q: All right. Sorry I -- repetitiveness 9 is something I'm prone to. 10 So, that's why you said, Well, that means 11 Criminal Code, right? 12 A: Yes. 13 Q: Now, I took you yesterday to 14 handwritten notes of Larry Taman that talked, also, about 15 removal within twenty-four (24) hours. 16 Do you recall that? 17 A: Yes. 18 Q: And similarly, if that was the desire 19 of the Premier, then actual removal of the protesters 20 from the Park within twenty-four (24) hours was a 21 formidable task to accomplish by an injunction; is that 22 fair? 23 A: Yes. 24 Q: In fact, it was probably impossible 25 by an injunction; is that fair?


1 A: Impossible is a big word, but pretty 2 close to it. It -- it would be difficult to envision 3 that occurring, yes. 4 Q: Okay. Now, you -- there was some 5 discussion about enforcement of an injunction Order in 6 these meetings, according to some of the notes. 7 Do you recall any of that? 8 A: You know, I don't think I recall. I 9 -- I do recall in the last few days reading notes, and I 10 -- I'm not sure who's notes but I think, yes, there is a 11 -- there is a recorded exchanges concerning that, yeah. 12 Q: Okay. Did you -- you mentioned in 13 your evidence yesterday that there was one (1) scenario 14 of enforcement of an order. I'll use the word 15 'implementation' instead because it's a little general -- 16 more general and broader, I don't want to get lost in 17 detail. 18 But, in which it was your understanding 19 that the OPP sometimes would -- would like to have an 20 injunction to inject into the discussions with blockaders 21 or protestors as a way of diffusing the situation; is 22 that right? 23 A: Yes. That was my impression over the 24 years, yes. 25 Q: And so it was a tool or part of the


1 equation of discussion in that scenario, right? 2 A: Yes. 3 Q: Yeah. Had you thought about 4 enforcement or implementation of the order that you were 5 instructed to seek in the context of September 6th and 6 7th in any detail? 7 A: No. I don't think I -- I, you know, 8 considered the matter in any detail. I'm sure it crossed 9 my mind that there is a, as you put it, this second stage 10 to the matter that is -- that is going to have to occur. 11 Q: And -- 12 A: And -- 13 Q: Go ahead. Sorry. 14 A: Go ahead. I -- no, I -- proceed. 15 Q: And did you think at all about -- I 16 should say at all -- did you give any consideration, 17 significant consideration, that you can recall, to the 18 question of whether the injunction that you would obtain 19 if you were successful, how that would be implemented in 20 the period that Ms. Hutton conveyed from the Premier, a 21 day or two (2), or the twenty-four (24) hour period we've 22 seen in Mr. Taman's notes? 23 A: I, you know, I can't remember giving 24 that any -- any, you know, specific consideration. You 25 know, knowing my failings and what not, I probably would


1 have consigned that to the category of something to do 2 when we reach that bridge. 3 Q: And it's -- is it fair to say that as 4 -- as of this time when you had gotten your -- your 5 instructions in the early afternoon of September 6th, you 6 were quite rushed simply to carry out the preparation and 7 -- and argument of -- of the injunction itself? 8 A: I'm sure that's true, yes. 9 10 (BRIEF PAUSE) 11 12 Q: How is an injunction enforced 13 normally, if there is such a thing as normally? 14 A: I don't think I can speak 15 authoritatively on how an injunction is enforced 16 normally. I -- I have a -- a recollection of a 17 provision, it's either in the Courts of Justice Act or in 18 the Rules, probably in the Rules, about -- about the 19 sheriff, as he's -- that office used to be called. I 20 don't think it is anymore. 21 But, the sheriff and -- seeking the 22 assistance of a police officer in the -- in the 23 enforcement of -- I -- and I think the word 'enforcement' 24 is used, in fact, in the -- in the rule. 25 Q: And so you had -- is it fair to say


1 you had some general idea along that lines -- those lines 2 of -- of the enforcement of -- of the injunction order 3 that you were seeking at that time? 4 A: Well, I -- I was aware of that 5 provision. 6 Q: Yes. And had you made any specific 7 plans, you or Ms. Christie to your knowledge, made any 8 specific plans about what would happen when you got the 9 injunction in terms of either dealing with the sheriff or 10 dealing with the OPP for enforcing the order? 11 A: No. You know, I -- I think at -- at 12 that stage events would have -- you know, it wouldn't be 13 my call or Ms. Christie's call as to what to do with the 14 -- with the injunction order at that point. 15 I mean, I think our -- our concern, if -- 16 if an order was granted, we would convey that information 17 to, you know, to our ministry and await further events. 18 Q: I see. So, you were focussed on 19 obtaining the injunction which I understand would be 20 enough of a task in itself and you didn't have a plan for 21 followup or implementation or enforcement of the order; 22 is that fair? 23 A: No. 24 Q: Okay. And do you know -- according 25 to the plan and this is actually pretty much what


1 happened, you finished your court hearing in the morning 2 of the 7th or around about noon, the judge made himself 3 available to sign the order once you'd typed it out or 4 had it typed out and so forth. 5 So, you actually hoped and anticipated you 6 would have the final order in the early afternoon of the 7 7th; is that right? 8 A: You're speaking now prior to the 9 hearing I anticipated having the order by early in the 10 afternoon? 11 Q: Let's put it that way for now, yes. 12 A: Yes, I -- I think to the extent that 13 we, you know, would have foreseen what was going to 14 happen that day that would have been our expectation. 15 You know, probably more so prior to hearing of the event 16 the night before at the Park. 17 You know, after that, you know, with -- 18 without trying to be too dramatic about it, you know, in 19 a sense all bets are off. I mean, you know, it's not, 20 you know, entirely foreseeable even to the extent that it 21 -- that it is in litigation generally. At that stage, 22 you know, there are even more imponderables that are 23 inserted into the piece. 24 Q: Sure. Then I had raised questions 25 earlier about part of the motion record which was filed


1 with the court requesting a particular order. I wonder 2 if you could turn to -- to that in your white -- in your 3 thick Commission document binder. And that's at Tab 35 4 which is Exhibit Number P-551. 5 A: Yes. 6 Q: And at page handwritten 7 of that 7 document -- 8 A: Yes. 9 Q: -- is paragraph 3 of the order that 10 you were actually seeking; is that right? 11 A: Yes. 12 Q: And I had asked some questions of Ms. 13 Christie about that, and as I understand your evidence 14 and if I can just seek clarification on that, essentially 15 that paragraph originated in the Beardmore injunction 16 application. 17 Is that probably fair? 18 A: Yes, that's probably true. 19 Q: And you must have basically pulled 20 it, or had Ms. Christie or your assistant pull it off the 21 computer from the previous injunction you'd worked on; is 22 that fair? 23 A: Well I'm not sure that that was the 24 way it happened. But, I -- I probably would have -- 25 Q: Or maybe you had still had it lying


1 around in your office from four (4) years before and 2 hadn't cleaned up the file or something like that. 3 A: It -- it could very well be that I 4 pulled out that file and -- and -- 5 Q: Okay. 6 A: -- got a copy of the earlier notice 7 of motion, the earlier order and -- and marked it up and 8 it included it in this -- in this one. 9 Q: And there are a number of changes to 10 that -- to that paragraph from the previous wording which 11 you had identified in the Beardmore materials which were 12 made Exhibit P-748. 13 And one of the changes is -- and if you -- 14 if you perhaps could have that Beardmore motion record 15 handy left over from yesterday. 16 A: Is it in the binder? 17 Q: I don't think so. I'm just checking. 18 19 (BRIEF PAUSE) 20 21 Q: Document 3000425. I understand we 22 have an exhibit copy and I wonder if -- that's Exhibit -- 23 Exhibit P-748. 24 THE REGISTRAR: P-748. 25


1 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: Yes. That could be for Mr. McCabe, 3 for ease of reference. Thank you very much. 4 5 (BRIEF PAUSE) 6 7 Q: And I'm looking at the paragraph 3 of 8 that order sought in the motion record, which is at page 9 3 of the -- of the motion record, as I see it. 10 A: Yes. 11 Q: And essentially in the Ipperwash 12 injunction one (1) of the changes you made was that you 13 switched the wording -- in paragraph 3 of the Beardmore 14 application it says: 15 "An order that such officers, agents 16 and servants of the Ministry of Natural 17 Resources of Ontario." 18 You see that? 19 A: Yes. 20 Q: And in the Ipperwash injunction you 21 changed that from, "Ministry of Natural Resources" to 22 "the Government of Ontario"; do you see that? 23 A: Yes. 24 Q: Which is a broader -- significantly a 25 broader group of people, right?


1 A: Yes. 2 Q: And then in the Beardmore application 3 you say: 4 "That are directed to do so by the 5 Minister or Deputy Minister of Natural 6 Resources." 7 A: Yes. 8 Q: In the Ipperwash injunction you 9 changed that to: 10 "Any minister or deputy minister." 11 Right? 12 A: Yes. 13 Q: Which is also a significantly broader 14 or larger group; is that right? 15 A: Yes. 16 Q: Now, I take it that you made those 17 changes; do this yourself, correct? 18 A: Yes. 19 Q: Yeah. 20 A: I made the changes and, as I think I 21 -- I mentioned yesterday, I'm not sure whether that was 22 entirely my idea. I wouldn't discount a possibility, 23 though I have no recollection, of MNR lawyers having some 24 input into that. 25 Q: And, to the extent you can recall, if


1 MNR lawyer had some -- first of all, do you know which 2 lawyers we'd be talking about there; is it Leith Hunter, 3 or...? 4 A: Leith Hunter was -- it was she who 5 was preparing the affidavit and so I would have been in - 6 - in contact with her, clearly. 7 Now, at this stage I'm not sure whether -- 8 probably the only other lawyer that I would have had 9 contact with concerning this would be Andrew McDonald -- 10 Q: Right. 11 A: -- not necessarily but -- but, you 12 know, and at this stage I can't remember whether Andrew 13 was on his secondment to the Ministry of the Attorney 14 General or whether he was in fact an MNR lawyer at this 15 point. 16 So, the answer -- I'm not -- if I dealt 17 with a lawyer, I don't have any recollection of dealing 18 with it. The most likely candidate I suppose would be 19 Leith Hunter. 20 Q: And to the extent you can recall or 21 infer, if those changes were requested or suggested by 22 MNR people, they were broadening the group of instructors 23 and instructees in -- under this order; is that right? 24 A: Yes. If they were. 25 Q: Can you --


1 A: But, I just raise this as a 2 possibility. I -- 3 Q: Can you -- 4 A: -- yeah. 5 Q: -- can you give me any idea why you 6 consider that as a possibility and why it may have been 7 done? 8 A: No. 9 Q: And if it wasn't them and it was your 10 own idea -- 11 A: Right. 12 Q: -- do you have any idea why you made 13 that change? 14 A: I don't. I don't. 15 Q: Okay. And would you agree with me 16 that those -- the change order now permits any minister 17 to direct any employee of the Government to go into the 18 Park with the authority of the court. 19 And permits and requires those employees 20 under the clothing of a court order to clear out 21 materials such as camping equipment put there by the 22 protestors; is that right? 23 A: Yeah. On the face of it, it does. I 24 should say that I'm sure that what I had in mind here, as 25 in the case of the Beardmore motion, that this, what's


1 intended here is events after the -- after the people in 2 -- who are, in the case of Ipperwash, who are in 3 occupation of the Park have left, that this is, you know, 4 the removal of any property that -- that the people may 5 have left behind. 6 Q: If that was your intention, that is 7 not clear or contained at all within paragraph 3; is that 8 fair? 9 A: I think that's fair, yes. 10 Q: In fact, it's not anywhere in the 11 Order sought; is that right? 12 A: Right. 13 Q: And so that paragraph could be 14 implemented in a way that you didn't intend at the time; 15 is that fair? 16 A: Well, you know, I -- this -- I think 17 that would be very unlikely and, you know, I think it -- 18 you know, the suggestion requires taking a very low view 19 of the -- you know, the prudence and good sense of the 20 Government of Ontario and any minister or deputy 21 minister. 22 Q: I see. But the evidence is that the 23 Premier's representative had just said the Premier wants 24 them out of the Park in a day or two (2) and would you 25 agree with me that implementing that expressed wish,


1 would require some rapid enforcement action if the 2 injunction Order is part of that course of action; is 3 that fair? 4 A: Yes. 5 Q: And so if the Premier's expressed 6 wishes, which were given after your legal 7 recommendations, were to be implemented via the Court 8 Order, some very rapid enforcement action would have to 9 take place; is that fair? 10 A: Yes. 11 12 (BRIEF PAUSE) 13 14 Q: And you don't have any further 15 information, I take it, on whether such enforcement 16 action was planned by anybody? 17 A: No. 18 Q: Okay. And despite what you've said a 19 moment ago about the view of what one takes of ministers 20 or deputy ministers, the expressed wishes of the Premier 21 through Ms. Hutton do, in fact, seem to require what 22 we've just discussed, right? 23 A: Well, I think I've already agreed 24 with you that it would take, you know, fast action, yes. 25 Q: Okay.


1 2 (BRIEF PAUSE) 3 4 Q: And if somebody were to take the 5 Order which you intended to acquire or obtain, 6 particularly in the form of paragraph 3, the Order as it 7 appears would be one way of partially doing or -- or 8 implementing such an order; is that fair? 9 MS. KIM TWOHIG: Mr. Commissioner, I'm 10 just concerned that the hypothetical nature of -- 11 COMMISSIONER SIDNEY LINDEN: Yes, I -- 12 MS. KIM TWOHIG: -- these questions is 13 maybe -- 14 COMMISSIONER SIDNEY LINDEN: Yes, I think 15 we've gone far enough down this road, Mr. Klippenstein. 16 You've asked him what -- 17 MR. MURRAY KLIPPENSTEIN Right. 18 COMMISSIONER SIDNEY LINDEN: -- his 19 intention was and -- 20 MR. MURRAY KLIPPENSTEIN Speaking -- 21 speaking of roads, while we're on -- I'll change -- 22 change the -- the questions, Commissioner. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: But, I put before you the Beardmore


1 application. In fact, there were a number of differences 2 between the Beardmore situation and injunction and the 3 Ipperwash injunction situation, as I understand it. One 4 (1) of which was that Beardmore applied to a native 5 blockade on a particular roadway which they referred to 6 as Camp Number 72 Road, and that particular roadway was 7 blocked with some logs. 8 Is that -- which is what I read from the 9 evidence filed in the Beardmore. 10 Does that sound right to you? 11 A: Yeah, again I don't have, you know, 12 I've forgotten many essential details and important 13 details. I'm sure about that -- about that event, but it 14 was a blockade of a road preventing a construction 15 project at the end of it, yes. 16 Q: Right. So, one distinction was that 17 Beardmore was blocking a particular road which is going 18 to a construction site, whereas Ipperwash was occupation 19 of a -- of a Park area; is that right? 20 A: Yes. 21 Q: Yeah. There's been mention of the 22 fact that Beardmore also was an ex parte application, 23 right? 24 A: Yes. 25 Q: Now, when I look at the Beardmore


1 materials, I see a number of differences, including the 2 fact that in the Beardmore situation, the blockade began 3 on August 7th and the ex parte application occurred at 4 the beginning of September, almost a month later. 5 And is it fair, generally, in your 6 recollection to say that a lot of things that happened in 7 between that time, including, after a few days of the 8 blockade, the Government had set up a structure for 9 discussions in which the blockade was taken down. 10 And for several weeks the Government sat 11 down with the -- the protesters, discussed procedures of 12 addressing their grievances, even went so far and this is 13 in the evidence there to provide funding to the -- to the 14 protesters to send community representatives and lawyers 15 to discuss their grievances. Is that fair? 16 A: Yes. 17 Q: Yeah. 18 A: Again I -- I don't have any 19 recollection other than -- of those things -- or my -- 20 my, you know, memory was refreshed when I read the 21 affidavit material recently, in relation to Beardmore, 22 yes. 23 Q: Right. And furthermore as a result 24 of those discussions that the parties, if you want to 25 call them that, the blockaders and the Government came to


1 a written agreement about how to address some of the 2 grievances. Is that fair? 3 That all occurred before you did the 4 injunction, right? 5 A: Yes. Yes. 6 Q: And then when that written agreement 7 that came out of these various weeks of discussions was 8 apparently not adhered to, then before the injunction 9 occur -- application was brought forward by you, the 10 Minister of Natural Resources contacted the protesters to 11 try one more time to work it out; is that fair? 12 A: Yes that's -- I think I've read that 13 in -- in the affidavit material, yes. 14 Q: And it was after that, after all 15 that, when the blockade went up again then you went for 16 an ex parte injunction -- 17 A: Yes. 18 Q: Yeah. So in a way, it is the 19 opposite image of what happened -- injunction in the 20 sense at Ipperwash in the sense that there was a 21 Beardmore, an extensive attempt to listen to and 22 understand the protesters' grievances; is that fair? 23 A: There were distinctions between the 24 two (2) instance -- 25 Q: Along -- along the lines of what I've


1 just mentioned; is that fair? 2 A: These various aspects that you've 3 pointed out, yes. A little, you know, I find the -- the 4 image of -- the mirror image idea questionable but -- 5 Q: Why is that? 6 A: Well, you know, it depends on which 7 elements of the situation you take into account. You can 8 make a case that we have here a mirror image. You can 9 also make the case that we had something that's very 10 similar. 11 Q: All right. And what is different 12 however in the two (2), is that in the Beardmore 13 situation there were weeks of attempts to listen to and 14 even accommodate the grievances of the protesters, 15 correct? 16 And that didn't happen at Ipperwash, 17 correct? 18 COMMISSIONER SIDNEY LINDEN: The only 19 thing he's taken issue with was the term 'mirror' and 20 that's your term -- 21 MR. MURRAY KLIPPENSTEIN: Okay. 22 COMMISSIONER SIDNEY LINDEN: -- and he's 23 agreed with the facts as I understood you put them. 24 THE WITNESS: That's correct. 25 MR. MURRAY KLIPPENSTEIN: All right.


1 (BRIEF PAUSE) 2 3 MR. MURRAY KLIPPENSTEIN: I apologize, 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. MURRAY KLIPPENSTEIN: One -- one (1) 7 moments indulgence if I may. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 13 Q: In -- I would like to ask you some 14 questions about the state of affairs when you spoke with 15 some of the police officers about evidence and 16 particularly Inspector Carson and Detective Sergeant 17 Wright. And when -- I'm talking about when you spoke 18 with him on the phone on the 6th, not in person on the 19 7th. 20 I believe in your testimony with -- with 21 My Friend Mr. Worme, you clarified that at the point when 22 you telephoned Inspector Carson on the 6th to talk about 23 evidence to be presented, it was clear in your mind that 24 you were proceeding ex parte. 25 There was no doubt about that; is that


1 fair? 2 A: You know I can't recall. But, the 3 transcript probably speaks for itself on that issue. 4 5 (BRIEF PAUSE) 6 7 Q: Well, when you -- when you spoke 8 yesterday you said, in response to a question from Mr. 9 Worme about your call to Mr. Carson, Mr. Worme asked you: 10 "Were you making an assessment as you 11 were going along and hearing this 12 information as to the urgency of the 13 situation, so as to determine whether 14 to go ex parte or not? 15 And your answer was: 16 "Well, I think at this stage I was 17 probably becoming curious as to what my 18 chances were the next day, but it 19 wasn't from the point of view of 20 affecting what I was going to be doing 21 the next day. 22 I already knew that we were going to be 23 proceeding to seek an injunction 24 without notice, although we were going 25 to attempt to serve. I knew the rule I


1 was proceeding under." 2 Do you recall that? 3 A: Right. 4 Q: What I'm trying to understand and 5 clarify from your evidence is that it appears that you -- 6 you were calling Inspector Carson after you'd received 7 the instructions conveyed through Ms. Christie. 8 Does that sound right to you? 9 A: Yeah, well, you know, the particulars 10 of the instructions that I'd received by the time I spoke 11 to Carson, you know, you know -- 12 Q: Let me put it this way. 13 A: At the moment, I -- you know, I don't 14 know where I was on that at the time of the conversation 15 with -- with Carson. 16 As I say, if perhaps -- if it's important, 17 if we went to the transcript and you could -- and I could 18 -- I could resolve any question in my mind that it -- as 19 to what I knew at that point, that -- that might be 20 useful. 21 Q: Well, we can -- we can put those 22 transcripts before you, but let me just as -- as 23 preliminaries. By the time you spoke with Mr. Carson, 24 Inspector Carson, on the phone the afternoon of the 6th, 25 the possibility of an injunction in Toronto the afternoon


1 of the 6th had come and gone; is that right? 2 A: See, I -- that's -- I don't know. 3 Q: Okay. 4 5 (BRIEF PAUSE) 6 7 Q: If you can -- I'll just get the Tab 8 number in your Commissioner document -- 9 A: Right. 10 Q: -- binder of the transcript. 11 12 (BRIEF PAUSE) 13 14 Q: 22, I believe, is the tab. 15 A: Hmm hmm. 16 17 (BRIEF PAUSE) 18 19 Q: And your conversation begins on the 20 second page. 21 A: Right. 22 Q: And at that time, in the middle of 23 the page, you say to Mr. -- to Inspector Carson: 24 "I'm told that the Court is available 25 9:00 a.m. tomorrow in Sarnia."


1 You see that? 2 A: Yes. 3 Q: So, at that point, you've already 4 preliminarily, with Ms. Christie's assistance, booked the 5 Court on the morning of the 7th. 6 A: Yes, it appears to be the case. 7 There's also the -- the comment, the context of which I 8 don't recall, but just above that where I say: 9 "I expect to get confirmed 10 instructions, ah, later this afternoon 11 to seek an ex parte injunction." 12 So... 13 Q: What I'm just trying to do is not get 14 into the detail of, you know, what this -- 15 A: Okay. 16 Q: -- what this confirmed or unconfirmed 17 status of the instructions were. I suggest to you that 18 at that point since you were talking -- 19 A: Right. 20 Q: -- about ex parte injunction and you 21 were mentioning a specific -- 22 A: Yes. 23 Q: -- point -- court appointment, 9:00 24 a.m. 25 A: But, I -- I understand you now and --


1 and thank you for taking me to the transcript. 2 Q: It was your idea, so don't thank me. 3 A: Yeah, well I can -- I can -- you 4 know, I can see that, yes, at this point, we know about 5 tomorrow at 9:00 a.m., yes. 6 Q: Right. So, at this point, you are 7 assuming an ex parte injunction; is that fair? 8 A: Yes. 9 Q: Yeah. And as you discussed with Mr. 10 Worme, you are preparing an ex parte injunction, you are 11 going for an ex parte injunction. 12 A: Yes. 13 Q: You are not, at this point, preparing 14 for a recommendation to your client. You did that. Your 15 instructions are now different than what you recommended; 16 isn't that fair? 17 A: Yes. 18 Q: And you are carrying out your 19 instructions and you are calling the officer and you are 20 interested in what his view on the urgency issue is, but 21 that isn't going to make any difference because you've 22 already booked the court according to your instructions? 23 A: Yes. 24 Q: Yes. So, if somebody were to suggest 25 that the injunction was proceeded with on an ex parte or


1 rush basis, based on the assessment of Inspector Carson, 2 that really wouldn't be accurate, fair? 3 A: Yes. That's right, that would not be 4 accurate. 5 Q: Instead, it's the reverse. You had 6 your instructions to proceed in a rush or -- I shouldn't 7 say rushed. You had your -- because that's judgmental 8 perhaps. 9 You had your instructions to proceed on an 10 immediate or ex parte basis before you got the -- the 11 assessment from Inspector Carson? 12 A: Yes. 13 Q: Yes. 14 A: Well, I had instructions to be in 15 court the next day and it's my judgment at that point 16 that that needs to be ex parte, yes. 17 Q: Right. And, more so, we'd -- as we'd 18 already seen, being in -- in court the -- the next day, 19 in the morning, was actually the third position. 20 You'd already been through the afternoon 21 in Toronto in the evening, right? 22 A: Well, so I'm told, yes. 23 Q: And -- and that makes sense to you; 24 is that fair? 25 A: Yes.


1 Q: Yeah. And you didn't speak -- sorry, 2 let me take a step back. You spoke with Carson in this 3 phone call before you spoke with Wright later in the 4 afternoon; is that right? 5 A: It seems to be the case, yes. 6 Q: Right. So, the same logic applies. 7 By the time you spoke with Wright you had your 8 instructions to proceed immediately, which meant 9 essentially ex parte; is that right? 10 A: Yes. 11 Q: Yes. So, again, the same logic 12 applies to Detective Sergeant Wright. If someone were to 13 say that you made your decision to proceed immediately 14 based on Officer Wright's evidence, that wouldn't be 15 accurate? 16 A: That would not be accurate. What I 17 was receiving from the police officers was, I suppose, 18 reassurance that, you know, this -- this might -- this 19 motion may in fact be successful. 20 Q: Fair enough. Whatever. But, as I 21 said, the decision had been made by then? 22 A: Yes. 23 Q: And if I turn to the next -- the 24 other officer in the picture that you spoke to, which is 25 Ron Fox, we've seen that already, in the morning, he was


1 saying, Imprudent to rush in. Certainly it wasn't Ron 2 Fox who persuaded your client to give instructions to 3 proceed immediately; is that right, to the best of your 4 knowledge? 5 A: To the best of my knowledge, it 6 wasn't Ron Fox who -- who persuaded my client to -- to 7 proceed immediately, but I have no information about -- 8 Q: Sure. 9 A: -- that sort of thing. 10 Q: So, having considered those three (3) 11 officers, is it fair to say that you certainly can't 12 identify any officer whose -- police officer whose 13 information about the facts on the ground supported a 14 decision to go immediately or ex parte at the time you 15 received those instructions; to the best of your 16 knowledge? 17 You don't know of any officer whose 18 factual information could have been a driver for the 19 decision to go immediately; is that fair? 20 A: I -- I don't know of any officer who 21 provided information that would have had that effect, no. 22 Q: Right. 23 A: It -- their information is, I suppose 24 one could say, supporting the possibility of a -- of a 25 successful conclusion of the motion, to me. But, the


1 point that you're making I think is a different one as to 2 whether that -- that would have had any impact upon the - 3 - the decision by whomever made the decision that I need 4 to be in court the next day. 5 Q: Because the decision had been made, 6 as far as you could see? 7 A: Apparently so, yes. 8 Q: Yeah. And let me look at that from 9 another point of view. It necessarily follows that when 10 you spoke with Inspector Carson, since the decision to 11 proceed immediately and -- had already been made and 12 those were your instructions, the picture that Inspector 13 Carson saw was that the Government had decided to proceed 14 immediately with an ex parte injunction. 15 That's the picture that was being 16 presented to Inspector Carson? 17 A: Yes. In this conversation I'm 18 telling him that we're proceeding tomorrow at 9:00 a.m., 19 yes. 20 Q: Right. And the same applies to 21 Detective Sergeant Wright, when you spoke with him later 22 that afternoon, the picture being put forward to -- to 23 Detective Sergeant Wright was that the Government of 24 Ontario had decided to proceed on an immediate ex parte 25 basis.


1 Is that accurate as well? 2 A: Yes. 3 Q: And we've heard evidence in a tape of 4 one of the police officers, I believe Officer Lacroix 5 actually, saying to Carson that, The signal we're getting 6 is we're going to be evicting them. 7 Is it fair to say that the signal that 8 would have been going to Inspector Carson and Detective 9 Sergeant Wright was that the Government was proceeding on 10 an emergency or ex parte basis? 11 It's not my word it's the police officer. 12 COMMISSIONER SIDNEY LINDEN: He's already 13 asked that question. I mean, he's already asked that 14 question. I think you've already asked that question and 15 answered it. 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: All right. And that picture was 19 going out to, in terms of timing, to Inspector Carson and 20 Detective Sergeant Wright before the police officers 21 marched toward the Park on the evening of the 6th, as a 22 matter of timing from your knowledge as a participant in 23 those phone calls; is that fair? 24 A: I -- I have a great deal of 25 difficulty talking about a picture that's going out to


1 the officers. 2 Q: Okay. 3 A: What's going out to the officers from 4 me is that we're going to be in court tomorrow morning at 5 9:00 a.m. 6 Q: Right. Okay. All right. 7 8 (BRIEF PAUSE) 9 10 Q: Did you in your discussions -- well 11 first of all, let me take a step backward. Did you have 12 any discussions with Inspector Carson or -- or Detective 13 Sergeant Wright on the 6th other than what was recorded 14 in these phone calls? I presume not. 15 A: Not that I recall, no. 16 Q: Yeah. And then you had some 17 discussions with Detective Sergeant Wright on the morning 18 of the 9th; is that fair? 19 A: Yes. 20 Q: Yes. And did you have -- of the -- 21 COMMISSIONER SIDNEY LINDEN: On the 22 morning of the -- 23 MR. MURRAY KLIPPENSTEIN: Of the 7th. 24 COMMISSIONER SIDNEY LINDEN: -- of the 25 7th.


1 MR. MURRAY KLIPPENSTEIN: Thank you. 2 Yeah. 3 4 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 5 Q: When you discussed the proceedings on 6 the morning of the 7th with Detective Sergeant Wright, 7 did you discuss with him, and this was after the police 8 had marched toward the Park and the shooting of -- of 9 Dudley George, did you discuss with Detective Sergeant 10 Wright the nature of your instructions or how you had 11 received them? 12 A: I doubt very much if I did. 13 Q: Okay. Did you discuss with Detective 14 Sergeant Wright anything you'd seen or heard in the IMC 15 meeting? 16 A: I -- I can't imagine that arising in 17 the course of our conversation that morning, no. 18 Q: Okay. And did you discuss with 19 Detective Sergeant Wright what you'd heard about the 20 Premier's views? 21 A: Again, I -- I don't think we were -- 22 MS. KIM TWOHIG: I'm sorry, Mr. 23 Commissioner. Doesn't this presuppose that Mr. McCabe 24 has heard the Premier's views? 25 I'm not sure he was ever asked if he had


1 heard any views. 2 MR. MURRAY KLIPPENSTEIN: I thought that 3 had been covered in my review of the IMC meeting of the 4 6th and -- but I'm happy to review that again. 5 COMMISSIONER SIDNEY LINDEN: No, I don't 6 want you to review it again. But, I think you're stating 7 it a little higher than it actually is. I mean, are you 8 referring to the comments of Deb Hutton -- 9 MR. MURRAY KLIPPENSTEIN: Yes. 10 COMMISSIONER SIDNEY LINDEN: -- at that 11 meeting which he couldn't exactly recall and he didn't 12 agree or disagree? But he couldn't exactly recall them. 13 MR. MURRAY KLIPPENSTEIN: Yes. 14 COMMISSIONER SIDNEY LINDEN: So you're 15 putting it higher than the Witness has. 16 MR. MURRAY KLIPPENSTEIN: I don't mean to 17 do that. I just -- I was summarizing -- the evidence not 18 only of -- of Mr. McCabe, but of for example -- 19 COMMISSIONER SIDNEY LINDEN: He didn't 20 acknowledge that he in fact heard what Deb Hutton said, 21 although he didn't deny that it could have been said. 22 MR. MURRAY KLIPPENSTEIN: Okay. 23 COMMISSIONER SIDNEY LINDEN: So, that's a 24 slightly different position. 25 MR. MURRAY KLIPPENSTEIN: All right.


1 Thank you for the -- I didn't mean to misstate the 2 evidence. 3 4 (BRIEF PAUSE) 5 6 MR. MURRAY KLIPPENSTEIN Commissioner, 7 I'm moving on to another area, and I don't know if this 8 is a time to break. 9 COMMISSIONER SIDNEY LINDEN: Well, I 10 like -- 11 MR. MURRAY KLIPPENSTEIN I'm happy to 12 proceed or whatever. 13 COMMISSIONER SIDNEY LINDEN: -- if you 14 give me some idea of how long you think you will be to 15 conclusion, then we'll make some decision of breaking up. 16 MR. MURRAY KLIPPENSTEIN I expect to be 17 about another hour. 18 COMMISSIONER SIDNEY LINDEN: Yes, I think 19 we should go a little longer. 20 MR. MURRAY KLIPPENSTEIN Okay. 21 COMMISSIONER SIDNEY LINDEN: Because I'd 22 like to try to finish this Witness so that we can get Ms. 23 Kohsed-Currie called. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:


1 Q: Mr. McCabe, if you could turn in the 2 document binder from the Commission to the Motion 3 materials at Tab 35, which is Exhibit P-551. 4 5 (BRIEF PAUSE) 6 7 Q: Do you have that? 8 A: Yes. 9 10 (BRIEF PAUSE) 11 12 Q: I would -- I'd like to ask you some 13 questions about the contents of these materials. Now, 14 this Motion record which includes the Notice of Motion 15 and the Affidavit of Mr. Kobayashi, what was -- is what 16 was before the Court, is that fair, on the morning of 17 September 7th? 18 A: Well, this was before the Court on 19 the morning of the 7th, yes. 20 Q: And, in fact, it appears that it was 21 delivered to the Justice the evening before, both because 22 of the evidence of Ms. Christie and the -- I believe the 23 Judge in the transcript makes some reference to the 24 materials. 25 Is that your understanding as well?


1 A: That's my understanding. It may be 2 that -- well, clearly the Affidavit hadn't been executed 3 at that point and I think I've read recently that the -- 4 we didn't have the exhibits attached to the Affidavit 5 that was faxed the evening before to Windsor. 6 Q: All right. I'd like to ask you about 7 what appears to me and my clients to be an omission from 8 these materials. And you will perhaps understand if -- 9 whether you agree or not, you will understand where my 10 clients are coming from, including Dudley George who I 11 speak for through his estate. 12 I look through the Affidavit materials and 13 it is very much obviously concerned with the occupation 14 of the Park lands and who has a right to possession of 15 those lands; fair enough? 16 A: Yes. 17 Q: Yes. Now, I don't however, see any 18 reference whatsoever in the materials, to what may be, 19 perhaps, the most important element of that issue from 20 the First Nation point of view which is that those lands 21 were reserved for Indians by a treaty many years ago in 22 1827. 23 Now, would you agree with me, first of 24 all, there is no reference to the Treaty or a treaty in 25 these materials?


1 A: Yeah, I -- I don't think I've read 2 the Affidavit but, you know, I'll take your word for it 3 that there's no reference to the Treaty, yes. 4 Q: Now, we've heard some evidence in 5 this hearing about a treaty, a treaty of 1827, which says 6 that certain lands and those -- no, I don't think there's 7 any doubt now, if I may be so bold as to say that, that 8 those lands included the Ipperwash Park lands and other 9 lands were reserved to Indians as part of their surrender 10 of large parts of southwestern Ontario. 11 And first of all, had you ever reviewed 12 the Treaty at all, either in preparation around September 13 5th and 6th or previously? 14 A: I didn't review the Treaty around 15 September 5th and 6th, I'm sure, but I was aware 16 generally of the -- you know, of the history of land 17 surrenders in Western Ontario, and the fact that the 18 reserves as they had existed, up until the 1920's I 19 suppose, were reserves that were created pursuant to the 20 terms of the treaties about which you're referring, yes. 21 Q: Right. And you used the word 22 'created' and I -- perhaps you can -- 23 A: Reserved. 24 Q: Yeah, preserved. And, in fact, this 25 is getting into a very technical area but it is important


1 in some -- 2 A: Hmm hmm. 3 Q: -- context, which is part of the 4 general principle sometimes, in some of these treaties, 5 is that the pre-existing Aboriginal rights to land, 6 rather than being extinguished by a treaty, are confirmed 7 or continued -- 8 A: Right. 9 Q: -- in the reserves; is that fair? 10 A: Yes. 11 Q: Yeah. And so, in fact, if you will, 12 the ancestral or Aboriginal title to those lands, which 13 are subsequently called reserves, continues on past the 14 Treaty period -- is that -- past the signing of the 15 Treaty; is that, generally speaking, accurate? 16 A: Yes. 17 Q: Yes. So for at least a hundred (100) 18 years after the signing of the Treaty in 1827, the First 19 Nation People or Native People that were parties to that 20 treaty would be correct in saying, Those reserve lands, 21 those are our lands. 22 Generally speaking, that's fair, is that 23 right? 24 A: Yes. 25 Q: Yeah. And --


1 A: Just as they would be if the reserve 2 had been created, as I -- as I say. The Aboriginal 3 people would have been equally justified, in my 4 submission, in -- in saying, Those are our lands, in that 5 circumstance. 6 Q: Okay. I think that there's some 7 technicalities here, which I -- which I don't intend to 8 get into, but that's why I used the word 'generally', but 9 I -- 10 A: Hmm hmm. 11 Q: -- I accept your point. 12 But, if the -- well, we heard evidence 13 from Ms. Christie, and in fact it appears in some of the 14 meeting notes, that one (1) of the things that Ron Fox 15 reported to the IMC meeting was that during the 16 occupation some of the protestors had written something 17 on a chalkboard or something on -- in the Park buildings, 18 which was number 43 -- 19 A: Hmm hmm. 20 Q: -- which she said was significant 21 because that was a reference to the reserve number that 22 had been given to that reserve by Indian Affairs in times 23 past. 24 Now, do you have any recollection of that 25 piece of information, the reference to number 43?


1 A: Only, I think, insofar as I've read 2 notes in recent days, yes. 3 Q: Right. But, you wouldn't have any 4 reason to disagree with the idea that the -- the 5 significance of the number 43 which the protestors 6 apparently put up somewhere in the Park during the 7 protest, was a reference to reserve lands? 8 A: It seems reasonable. 9 Q: Okay. 10 A: No doubt the reserve, when it was a 11 reserve, was given a number by the Federal Government. 12 Q: Right. And we don't find, during the 13 course of the occupation, any detailed or -- or 14 historically elaborated theory from the protestors of why 15 they might have a right to be there in terms of, for 16 example, specific treaty rights, we don't -- you didn't 17 see that back then and you don't see it now; is that 18 fair? 19 A: Yes. 20 Q: However, the points I've just 21 referred to do -- do support or involve some kind of 22 theory about why they might feel that they had a right to 23 be there; is that right? 24 COMMISSIONER SIDNEY LINDEN: Just a 25 minute. Yes...?


1 MS. KIM TWOHIG: Mr. Commissioner, I'm 2 not sure that that's a fair characterization of the 3 evidence. I think Mr. McCabe said that treaties do 4 confer certain rights and he did not believe that there 5 was -- that this came into play in respect of the 6 application for the injunction. 7 Or maybe I haven't fairly stated it but I 8 -- I'm not sure that Mr. Klippenstein's question 9 accurately reflects the evidence that Mr. McCabe gave. 10 COMMISSIONER SIDNEY LINDEN: Well, I'm -- 11 MR. MURRAY KLIPPENSTEIN: I think it does 12 but let me -- let me try and rephrase things to make 13 things more clear. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: The -- the evidence that the 18 protestors made, apparently through the number 43, a 19 reference to a reserve does suggest a -- an underlying 20 reference to the Treaty guarantee of the reserve lands; 21 is that fair? 22 COMMISSIONER SIDNEY LINDEN: That's a -- 23 MS. KIM TWOHIG: He's essentially being 24 asked to surmise what the occupiers meant when they put 25 the number on the blackboard and I don't think he can


1 answer that question. 2 COMMISSIONER SIDNEY LINDEN: Well, 3 perhaps he could be asked again a different -- I don't 4 think it's an improper line of questioning. The question 5 is what -- perhaps you could ask him what he thought 6 doing that meant. 7 8 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 9 Q: Given the evidence that the occupiers 10 wrote the number 43 on -- on something in the -- one of 11 the buildings in the Park, do you -- do you have any idea 12 of the possible significance of that? 13 A: Well, I would be surmising, but it -- 14 it would appear that they're saying that this was a 15 reserve. And for all we know they be saying and it ought 16 to be again. 17 Q: And when they -- they might be saying 18 this was a reserve and this ought to be a reserve again. 19 Given what you know generally from the factual situation 20 around Ipperwash, it was in fact formerly a reserve under 21 the Treaty; is that fair? 22 A: That's what I understand, yes. 23 Q: Yeah. So they might actually be 24 connecting the two (2) -- 25 COMMISSIONER SIDNEY LINDEN: I'm not sure


1 how far, Mr. Klippenstein, you can go with this Witness 2 on those questions. I mean, the evidence that we -- that 3 you put to him is evidence that we've heard. You're 4 getting now into areas that's not evidence before this 5 Inquiry so far. 6 MR. MURRAY KLIPPENSTEIN: Well it's -- 7 COMMISSIONER SIDNEY LINDEN: Certainly 8 not from this Witness in any event. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: Yes. Well let me again return to the 12 question I began with a minute or two (2) ago. Now, you 13 didn't include you or your litigation team if I will, 14 didn't include any reference to the Treaty or indeed to a 15 reserve in your documents that you put before the court; 16 is that fair? 17 COMMISSIONER SIDNEY LINDEN: Yeah. You 18 made that point and I think he agreed with that. You've 19 made that point. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: Yes. Well, I'm -- what my -- my 23 question is you can understand you -- would you agree 24 with me that from a First Nation's point of view 25 including the point of view of the occupiers, simply,


1 historically and logically speaking, the fact that -- the 2 apparent fact that these lands were treaty reserve lands 3 is something that would be relevant from their point of 4 view to the issues addressed in this affidavit; is that 5 fair? 6 MS. KIM TWOHIG: Mr. Commissioner, I'm 7 not sure if this Witness can testify about someone else's 8 point of view. 9 COMMISSIONER SIDNEY LINDEN: That may be 10 right. 11 MR. MURRAY KLIPPENSTEIN: My -- the 12 reason I suggest, with respect, that it is relevant is 13 that on an ex parte motion there's an obligation for full 14 and frank disclosure. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. MURRAY KLIPPENSTEIN: I don't mean to 17 get into an exercise of criticizing Mr. McCabe. But, 18 that fact -- although I may, I don't want to say I 19 won't. That fact the legal principle requires, in my 20 submission, and this is obvious, a higher degree of 21 disclosure about what may be relevant. 22 And I'm exploring what may be relevant in 23 the court materials at that point. And that in my 24 submission, means necessarily relevant from the point of 25 view the people who are going to be subject to the order.


1 COMMISSIONER SIDNEY LINDEN: But, he 2 can't testify to that. I mean, all he can testify is 3 what -- I'm sorry. 4 MR. DONALD WORME: Thank you very much, 5 Commissioner. With respect to My Friend, I think the 6 -- the point that he wishes to make frankly, is a point 7 that's to be made in argument. 8 COMMISSIONER SIDNEY LINDEN: Yes. Yes. 9 MR. DONALD WORME: This Witness can 10 testify as to what he did, as to what he understood at 11 the time. But, to take -- 12 COMMISSIONER SIDNEY LINDEN: That's -- 13 MR. DONALD WORME: -- him beyond that and 14 to ask him now to speculate as to what the occupiers had 15 thought I think simply is -- is a matter that -- 16 COMMISSIONER SIDNEY LINDEN: Well -- 17 MR. DONALD WORME: -- he isn't -- he 18 isn't competent to speak to. And I would suggest that My 19 Friend might confine the line that he's pursuing now to 20 his argument. 21 COMMISSIONER SIDNEY LINDEN: Yes, I think 22 that's right, Mr. Klippenstein. This is argument and you 23 can make it. But you can ask him what he thought was 24 relevant. 25 You're, in effect, asking him to speculate


1 what the occupiers thought should have been included or 2 what they thought was relevant and that's an argument. 3 It's a legitimate argument but not something that he can 4 testify to. 5 MR. MURRAY KLIPPENSTEIN: Well let me ask 6 this Witness a number of questions about what he thinks 7 is relevant. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: In this application you report -- 11 you're asking for an order against the people in the Park 12 on the basis that they had no right to be there; is that 13 right? 14 A: Yes. 15 Q: And the Treaty was relevant to that 16 question; is that right? 17 A: No. 18 Q: And why was it not relevant? 19 A: Well -- 20 COMMISSIONER SIDNEY LINDEN: You see that 21 -- that's the end of it. 22 MR. MURRAY KLIPPENSTEIN: The surrender-- 23 COMMISSIONER SIDNEY LINDEN: You asked 24 him -- 25 MR. MURRAY KLIPPENSTEIN -- was relevant,


1 is that fair? 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 THE WITNESS: Yes. 4 COMMISSIONER SIDNEY LINDEN: Excuse me, 5 I'm sorry. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: The surrender of 1928; is that fair? 9 A: Yes. 10 Q: And you put the surrender -- in fact, 11 the surrender was central to the position of the 12 Government in Court that day; is that fair? 13 A: You know, the surrender is central to 14 the history of these lands. 15 Q: All right. And why is it central? 16 A: That's the foundation of the title of 17 the Province of Ontario. 18 Q: All right. So that's why you put it 19 to the Court because it was central and the foundation of 20 the Province's claim that you were advancing that day; is 21 that right? 22 A: Yes. 23 Q: Yes. Now, it was central and 24 foundational because the surrender purportedly 25 constitutes some kind of giving up of rights of First


1 Nations people; is that right? 2 A: Some kind of? It -- you know, we'd 3 have to -- we should get this surrender before us and 4 read it. 5 COMMISSIONER SIDNEY LINDEN: Sure, I'm 6 not anxious to do that at this point with this Witness. 7 This is not something that, I don't think, we can -- 8 THE WITNESS: It's an absolute surrender 9 for sale. 10 COMMISSIONER SIDNEY LINDEN: I mean, 11 we're going to have argument about this. We've had some 12 evidence, we may have more but we -- I'd like to confine 13 this Witness' evidence to what he can testify to. 14 MR. MURRAY KLIPPENSTEIN: Well, I'm 15 having some difficultly, Commissioner, because this -- 16 this counsel sort of quarter backed an application to 17 Court on September 7th, which was, in my respectful 18 submission, one of the key parts of the events 19 surrounding the death of Dudley George. 20 COMMISSIONER SIDNEY LINDEN: Yes, you've 21 asked him a lot of questions about it. 22 MR. MURRAY KLIPPENSTEIN: One -- in my 23 respectful submission, one of the key parts of that key 24 parts, is the surrender and the Witness has just said 25 that's foundational and central to the Government's


1 position. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. MURRAY KLIPPENSTEIN: If I am not 4 permitted to ask at least a little bit -- explore this 5 Witness' who was quarter backing and speaking for the 6 Government of Ontario at that point -- 7 COMMISSIONER SIDNEY LINDEN: Well -- 8 MR. MURRAY KLIPPENSTEIN: -- about one of 9 the central parts of what happened on the 6th and 7th, I 10 confess I feel for my clients that there's some degree of 11 difficulty in -- 12 COMMISSIONER SIDNEY LINDEN: All right. 13 MR. MURRAY KLIPPENSTEIN: -- exploring 14 the events surrounding the death of Dudley George. 15 COMMISSIONER SIDNEY LINDEN: I think you 16 should be able to ask some questions. It's a question of 17 where and how far and I don't want that whole issue to be 18 before us now with this Witness. 19 So exactly what you're -- how far you're 20 going to go, that's the question. 21 MR. MURRAY KLIPPENSTEIN: All right. 22 Well maybe I'll take it step by step. 23 COMMISSIONER SIDNEY LINDEN: I've tried 24 to let you continue this questioning, but I don't want it 25 to go so that that's the -- we're not going to litigate


1 the question of the validity of the surrender at this 2 point in time, because I know that may or may not be an 3 issue later on. 4 MR. MURRAY KLIPPENSTEIN: I don't intend 5 to litigate it. This is not a Court of Law -- 6 COMMISSIONER SIDNEY LINDEN: No. 7 MR. MURRAY KLIPPENSTEIN: -- and it may 8 be litigated at some other point. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. MURRAY KLIPPENSTEIN: On the other 11 hand, I've suggested that, from my clients' point of 12 view, the surrender which formed a foundational core part 13 of the position of the Province of Ontario, is something 14 that my clients have different views on and have 15 questions about. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 Factual questions that this Witness can answer, I think 18 are appropriate. Factual questions that this Witness can 19 answer. 20 MR. MURRAY KLIPPENSTEIN: Well, the 21 evidence has been of this Witness, Commissioner, that Mr. 22 McCabe is a leading Counsel -- 23 COMMISSIONER SIDNEY LINDEN: Not an 24 expert. 25 MR. MURRAY KLIPPENSTEIN: -- on


1 Aboriginal legal issues. 2 COMMISSIONER SIDNEY LINDEN: Yes, the 3 question of law is for me to decide at the end of the 4 day, and I don't want to go too far down that road. 5 That's why I'm saying if you continue, we'll see question 6 by question how far you intend to go. 7 I don't know how far you intend to go. 8 9 (BRIEF PAUSE) 10 11 MR. MURRAY KLIPPENSTEIN: All right. 12 I'll take it question by question. 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: I take it -- it appears to me that 16 you did not include in the motion record any native 17 position on the surrender of 1928. 18 COMMISSIONER SIDNEY LINDEN: It's a 19 practical question. 20 THE WITNESS: There's a -- there's a 21 certain hypothetical nature to that question. Was there 22 a native position with respect to the surrender of 1928? 23 I wasn't aware of it. No one that I had 24 been in contact with at any time was aware of it. 25


1 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 2 Q: So the answer to my question is no, I 3 take it? 4 A: The answer to your question is it's - 5 - it's hypothetical. It assumes a state of facts that, 6 you know, that I'm not aware of. 7 Q: Okay. So you were not aware, you 8 say, of any alternative Native position on the surrender 9 of 1928 at the time that you prepared and filed and 10 argued these materials? 11 A: Yes. 12 Q: All right. Now, can I turn you, 13 please, to some of the meetings notes which are included 14 in one (1) of the binders we presented to you. And if 15 you could -- this is a binder of -- of IMC meeting notes 16 which we provided to you. And I will refer you to the 17 September 6th notes. 18 A: Yes. 19 Q: And turn to Tab 8, which are the 20 notes of Eileen Hipfner. And on page 1 of Ms. Hipfner's 21 notes you see a heading called, Update, and after that a 22 heading called, OPP Ron Fox. 23 Do you see that? 24 A: Yes. 25 Q: And the -- the fourth bullet point


1 says: 2 "Have made no demands." 3 Do you see that? 4 A: Yes. 5 Q: And the next bullet point says: 6 "Asserted it's their land." 7 Do you see that? 8 A: Yes. 9 Q: And the next bullet point says: 10 "Have raised issue of burial grounds." 11 Do you see that? 12 A: Yes. 13 Q: If you turn to Tab 4, we have the 14 notes of Ms. Prodanou and, again, of September 6th, '95. 15 And on the first page, about the middle of the page, you 16 see a bullet point that says: 17 "Made no demands." 18 Do you see that? 19 A: Yes. 20 Q: And let me just read that to you: 21 "Made no demands but said their land 22 and burial ground." 23 A: Yes. 24 Q: You see that. And there are other 25 notes as well, I won't refer them to you, but these notes


1 appear to record that Mr. -- Inspector Fox, in his 2 presentation to the September 6th meeting which you 3 attended, that there was a report that, although the 4 Native occupiers had made no demands, they said it's 5 their land and there's burial grounds in there. 6 Do you recall hearing those comments from 7 Inspector Fox? 8 A: I -- I can't, you know, recall 9 specifically, as I -- as I often said about these notes, 10 but I have no reason to -- to doubt that that was said. 11 Q: And so if that was said, then I take 12 it for some reason -- well, I'll first of all say, the 13 comment that the protestors apparently said, it's their 14 land, doesn't appear anywhere in the motion materials 15 before the court, correct? 16 A: It doesn't appear in -- in the 17 affidavit. 18 Q: Correct. And it doesn't also appear 19 in the evidence of Detective Sergeant Wright. 20 Do you agree with that? 21 A: Oh, I think it does. 22 Q: Well, I -- before you -- 23 A: Right. 24 Q: -- just to be clear about my 25 question, these notes say two (2) things, one (1) is it's


1 their land and there's a burial ground, and all the notes 2 which refer to this tend to make those two (2) different 3 points. 4 Would you agree with me those are two (2) 5 different points, it's their land and there's burial 6 grounds there? 7 A: Yes. 8 Q: And neither of those two (2) points 9 appears in the written motion materials; correct? 10 A: That's correct. 11 Q: And I believe you've said that 12 Detective Sergeant Wright, in his verbal -- verbal 13 evidence, talked about the allegation of a burial ground; 14 right? 15 A: Yes. 16 Q: Now, I suggest to you that there is 17 no reference in Sergeant Wright's evidence before the 18 court, verbally, that the natives said it's their land. 19 Are you aware of anything that suggests otherwise? 20 A: You know, I -- the transcript speaks 21 for itself. 22 Q: Right. 23 COMMISSIONER SIDNEY LINDEN: I -- 24 MS. KIM TWOHIG: Yes. I -- 25 COMMISSIONER SIDNEY LINDEN: -- can't


1 read it all right this minute. Have you looked at it? I 2 don't know. 3 MS. KIM TWOHIG: Well, page 10 of the 4 transcript -- 5 COMMISSIONER SIDNEY LINDEN: Whereabouts-- 6 MS. KIM TWOHIG: -- does make -- 7 COMMISSIONER SIDNEY LINDEN: -- what tab 8 is that at? 9 MS. KIM TWOHIG: Tab 36. 10 MR. DONALD WORME: 36, Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Page 10. 12 13 (BRIEF PAUSE) 14 15 MS. KIM TWOHIG: At line 11: 16 "Were there any specific demands made 17 by the occupiers to the Park?" 18 And further down you mentioned reference 19 to a burial ground. Were there any statements apart from 20 that as to why the occupiers were there, and there's 21 evidence that flows from that. 22 But it's important to remember, I submit, 23 Mr. Commissioner, that Mr. McCabe was a Counsel here 24 eliciting evidence about facts -- 25 COMMISSIONER SIDNEY LINDEN: Yes, no.


1 MS. KIM TWOHIG: -- that he thought might 2 be relevant to put before the Court. 3 COMMISSIONER SIDNEY LINDEN: Yes, but I 4 think Mr. Klippenstein's point is there's an obligation 5 for full disclosure. But anyway -- 6 MR. MURRAY KLIPPENSTEIN: Well, at this 7 point, I just want to continue with my question and My 8 Friend, Ms. Twohig, perhaps is suggesting that there is 9 reference to it's their land, but I don't see it anywhere 10 in the materials in the items she mentioned, other than 11 it's a reference to burial ground again. 12 13 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 14 Q: My question is: Am I correct in 15 concluding that nowhere in either the written materials 16 or the evidence of Detective Sergeant Wright, is it put 17 before the Court that the protesters were apparently 18 saying it's their land, as distinct from and in addition 19 to saying, there's a burial ground in there? 20 I take it you're not aware of any such 21 evidence? 22 A: I'm not aware of any such evidence. 23 My -- to take a look at what -- at what my intention 24 was. My intention was to have an Affidavit from the 25 superintendent of the Park which would speak to the title


1 history of the Park and which would speak to MNR's 2 concerns about damage to, destruction of, property in the 3 Park and would speak to the interference with the use of 4 the Park by MNR and by the public as a result of this 5 occupation. 6 That's what I wanted from the -- from MNR 7 in its Affidavit. 8 From the OPP officer, the idea was that he 9 -- and I think this was implemented, that he would give 10 an up to the minute report as to the course of the 11 occupation, the beginnings of the occupation, what was 12 said by the people as to why they were there, what 13 objectives they sought to achieve by being there and 14 taking the forcible action that they -- that they did 15 take. 16 And that the only way to bring that 17 evidence before the Court was to do it by -- by means of 18 viva voce testimony, rather than by a static affidavit 19 which, by the time we would appear in Court, would be -- 20 would probably be behind the times in some way. 21 Also, the idea that the rationale of the 22 people in the Park as to why they're there -- why they 23 were there could very well develop and evolve in the 24 course of time, and that the only way to get that 25 information before the Court was before the police


1 officer. 2 So, the question is asked of the police 3 officer, Have they said why they're there, and -- and he 4 gives his answer. 5 Q: And the fact remains, is that not 6 correct, that it was reported to the IMC meeting that 7 they were saying it's their land, and that claim was not 8 put before the Court, either in the written materials or 9 in the evidence of Detective Sergeant Wright? 10 COMMISSIONER SIDNEY LINDEN: I haven't 11 read the whole transcript but I -- excuse me, I'm just 12 reading a part of it on the next page, on page 11 where 13 it says the answer to a question, I believe this would be 14 Sergeant Wright saying, this is page 11 at line 5. 15 It has traditional value of First Nations. 16 My understanding is an agreement so on. It's a sacred 17 site. 18 Is what -- somewhere I think there was 19 reference. 20 MR. MURRAY KLIPPENSTEIN: There is 21 reference, correct, Commissioner, to the fact that 22 there's a sacred site in there -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. MURRAY KLIPPENSTEIN: -- that they're 25 allowed to visit it. That is --


1 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. MURRAY KLIPPENSTEIN: -- quite 3 distinct. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. MURRAY KLIPPENSTEIN: And of, 6 frankly, of much less import than the assertion it's 7 their land, and one may disagree on various grounds, but 8 I -- my submission is, and I'm not trying to be 9 legalistic -- 10 COMMISSIONER SIDNEY LINDEN: No, no. 11 MR. MURRAY KLIPPENSTEIN: -- or critical. 12 I'm looking at this from my clients' point of view, that 13 in the Court process I would have had hoped that at least 14 that reference to illuminate to some degree, perhaps a 15 small degree, of the assertion being made, would have 16 made it in there. 17 Now, if I could also turn your attention, 18 Mr. McCabe, to the Motion record, paragraph 35 of the 19 Commission materials. I'll just ask one (1) or two (2) 20 more questions before, perhaps, it's break time. 21 COMMISSIONER SIDNEY LINDEN: I think we 22 should have a break. 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: In the Motion record, the Affidavit


1 of Mr. Kobayashi, handwritten page 16, paragraph 15, I'll 2 read it: 3 "Approximately one (1) hour later, 4 Judas Manning, one (1) of the people 5 occupying the Park, told all OPP 6 officers and Ministry of Natural 7 Resources employees, including myself, 8 in the Park to leave immediately. He 9 emphasized his point by breaking an OPP 10 cruiser window." 11 Now, I believe the evidence has been that 12 at that point Mr. Manning said, Get off our land. So I 13 am concerned that we have here a reference to a 14 particular incident that included somebody smashing a 15 police cruiser window -- 16 A: Hmm hmm. 17 Q: -- and omitting what is a fairly 18 strong assertion by Mr. Manning. 19 Now, my question is: Is there anywhere 20 else in this written material or the viva voce evidence, 21 and I don't think there is, which puts that additional 22 comment by Mr. Manning into the evidence? 23 A: I don't think there is, no, assuming 24 Mr. Manning made the comment. 25 COMMISSIONER SIDNEY LINDEN: I think we


1 should -- 2 MR. MURRAY KLIPPENSTEIN: I -- I probably 3 do have a few questions but this may be a good time to 4 have a break. 5 COMMISSIONER SIDNEY LINDEN: I think this 6 is a good time to break. Thank you. 7 THE REGISTRAR: This Inquiry will recess 8 for fifteen (15) minutes. 9 10 --- Upon recessing at 10:38 a.m. 11 --- Upon resuming at 10:58 a.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed. Please be seated. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 Just before you go on, I just want to clarify one (1) 17 point. 18 I'm certain that no one in this room 19 thinks otherwise but I didn't want to leave the 20 impression that I have any jurisdiction in this Inquiry 21 to deal with the validity of the surrender. I may have 22 said something that may have given somebody that 23 impression and I certainly didn't mean to do that. 24 You may make a submission at some point 25 but I certainly, and this Inquiry certainly doesn't have


1 any authority to determine the validity of the surrender. 2 I'm sure everybody is aware of that. Right? I think so, 3 yes. 4 Carry on, Mr. Klippenstein. 5 MR. MURRAY KLIPPENSTEIN: Thank you, 6 Commissioner. As I said earlier, this is, I recognize, 7 not a court of law in -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. MURRAY KLIPPENSTEIN: -- in that 10 sense. Having said that, I may make submissions with 11 respect to the -- 12 COMMISSIONER SIDNEY LINDEN: I understand 13 that. 14 MR. MURRAY KLIPPENSTEIN: -- the Treaty 15 and so forth, but I don't intend to, I think, transgress 16 on your point. 17 18 (BRIEF PAUSE) 19 20 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 21 Q: Mr. McCabe, we were discussing before 22 the break the question of whether or not there is any 23 reference that was put before the court, either in 24 writing or in viva voce evidence, to the apparent 25 assertion by the occupiers that it's their land.


1 And I take it you can't point to any such 2 putting forward of that particular point. right? 3 COMMISSIONER SIDNEY LINDEN: Well -- I'm 4 sorry. Were you going to answer that question or do you 5 want to let Mr. Downard object first? 6 Do you have a reference somewhere or -- 7 MR. PETER DOWNARD: Well, sir, my -- my 8 only concern is that the Witness is being asked about 9 what might be within the four (4) corners of a long 10 transcript. 11 COMMISSIONER SIDNEY LINDEN: Pages. 12 That's exactly right. And that's why I didn't want to go 13 there, but I don't know how much he does know or doesn't 14 know, or how much he's read or hasn't read. 15 MR. PETER DOWNARD: All right. Well, 16 just -- just out of -- of fairness, I -- I had a quick 17 look at the transcript, out of fairness, it seems to me 18 that it should be, you know, put to the Witness and put 19 on the record that in his submissions to the judge, at 20 page 42 of the transcript, he stated, at the bottom of 21 the page, and I quote: 22 "The issue, if there is an issue, 23 because there is no real knowledge on 24 the part of anyone as to the theory, 25 legal or otherwise, of the occupiers as


1 to why they appear to believe that they 2 have a right to occupy this Park and -- 3 the surrender that Your Honour is 4 familiar with." Unquote. 5 So, there's some suggestion as to whether 6 Mr. McCabe complied with the duty of full disclosure. 7 COMMISSIONER SIDNEY LINDEN: Yeah. 8 MR. PETER DOWNARD: And he made very 9 clear to the court that -- that the occupiers appeared to 10 believe they had a right to occupy the Park. 11 COMMISSIONER SIDNEY LINDEN: And that's-- 12 MR. PETER DOWNARD: The same statement is 13 made in substance at page 48, towards the top of the 14 page. So, out of fairness to -- to this -- this Witness, 15 it seems to me that should be put on the record. 16 COMMISSIONER SIDNEY LINDEN: We'd have to 17 go through the whole transcript and find everything. So, 18 all right, do you have anything you wanted to add to that 19 or did you have other references? 20 THE WITNESS: Well, what I wanted to add 21 just now is in relation to Mr. Klippenstein's question 22 about paragraph 15 of the Affidavit. 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 THE WITNESS: Mr. Klippenstein pointed 25 out that this refers to actions by Judas Manning at the


1 time of the occupation of the Park and -- and Mr. 2 Klippenstein pointed out that it doesn't say that, Get 3 off our land. 4 Just, I think, it should be noted in 5 connection with that, that my direction to the Ministry 6 of Natural Resources as to this affidavit was as I had 7 said earlier. I -- I think my direction to -- to the 8 Ministry lawyer who was working on this was that this 9 affidavit should deal with the title history of the Park 10 and as to the impact of the occupation on the operations 11 of the MNR and on the ability of the -- of the public to 12 -- to use the Park in the normal way. 13 And in the course of that, I'm, you know, 14 confident that I would have said to the Ministry 15 representative that the business about what is said by 16 the people occupying the Park is going to be led viva 17 voce through the OPP officer. 18 COMMISSIONER SIDNEY LINDEN: Well, at any 19 event, what is on the transcript and what is in the 20 material is a matter of the record and you will be making 21 argument about what is or isn't included. And I want to 22 confine your questions to what this Witness can answer 23 and how he could be helpful. 24 MR. MURRAY KLIPPENSTEIN: Yes. 25 THE WITNESS: Mr. Klippenstein, I'm sure


1 that the judge was under no illusion whatsoever as to the 2 fact that the people who occupied the Park were 3 representing themselves to have a right to do so. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: Well, he -- 7 A: And that he was under no, you know, 8 it beggers imagination in the circumstances of this case 9 to suggest that for a moment he was not aware of the 10 material fact that these people thought they had a right 11 to be there. They had said, No one else can be there. 12 Q: All right. My question was and 13 remains and I take your answer doesn't change the 14 information so far, there is so far as we know this 15 morning and despite the interventions of Ms. Twohig and 16 Mr. Downard, nowhere that anybody can point to after ten 17 (10) years of, in this evidence, the conveyance that the 18 protesters are saying, It's our land. 19 A: The transcript speaks for itself on 20 that point. 21 Q: All right. And would you -- 22 COMMISSIONER SIDNEY LINDEN: That -- 23 you've made that point. 24 MR. MURRAY KLIPPENSTEIN: Yes. 25 COMMISSIONER SIDNEY LINDEN: The


1 transcript speaks for itself. 2 3 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 4 Q: And when you just now addressed what 5 you thought was in the judge's mind, would you agree with 6 me that there is a difference between the judge thinking 7 they had some kind of right to be there and the judge 8 being advised that the protesters were saying, It's our 9 land? 10 Would you agree with me that saying, It's 11 our land, is a pretty strong statement? 12 A: Yeah it's a pretty strong statement 13 and the people in occupation in -- in the Park had made 14 it, you're pointing out explicitly, they'd also made it 15 implicitly and that fact was certainly before His Honour. 16 Q: Well, if they had made it implicitly 17 and explicitly, would you agree with me that it would be 18 more fair to the protesters in an ex parte injunction to 19 have their explicit statement of that before the court, 20 not just the implicit statement. 21 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 22 Twohig...? 23 MS. KIM TWOHIG: I don't think we have 24 any evidence that they had made an explicit statement. 25 There were reports that certain things had been said to


1 the police but Mr. McCabe has already testified that 2 their actions demonstrated the views that were rumoured 3 to have been expressed. 4 MR. MURRAY KLIPPENSTEIN: With respect, 5 Ms. Twohig is mischaracterizing the evidence and that's 6 not helpful. There is evidence that the -- 7 COMMISSIONER SIDNEY LINDEN: No. No. 8 MR. MURRAY KLIPPENSTEIN: -- occupiers 9 said, It's our land. 10 COMMISSIONER SIDNEY LINDEN: Said. Well, 11 there's evidence in the notes that you've drawn our 12 attention to. 13 MR. MURRAY KLIPPENSTEIN: We've -- we've 14 heard further evidence, including evidence of what Dudley 15 George said, and I don't think it's -- 16 COMMISSIONER SIDNEY LINDEN: You've drawn 17 our attention to some notes that make that claim. 18 MR. PETER DOWNARD: A small point. It 19 seems to me that there isn't evidence that anyone came 20 forward as a spokesman for the whole group and said the 21 whole group is of the view that it's of their land. 22 We have -- we had a report of one 23 individual, Bert Manning's statement, and I think if 24 we're going to be very careful about mischaracterizing 25 evidence, we should bear that in mind.


1 COMMISSIONER SIDNEY LINDEN: Yes. You 2 don't want to push this too far, Mr. Klippenstein. 3 You've made a point and the further you go, it's being 4 pushed back and I don't know if that's what you want to 5 do. 6 MR. MURRAY KLIPPENSTEIN: With respect, 7 since Mr. Downard has intervened to say this, let me just 8 address that. 9 My question never talked about a 10 spokesperson at all. 11 COMMISSIONER SIDNEY LINDEN: No. 12 MR. MURRAY KLIPPENSTEIN: My question 13 said, there is evidence -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. MURRAY KLIPPENSTEIN: -- that they 16 said it's our land, and my simple question, factually, 17 is: Does it or does that not appear in front of the 18 Court at all? 19 COMMISSIONER SIDNEY LINDEN: You've 20 already asked that question and I think he's answered it 21 and I think the point has been made. That's my point. I 22 think you've made that point and I think you should carry 23 on. 24 The material will speak for itself and 25 we'll read it and you'll make your argument when the time


1 comes. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: Would you agree with me, Mr. McCabe, 7 and this is a different point, that the assertion that 8 it's our land, in the context of a dispute that centers 9 around the surrender, is a very important assertion to 10 make by the protesters? 11 A: You're assuming that there is a 12 dispute centering around the -- that the -- centering 13 around the -- the surrender. 14 Q: Well, let me just ask you about that. 15 Would you agree with me that there is a clash between the 16 surrender that the Province put forward and the statement 17 by the protesters that it's our land. 18 A: Yes. 19 Q: There is a very serious contradiction 20 in those two (2) positions; is that fair? 21 A: Yes. 22 Q: And what we have in these Court 23 materials is the very important assertion by the Province 24 that there was a surrender and of equal importance on 25 that particular issue, is the assertion that, It's our


1 land, by the protesters. 2 Would you agree with me? 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 5 (BRIEF PAUSE) 6 7 THE WITNESS: Yes. Now, this proceeding, 8 this injunction is in relation to the conduct of the 9 people in the Park in its, you know, in its -- in its 10 totality. This is not the resolution of a land claim. 11 This is a case in which there is evidence 12 of damage to, destruction of, theft of property. There 13 are threats being made by the people in the Park that 14 we're going to take the land between -- to the west of 15 this Park all the day down to the Kettle Point reserve. 16 There are threats about guns. There is 17 intoxication. There is general bellicose posture by the 18 people in the Park. 19 The -- and so, you know, the -- It's our 20 land, is a -- is -- is an element in that, but it is by 21 no means the, you know, the totality of the -- of the 22 issue on this application for an injunction. 23 COMMISSIONER SIDNEY LINDEN: I suggested 24 some time ago that you move on, off this point, and that 25 there would be -- we're going to start reviewing matters


1 now through this Witness. But, I don't think it's 2 appropriate at all, so I'm asking you, respectfully, to 3 move off this point. 4 THE WITNESS: All right. In raising 5 those points, I'm referring to the evidence of the police 6 officer that was brought before the Justice. 7 COMMISSIONER SIDNEY LINDEN: No, I'm 8 aware of that but we've heard some of that evidence from 9 some other sources that are -- 10 MR. MURRAY KLIPPENSTEIN: And, 11 Commissioner, I have some further questions which I 12 believe are legitimate questions arising from this 13 Witness' answers. If, however, you are ruling that I 14 cannot ask -- 15 COMMISSIONER SIDNEY LINDEN: Well, I -- 16 MR. MURRAY KLIPPENSTEIN: -- those 17 questions, I will move on. 18 COMMISSIONER SIDNEY LINDEN: I think that 19 we're opening up areas through this Witness. I say the 20 areas that are being discussed are relevant and I expect 21 that we will be dealing with them, but I don't think that 22 this Witness has any more to add. 23 The point that you wanted to make was that 24 the materials don't include an assertion that, It's our 25 land. And I don't think anybody has pointed to anything


1 in the materials. That's a fact that I think is 2 important and you've made it. 3 MR. MURRAY KLIPPENSTEIN: Hmm hmm. 4 COMMISSIONER SIDNEY LINDEN: And I think 5 you should move on. 6 MR. MURRAY KLIPPENSTEIN: All right. 7 Thank you. 8 9 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 10 Q: We've heard evidence, Mr. McCabe, 11 that in one (1) of the tapes that -- of the -- of a 12 conversation on September 5th between Inspector Fox and 13 Inspector Carson, Inspector Fox describes part of the IMC 14 meeting of September 5th and says that the Premier wants 15 them out and then Inspector Fox says that he talked about 16 the fact that Native people are sometimes a little 17 differently situated because they have treaties which go 18 back before Confederation. 19 The evidence is that Mr. Fox raised that 20 issue of treaties. 21 A: In his conversation with a fellow 22 police officer. 23 Q: Yes. 24 A: Right. 25 Q: And that -- and he says -- he raised


1 it in the meeting on September 5th, which you did not 2 attend, I take it; right? 3 A: Right. 4 Q: Given that one (1) of the police 5 officers involved saw fit to raise the existence of 6 treaties as a possibly relevant factor, can you explain 7 why there appears to be no reference to treaties or a 8 treaty at all in the court materials, either in writing 9 or the viva voce evidence? 10 MS. KIM TWOHIG: Mr. Commissioner, the -- 11 the reference to what Mr. Fox said in a meeting was in a 12 completely different context that dealt with the 13 development of options for responding to the occupation. 14 Mr. McCabe has testified about the 15 instructions he received and what he did pursuant to 16 those instructions. And I would have no objection if My 17 Friend were to ask questions about what Mr. McCabe did, 18 but to revisit the reasons for the application for the 19 injunction, I submit, is not fruitful and not fair to 20 this Witness. 21 MR. MURRAY KLIPPENSTEIN: Well, I am 22 asking what the reason is that there is no reference, in 23 any evidence before the court, to the Treaty that applied 24 to this area. 25 COMMISSIONER SIDNEY LINDEN: Well, I --


1 MR. MURRAY KLIPPENSTEIN: That's what My 2 Friend, apparently, said I could do. So that's my 3 question. 4 COMMISSIONER SIDNEY LINDEN: There 5 doesn't appear to be any reference to a treaty in the 6 material. 7 MR. MURRAY KLIPPENSTEIN: That's correct. 8 COMMISSIONER SIDNEY LINDEN: And you're 9 asking him -- 10 MR. MURRAY KLIPPENSTEIN: Why. 11 COMMISSIONER SIDNEY LINDEN: -- why not. 12 MR. MURRAY KLIPPENSTEIN: Why not, yes. 13 Either in the written materials or the viva voce evidence 14 of -- presented to the court. 15 THE WITNESS: The land was subsequently 16 surrendered for sale. It was sold. It was bought by the 17 Province of Ontario. 18 19 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 20 Q: So it was the surrender which is the 21 reason for not mentioning the Treaty? 22 A: The surrender, in the context, the -- 23 the fact that the surrender exists, together with the 24 context of this proceeding to move the court for an 25 injunction order in relation to the occupation of the


1 Park and -- and the, you know, the particular activities 2 that were being engaged in by -- by those who had taken 3 possession of the Park, who had taken forcible possession 4 of the Park to the exclusion of the Ministry of Natural 5 Resources and to the exclusion of the public, remembering 6 that this is not a -- this is -- this is not litigation 7 concerning the -- the validity of a land claim. 8 Q: Well, with respect, Mr. McCabe, this 9 is an injunction order seeking that the protestors remove 10 themselves or be removed from those lands. And you've 11 mentioned the context in as a forcible taking possession 12 of the land. 13 That is precisely why I am asking you why 14 the Treaty and the fact the statement, It's our land, 15 were not in it, because if, in fact, it is land 16 guaranteed to them by the Treaty and it's their land, it 17 puts their -- 18 A: Right. 19 Q: -- their -- their taking into -- 20 A: Right. 21 Q: -- a different context. 22 COMMISSIONER SIDNEY LINDEN: You're back 23 over the areas that I've asked you to move on from, Mr. 24 Klippenstein. You've made the point that I think you can 25 make with this Witness. That's what I'm saying. You've


1 made the point that you can with this Witness on this 2 issue. 3 4 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 5 Q: All right. In your evidence, Mr. 6 Worme, I believe, touched on a document from 1993 at Tab 7 6 in your Commission documents binder. And that's 8 Friday, May 21, 1993. 9 A: I'm sorry, the tab number? 10 Q: Tab 6. That's Exhibit P-712. Thank 11 you Mr. Worme. And at page 5 of that document; do you 12 see page 5. 13 A: Yes. 14 Q: And under the heading, "Ipperwash 15 Provincial Park," do you see the first paragraph? 16 A: Yes. 17 Q: "Andrew McDonald questioned whether 18 there is any issue regarding the 19 validity -- 20 "Andrew McDonald questioned whether 21 there is any issue regarding the 22 validity of the 1928 surrender for the 23 sale." 24 Do you see that? 25 A: Yes.


1 Q: So obviously in -- in 1993 Mr. 2 McDonald had pointed out that this might be an issue. 3 Is that right? 4 A: You know, I'm not sure that that's a 5 fair characterization of -- of what he's pointing out. 6 Again, I can't remember the context of this -- of this 7 meeting. But I take it there's concern about Ipperwash 8 Provincial Park. 9 And my surmise is that what Mr. McDonald 10 is referring to here is if there becomes an issue with 11 respect to the Ipperwash Provincial Park, we better be 12 ready with the evidence about the validity of the 1928 13 surrender for sale. 14 I mean that's a surmise. It may be he's 15 saying, Is there an issue? So to that extent, you know, 16 that's -- that's a possibility. I'm just saying that 17 it's not the necessary implication of -- of what's being 18 said here. 19 Q: Right. And then several paragraphs 20 below that it says, "Tim McCabe." 21 Do you see that? 22 A: Yes. 23 Q: "Tim McCabe stated that a longer term 24 response must be developed regarding: 25 1. The bailiff's order, and


1 2. The basis of the claim to the Park, 2 i.e., the surrender." 3 A: Yes. 4 Q: Would you agree with me that one -- 5 certainly one legitimate and obvious possible basis for a 6 claim to the Park is the Treaty which said that those 7 lands would be native lands at all times or after? 8 A: Well I think what I'm saying here, 9 the basis of the Government's claim to the Park, i.e., 10 the surrender. And I think what's going on here is that, 11 well if -- if I'm going to be asked at some point to 12 bring an injunction, say, in relation to the Ipperwash 13 Provincial Park, let's get together the information about 14 the title history of the Park. 15 Q: So when you say the basis of the 16 claim to the Park, you mean the Province's claim to the 17 Park? 18 A: Yes. 19 Q: All right. And you say, i.e., the 20 surrender. So the surrender is the basis for the 21 Province's claim to the Park? 22 A: Yes. Well it's the -- it's the first 23 element in a -- in a chain of events that leads to title 24 in the Province. 25 Q: And it's a key part of the chain?


1 A: Yes. 2 Q: And when you're talking about a 3 native occupation as we are here, then in terms of 4 relevance, that's the key chain -- part of the chain. 5 Is that fair? 6 A: Yes. 7 COMMISSIONER SIDNEY LINDEN: Okay. If 8 I'm not mistaken, this Witness said that at least an hour 9 ago. I may be mistaken but I believe this Witness said 10 that so -- 11 MR. MURRAY KLIPPENSTEIN: I wanted to 12 clarify that he certainly did not say it in the context 13 of the statements that he apparently made in these 14 documents, which is why I raise it. I apologize if 15 that's repetitive. 16 COMMISSIONER SIDNEY LINDEN: Well that's 17 fine. Carry on. I just want to keep moving, Mr. 18 Klippenstein. Moving forward not just moving. Moving 19 forward, I'm sorry. 20 21 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 22 Q: If I could ask you to turn to the -- 23 one of the document binders we provided to you, Mr. 24 McCabe, it's a binder of various miscellaneous documents 25 and it's -- I am -- it's not the meeting notes binder.


1 2 (BRIEF PAUSE) 3 4 Q: And if you could turn to Tab 18, 5 which is the Decision of Mr. Justice Killeen of August 6 18th, 1995. 7 Do you see that? 8 A: Yes. 9 Q: And so this Decision was released, 10 apparently, a couple of weeks before the occupation at 11 Ipperwash and the injunction application, correct? 12 A: Apparently so, yes. 13 Q: And you were aware of this 14 litigation, in part because you'd met with Charlotte 15 Bell, one of the senior legal Counsel for Canada who was 16 involved with this litigation, correct? 17 A: Yes. As I recall a meeting a couple 18 of years earlier, yes. 19 Q: Yes. And I -- I take it you're not 20 sure. You may have actually been on holidays around this 21 time towards the end of August and may not have actually 22 come into the -- to work during the period just after 23 August 18, so you may have had limited knowledge of this 24 Decision coming out. 25 Is that fair?


1 A: That's possible, yes. 2 Q: Now, if you could turn to page 83 of 3 that Court Decision and I'm just going to highlight one 4 point in which the Court summarizes something in relation 5 to surrenders, and at the middle of the page on page 83, 6 you see the paragraph beginning Section 49(1)? 7 A: Yes. 8 Q: And this paragraph is the Court's 9 summary of Section 49(1) of the applicable Indian Act and 10 deals with some elements of a surrender and the Court 11 says: 12 "Section 49(1) may be summarized in 13 this way. It states that no surrender 14 is valid or binding unless [and let me 15 drop down to item number 3], the 16 surrender or Council must have been 17 called according to the rules of the 18 Band." 19 Do you see that? 20 A: Yes. 21 Q: And so although this Court Decision 22 upheld, apparently, a surrender over at the Kettle Point 23 reserve, the Court also elaborates, apparently, some 24 circumstances in which a surrender will be ruled invalid. 25 Is that fair?


1 Does that appear to be the case; is that 2 your understanding? 3 A: Yeah, I haven't read the -- this 4 Decision but that appears to be the case, yes. 5 Q: Yes. And I'd like to ask you about 6 that specific point, quickly, in relation to the Motion 7 materials you filed and that's in the Commission binder 8 at 35, Tab 35. 9 10 (BRIEF PAUSE) 11 12 Q: And if you could turn, in that Motion 13 record, to handwritten page 22. 14 15 (BRIEF PAUSE) 16 17 Q: Do you see that? 18 A: Yes. 19 Q: And it's headed at the top, "Dominion 20 of Canada," and it appears to be, and I'm suggesting it 21 is, an affidavit related to the surrender. 22 Do you see that? 23 A: Yes. 24 Q: And this was filed by you or Ms. 25 Christie with the Court in support of your Motion as part


1 of this surrender information. 2 Is that fair? 3 A: Yes, it appears so, yes. 4 Q: Now, a quarter of the way down that 5 affidavit, you see the words: 6 "And the said Thomas Paul (phonetic) 7 [who's identified as the name of the 8 agent] for himself sayeth..." 9 Do you see that? 10 A: Yes. 11 Q: And the first paragraph thereafter 12 talks about a vote surrendering the land. 13 Do you see that? 14 A: Yes. 15 Q: And the next paragraph says, and I'll 16 read it, that: 17 "Such assent was given at the meeting 18 or Council of the said band summoned 19 for that purpose and according to its 20 rules or the rules of the Department." 21 Do you see that? 22 A: Yes. 23 Q: I'd like to have you turn your 24 attention to the phrase: 25 "According to its rules or the rules of


1 the Department." 2 A: Yes. 3 Q: Now, my question relates to the word 4 "or" and the fact that the Indian agent appears to be 5 swearing in relation to the -- the surrender of 1928, 6 that the meeting, the relevant meeting was called either 7 according to the rules of the Band or the rules of the 8 Department. 9 Does that seem like a fair reading? 10 A: Yes. 11 Q: And the point -- 12 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 13 Twohig? 14 MS. KIM TWOHIG: Excuse me. It appears 15 that My Friend is getting into questions that may relate 16 to the validity of the surrender, and I thought that you 17 had made it clear that -- 18 COMMISSIONER SIDNEY LINDEN: Well -- 19 MS. KIM TWOHIG: -- we didn't need to 20 pursue this. 21 COMMISSIONER SIDNEY LINDEN: -- I hope 22 that I'm not going to be asked to rule on the validity of 23 the surrender. I don't -- 24 MR. MURRAY KLIPPENSTEIN: I am not, as I 25 have said --


1 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. MURRAY KLIPPENSTEIN: -- today and on 3 other days, asking you to do that. At the same time, 4 what I am doing here is proposing to ask questions about 5 what information was before the court, whether it was 6 adequate information, and how the entire court 7 application injunction should be viewed and assessed. 8 And so it's not a legal question that I'm arriving at 9 here for a ruling. 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MR. MURRAY KLIPPENSTEIN: Perhaps I could 12 finish my question. 13 COMMISSIONER SIDNEY LINDEN: Yes. I 14 think I need to have you finish your question and I need 15 to know where you're going, but I -- 16 MR. MURRAY KLIPPENSTEIN: Yes. 17 COMMISSIONER SIDNEY LINDEN: -- I know 18 you're not going to be asking me to deal with the 19 validity of the surrender, so. 20 MR. MURRAY KLIPPENSTEIN: Yes. 21 COMMISSIONER SIDNEY LINDEN: That's what 22 Ms. Twohig is worried about, that you're going there, and 23 I don't think you are. 24 MS. KIM TWOHIG: Well, that's partly it. 25 But partly, if we're dealing with the issue of the


1 adequacy of the materials before the court, surely that - 2 - that depends on what the issues before the court are. 3 And -- 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 MS. KIM TWOHIG: -- My Friend seems to be 6 assuming that there may be some issue about the validity 7 of the surrender and, therefore, whether the materials 8 are valid. But Mr. McCabe has made quite clear, as to 9 the materials that were filed with the court, what the 10 issues were on September 7th, 1995. 11 MR. MURRAY KLIPPENSTEIN: With respect, 12 that's part of why I said earlier in a question to look 13 at this from the point of view of my client's and the 14 First Nations People. If -- if we're here just to look 15 at it from the point of view -- view of the Province, 16 that's one matter, but I don't think we are. 17 And this is partly why I have asked these 18 questions, to ascertain the role of the surrender. And 19 My Friend has said it's -- it's certainly central to the 20 application he put forward to the injunction sought. 21 Now, if -- if My Friend for the Province 22 is suggesting that the surrender is a non-issue, well, 23 with respect, that's certainly not what -- the way the -- 24 the protestors viewed it. 25 And that's why I put forward in -- in my


1 questions a question of the statement, It's our land. 2 And one can reject or whatever but this is, in my view, 3 central -- in my submission, to what happened and 4 understanding what happened on September 4th, 5th and 5 6th. The -- the Province relied on the surrender to an 6 enormous extent. 7 COMMISSIONER SIDNEY LINDEN: That's -- 8 I'm sorry. Yes...? 9 MS. KIM TWOHIG: Just briefly in 10 response, Mr. Commissioner. Mr. McCabe did testify that 11 the surrender was the foundation of the Province's chain 12 of title, which he wanted to establish in terms of the ex 13 parte interlocutory injunction. 14 The transcript of the proceedings makes it 15 clear that he contemplated that the broader issues 16 regarding ownership and entitlement to the land in 17 question would be dealt with in the larger proceeding, 18 not the proceeding on September 7th. 19 MR. JONATHON GEORGE: Commissioner, inso 20 -- from the First Nations' perspective, insofar as the 21 issue of the surrender, the existence of the surrender 22 and whether or not that was important from the Province's 23 point of view in -- in dealing with the injunction 24 process, the difficulty with My Friend's last question is 25 it -- and I don't think it's his intention to do so, it's


1 necessarily going to illicit from this Witness perhaps an 2 opinion on the validity of the surrender. 3 And -- and I think that's problematic. 4 And I think Mr. Henderson has stated that view several 5 times in the past. So -- so I simply make that comment 6 to you. 7 COMMISSIONER SIDNEY LINDEN: Well -- 8 MR. MURRAY KLIPPENSTEIN: With respect, I 9 -- I don't know what My Friend will but certainly from my 10 client's point of view this is a very important issue and 11 I -- I appreciate that hopefully My Friends will make 12 something -- some submissions of assistance to you, 13 Commissioner, on this point. 14 So, I don't -- 15 COMMISSIONER SIDNEY LINDEN: Well, I just 16 want to clarify -- well, let's hear from Mr. Rosenthal. 17 He usually has enlightening comments. 18 MR. PETER ROSENTHAL: Thank you very 19 much, Mr. Commissioner. I've restrained myself from 20 standing up in the last hour because I -- you've advised 21 us that we should try not to have multiple persons 22 dealing with objections and so on. 23 But I do want to get into related areas 24 and I must protect it for myself. 25 COMMISSIONER SIDNEY LINDEN: You're going


1 to get into these same areas? 2 MR. PETER ROSENTHAL: Well, I was going - 3 - depending upon what's left and so on, but -- but, no, I 4 don't want to duplicate anything, but I do want to 5 clarify things and it is important to know whether the 6 materials that were placed before the Court fulfilled the 7 obligation under an ex parte injunction of fairly 8 representing the other side, as well. 9 And that -- and it's clear from the 10 discussion and from Mr. McCabe's submissions on that day 11 in front of the Judge, that the assertion that title was 12 absolutely clear was the foundation of the whole argument 13 as to why the injunction should be granted. 14 And if there were aspects of the materials 15 that should have been brought before the Court that would 16 suggest that the question of the title was somewhat 17 problematic, it might be that that was Mr. McCabe's 18 responsibility to bring before the Court. 19 Now, it's not a question of your deciding 20 whether the surrender was valid or not. It's a question 21 of looking at these materials, and Mr. McCabe is the 22 person who was responsible for producing these materials 23 to the Court, and Mr. Klippenstein must be able to 24 examine the materials from that point of view. 25 It's not a question of deciding about the


1 surrender at all. 2 COMMISSIONER SIDNEY LINDEN: I think I 3 agree with you, and I think that's what I'm trying to do. 4 I'm trying to draw a line -- 5 MR. PETER ROSENTHAL: Yes. 6 COMMISSIONER SIDNEY LINDEN: -- between 7 determining the validity, the adequacy, the completeness 8 of the materials that were before the Court. 9 MR. PETER ROSENTHAL: Yes. 10 COMMISSIONER SIDNEY LINDEN: I think 11 that's what I think is -- is appropriate and as long as 12 that's what Mr. Klippenstein's trying to do, I think it's 13 appropriate. 14 Were you going to say something? Sorry, I 15 think I -- 16 MR. PETER ROSENTHAL: Thank you, 17 Commissioner, that's -- that's what I want to see done. 18 And so I wanted to protect my interests in -- 19 COMMISSIONER SIDNEY LINDEN: But, I don't 20 want -- 21 MR. PETER ROSENTHAL: -- seeing that's 22 done -- 23 COMMISSIONER SIDNEY LINDEN: -- it to go 24 beyond that. The adequacy or the completeness or the 25 accuracy of the materials before the Court I think --


1 MR. DONALD WORME: And with respect, Mr. 2 Commissioner, I would suggest that that is a question of 3 law that was to be decided by the Justice before whom 4 these materials were put and I submit that, in fact, that 5 that Decision had, in fact, been made. 6 I mean, if Mr. Klippenstein now wants to 7 enquire of this Witness why he didn't put this document 8 or that document in, perhaps he can say it, but I don't 9 think for the -- for the purposes of this Inquiry that it 10 really matters. 11 The record is there; it speaks for itself 12 and I think that he can argue whether or not those 13 materials at the end of the day were sufficient or not to 14 discharge the obligation of... 15 COMMISSIONER SIDNEY LINDEN: Yes, I 16 agree, Mr. Worme, but he needs to ask -- there's some 17 facts that he needs in order to make that argument. 18 I'm trying to keep this opening narrow. I 19 think I've made that clear and I'm trying to keep this 20 line of questioning narrow, because I don't want to re- 21 hear the injunction, obviously, any more than I want to 22 determine the validity of the surrender. 23 So if you're asking him about the 24 materials that he put before the Court, I think that's 25 fair. What is before -- what was before the Court and


1 what wasn't. But this isn't the place to make the 2 argument. 3 Now, this Affidavit was before the Court 4 and then whether it was adequate or not or -- you can 5 make that argument later on, if you wish to. 6 But I don't want to make that -- I don't 7 want you to make that argument now or through this 8 Witness. 9 MR. MURRAY KLIPPENSTEIN: I had no 10 intention of, Commissioner. Thank you for that 11 clarification. I believe I intended to and will abide by 12 that -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. MURRAY KLIPPENSTEIN: -- point on 15 this. 16 COMMISSIONER SIDNEY LINDEN: The question 17 is the materials. There is an onus on Counsel in an ex 18 parte injunction to provide full and complete disclosure. 19 MR. MURRAY KLIPPENSTEIN: Hmm hmm. 20 COMMISSIONER SIDNEY LINDEN: And I think 21 what materials were before the Court is a legitimate 22 enquiry. 23 MR. MURRAY KLIPPENSTEIN: Yes. Well, 24 thank you, and I hope, Commissioner, to follow exactly 25 that in my next few questions.


1 2 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 3 Q: Mr. McCabe, the Affidavits of the 4 Indian Agent in support of the surrender says, with 5 respect to the issue of how the surrender meeting was 6 called, that it was called: 7 "According to the rules of the Band or 8 according to the rules of the 9 Department." 10 That's what the Affidavit evidence of the 11 Indian agent is, correct? 12 A: Yes. 13 Q: However, I just took you to a portion 14 of Justice Killeen's Decision released only a few weeks 15 before the injunction in which one of the things the 16 Court says is that a surrender can be invalid, in other 17 words void ab initio, if the requirement is not followed, 18 that the injunction -- that the surrender meeting was 19 called according to the rules of the Band. 20 Now, we may say it's a bit odd to make the 21 method of calling a meeting one of the fundamental 22 preconditions of a valid surrender, but that's the court 23 speaking, not me. 24 Now, my question is according to the 25 wording of this affidavit, it appears that the Indian


1 Agent is saying that the meeting was called, possibly, 2 according to the rules of the Band, but possibly 3 according to the rules of the Department, correct? 4 A: Yes. I'm sure you know, Mr. 5 Klippenstein, that these affidavits, these documents it - 6 - that it -- in the case of twentieth century surrenders 7 of -- of Indian lands in Canada are standard forms. 8 And what we have here is the standard form 9 that the -- that the agent would have had. These are 10 printed forms. He hasn't -- he hasn't -- here's me 11 giving evidence as to what happened in 1927. But, he -- 12 these are not customized affidavits created for 13 individual instances of surrenders. 14 Now, when -- it might be an interesting 15 exercise to determine when this particular standard form 16 was created. Was that before or after certain amendments 17 to the Indian Act and so forth? 18 Or it -- it may be that, you know, in 19 certain -- in certain circumstances it may be that there 20 are no rules of the Band. 21 COMMISSIONER SIDNEY LINDEN: We're going 22 places that I don't want to go. I'm just telling you 23 that flat out now. I mean this affidavit was signed in 24 1927, is it? Is that the date of the affidavit? 25 THE WITNESS: Yes.


1 COMMISSIONER SIDNEY LINDEN: Yes. 2 THE WITNESS: Well the date of the 3 surrender. 4 COMMISSIONER SIDNEY LINDEN: What's the 5 date of the affidavit. It'll be in the '20s? I can't 6 see. I can't tell from the document. 7 THE WITNESS: This would be the 1920's. 8 COMMISSIONER SIDNEY LINDEN: The date. I 9 assumed it was the '20s. But, I mean I can't see where 10 you're going, Mr. Klippenstein in some of these questions 11 except to challenge either the surrender or the validity 12 of the injunction. One or the other. And I don't want 13 to do either. So, I think you're moving into areas that 14 are not the subject of this Inquiry. 15 Yes, Mr. -- 16 MR. JONATHON GEORGE: I don't want to 17 simply reiterate what the Commissioner -- what you just 18 said, Commissioner. But, the answer that this Witness 19 just gave highlighted the problem I -- I did not -- 20 COMMISSIONER SIDNEY LINDEN: It does, it 21 highlights it. The answers are making it clear that 22 we're going in places that we have no business going and 23 I do not want to pursue this. 24 MR. MURRAY KLIPPENSTEIN: Well, my 25 question, Commissioner is this: Where in the evidence


1 before the court is there evidence that the rules of the 2 Band were followed -- 3 COMMISSIONER SIDNEY LINDEN: That's what 4 I mean. Those are not questions that I think are 5 appropriate for this Inquiry. So, please move on. I 6 really think that we're getting into areas that we have 7 no business going into at this point. 8 MR. MURRAY KLIPPENSTEIN: Well, with 9 respect, if I may address that, Commissioner, from my 10 client's point of view who said, This is our land -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. MURRAY KLIPPENSTEIN: -- and in 13 fact -- 14 COMMISSIONER SIDNEY LINDEN: That's not 15 in the affidavit. It's not in the materials. You've 16 made that point and you can make whatever argument you 17 choose to make from that fact at the appropriate time. 18 MR. MURRAY KLIPPENSTEIN: I'm -- that's 19 not the point I'm making. As I -- I believe the Witness 20 has not answered the question which I am trying to get to 21 which is: Where in the materials before the court on 22 September 6th and 7th, is the backup material on the 23 surrender that evidence which says that one of the 24 essential preconditions of the surrender were met, 25 namely, that a meeting was called according to the rules


1 of the Band. 2 COMMISSIONER SIDNEY LINDEN: Well that's 3 the affidavit. It's the affidavit, I gather that -- 4 MR. MURRAY KLIPPENSTEIN: Well this 5 affidavit, in my submission, does not fulfill that 6 requirement. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 That's an argument that you can make. 9 MR. MURRAY KLIPPENSTEIN: And then my 10 question which I asked to the Witness is where is the 11 evidence? 12 COMMISSIONER SIDNEY LINDEN: The 13 materials before us, the record is before us. So, you 14 can make that argument in due course. 15 MR. MURRAY KLIPPENSTEIN: Well, if I can 16 -- since I'm -- forgive me if I'm not clear that -- 17 COMMISSIONER SIDNEY LINDEN: Keep -- 18 MR. MURRAY KLIPPENSTEIN: -- the Witness 19 has answered that question and if -- if once I have asked 20 that question then I have no further questions on this 21 point. 22 COMMISSIONER SIDNEY LINDEN: Yes, okay. 23 Just hold that thought. 24 Yes, Ms. Twohig...? 25 MS. KIM TWOHIG: I think if the argument


1 is going to be made by Mr. Klippenstein that there was 2 somehow a lack of full and fair disclosure, Mr. McCabe 3 should be asked: Do you think that your obligation of 4 full and fair disclosure required you to put certain 5 materials before the court? 6 And if not he should be permitted to say 7 why he didn't. 8 But, for My Friend to just say where in 9 the materials is this and then leap to the argument that 10 there was a lack of fair and full disclosure, I submit is 11 not fair. 12 COMMISSIONER SIDNEY LINDEN: Well, you 13 may be right there too. 14 MR. MURRAY KLIPPENSTEIN: I -- I haven't 15 made any leaps. I just want to ask a fast factual 16 question. 17 COMMISSIONER SIDNEY LINDEN: All right. 18 19 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 20 Q: Mr. McCabe, can you tell me where in 21 the materials submitted to the court, either in writing 22 or in viva voce evidence, is there evidence that the 1928 23 surrender was conducted -- meeting was conducted 24 according to the rules of the Band? 25 Is there such evidence in the Motion


1 materials in evidence you put to the Court? 2 MR. DONALD WORME: I'm sorry, Mr. 3 Commissioner, but I don't think that that's an 4 appropriate question. 5 COMMISSIONER SIDNEY LINDEN: Hmm hmm. 6 MR. DONALD WORME: The fact of the matter 7 is that Mr. Klippenstein, with all due respect, is asking 8 now, this Witness, to look beyond the documents, to look 9 beyond the title that he had, to look beyond -- 10 COMMISSIONER SIDNEY LINDEN: And I -- 11 MR. DONALD WORME: -- the materials that 12 he filed and that -- 13 COMMISSIONER SIDNEY LINDEN: In the next 14 part -- 15 MR. DONALD WORME: -- simply isn't 16 appropriate. 17 COMMISSIONER SIDNEY LINDEN: I think -- 18 MR. DONALD WORME: It is quite 19 appropriate for Mr. Klippenstein to make the argument, as 20 I've stated earlier, in his argument, that there was 21 insufficient closure at that particular time. 22 But, it isn't the time for him to make 23 that argument now, with all due respect. 24 COMMISSIONER SIDNEY LINDEN: No, I agree. 25 I agree with that and I want to move on.


1 MR. MURRAY KLIPPENSTEIN: Well, 2 Commissioner, just so I can understand where I'm at, I've 3 asked the question -- the Witness a factual question 4 about the evidence in the Motion record -- 5 COMMISSIONER SIDNEY LINDEN: Is there -- 6 is there -- the question is, is there? 7 MR. MURRAY KLIPPENSTEIN: Yes. 8 COMMISSIONER SIDNEY LINDEN: And that's a 9 factual question. 10 MR. MURRAY KLIPPENSTEIN: I believe I've 11 asked that question several times, and that is my 12 question. 13 COMMISSIONER SIDNEY LINDEN: All right. 14 The question is: Is there any mat -- anything before the 15 -- we can see that. I mean, the Motion record is before 16 us. 17 And I'm not sure that that 's a helpful 18 question and I don't think the answer will be any more 19 illuminating than reviewing the material and making the 20 argument. 21 MR. MURRAY KLIPPENSTEIN: All right. 22 Thank you. I won't -- 23 COMMISSIONER SIDNEY LINDEN: Thank you. 24 THE WITNESS: If I may, Commissioner, at 25 this point it -- it, you know, it's apparent to me that


1 if there is a failure to disclose material to the Court 2 on this instance, the liability is mine. It's not the 3 Government. It's me, as a member of the Law Society of 4 Upper Canada going before this Court and according to 5 your suggestion, failing to disclose the -- fully, 6 information before the Court. 7 If that's an issue for this Commission, I 8 should be asking where I can get funding for my own 9 Counsel -- 10 COMMISSIONER SIDNEY LINDEN: I agree with 11 you. I agree with you, and that's why I'm not going 12 there. 13 MR. MURRAY KLIPPENSTEIN: I did not ask 14 that question, with respect. 15 COMMISSIONER SIDNEY LINDEN: No, but he's 16 concerned about it and he's legitimately concerned. And 17 I want to move on. I can't make it any clearer, I'd like 18 to move on. 19 MR. MURRAY KLIPPENSTEIN: I have no 20 further questions, Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. 23 Well, I hope, Mr. Rosenthal, you're not 24 going to go over the same ground. 25 You never do, or you rarely do, but I do


1 not want to go over the same ground and deal with the 2 same issues. 3 MR. PETER ROSENTHAL: I won't -- I 4 certainly won't... 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: I hope 9 there's nothing I said, Mr. Klippenstein, that you -- 10 makes you feel that you are inhibited in any way, shape 11 or form from making any submission of argument that you 12 wish to, in due course, based on the evidence. 13 MR. MURRAY KLIPPENSTEIN: Well, 14 Commissioner, I do have a concern in that regard. 15 COMMISSIONER SIDNEY LINDEN: Well -- 16 MR. MURRAY KLIPPENSTEIN: I do feel 17 inhibited in my ability to make my arguments. 18 COMMISSIONER SIDNEY LINDEN: All right. 19 MR. MURRAY KLIPPENSTEIN: And I just want 20 that stated on the record. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 Carry on, Mr. Rosenthal. 23 MR. PETER ROSENTHAL: Perhaps, if I may, 24 good morning, no fault to you, Mr. Commissioner, and good 25 morning, Mr. McCabe.


1 May I just clarify one general thing. We 2 all do understand, of course, I think, that you cannot 3 make any ruling about the validity of the surrender. 4 On the other hand, it would seem that 5 there's no precluding the possibility that you might make 6 a recommendation about the Park. You might recommend, 7 for example, that the Province give up title to the Park 8 based on various things that have happened. 9 And in the course of, perhaps, our making 10 submissions in support of your making such a 11 recommendation, we might wish to explore the surrender to 12 some extent. Not that you would make any ruling about 13 the surrender but if it were established to you that 14 there were some questions about the surrender, that might 15 be one of many aspects that might lead you to make such a 16 recommendation. 17 We can't preclude that. I'm just putting 18 -- suggesting that in the record. 19 COMMISSIONER SIDNEY LINDEN: That's for 20 the record. It's not for this Witness. 21 MR. PETER ROSENTHAL: No and no, but I -- 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 MR. PETER ROSENTHAL: -- just that arose 24 this morning and I just wanted to clarify -- 25 COMMISSIONER SIDNEY LINDEN: I


1 understand. 2 MR. PETER ROSENTHAL: -- my position in 3 that respect. 4 COMMISSIONER SIDNEY LINDEN: I do 5 understand. 6 MR. PETER ROSENTHAL: And then move on, 7 if I may. 8 COMMISSIONER SIDNEY LINDEN: What I'm 9 trying to do, and I tried to do with Mr. Klippenstein, is 10 confine the questioning to what this Witness can do to 11 help us. 12 This is a fact witness that we have here-- 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: -- and I'd 15 like to confine questions to -- questions that the 16 Witness can answer. 17 MR. PETER ROSENTHAL: Yes. 18 COMMISSIONER SIDNEY LINDEN: Carry on. 19 MR. PETER ROSENTHAL: Yes, indeed. No, I 20 wasn't going to get any assistance on that possible 21 recommendation from this Witness and I just wanted to 22 make sure that it wasn't precluded that I could, from 23 some witnesses perhaps, get some assistance. 24 25 CROSS-EXAMINATION BY MR. PETER ROSENTHAL:


1 Q: Now, I want to ask you factual 2 questions that you can assist us with. 3 Now, the -- just a one (1) little side 4 issue. The lawyer representing Premier Harris at these 5 proceedings asked if you heard that his client had made a 6 statement to the effect of, Get the fucking Indians out 7 of the Park and use guns if you have to, and you 8 indicated, if I recall correctly, that you heard 9 something to that effect sometime afterward in the form 10 of rumours -- 11 A: Yes. 12 Q: -- is that correct? 13 A: Yes. 14 Q: And that was from some people in 15 government that you heard those rumours? 16 A: I can't remember. 17 Q: I see. Can you recall, was it from 18 more than one (1) source that you heard that? 19 A: I don't think so. 20 Q: You think it was from just one (1) 21 source? 22 A: I think so. I -- 23 Q: And do you recall that source? 24 A: No. 25 Q: I see. Okay. Now, you would have


1 made some notes, presumably, as you worked on this 2 injunction application over those several weeks or 3 months; is that not fair? 4 A: Several weeks or months? 5 Q: Yes. 6 A: A period of a few days. 7 Q: Well, okay, perhaps let's clarify 8 that. 9 Beginning on September 5th, 1995, you 10 began to be concerned about a possible injunction with 11 respect to the persons occupying the Park; is that 12 correct? 13 A: Yes. 14 Q: Before September 5th, 1995, you had 15 not concerned yourself with that question? 16 A: I -- I may have been aware of the 17 possibility of something like that occurring as a result 18 of people in Camp Ipperwash proceeding at some stage into 19 the Park. 20 Q: I see. 21 A: But it wasn't -- you know, I was 22 dealing with other things. It was one (1) of many, many 23 things that might occur sometime in the future. 24 Q: Certainly. 25 A: Yeah.


1 Q: I -- I didn't mean to suggest that 2 this was your full-time occupation -- 3 A: Right. 4 Q: -- during any period of time except 5 perhaps September 6th. 6 A: Right. 7 Q: But -- so you -- you had some prior 8 indication that there might be an occupation of the Park 9 and that they -- you might be required to draft an 10 injunction to deal with that prior to September 5th? 11 A: Yeah -- prior indication, I know -- I 12 guess it's right to say that I knew people in the 13 Government were nervous about the possibility. 14 Q: I see. And which people in the 15 Government expressed that to you? 16 A: Well, I think we went to a 1993 17 meeting, was it, a while earlier today and -- and the 18 possibility of -- of something like that occurring seems 19 to have been suggested. It involved Andrew MacDonald, I 20 think, in those notes. 21 And -- and me making -- making a -- you 22 know, engaging in -- in the conversation at that point 23 and saying, Well, yeah in that case we ought to make sure 24 we know something about the title history of this Park. 25 Q: Yes. And did you follow up on that?


1 Was there an investigation at the time? 2 A: Not that I recall, no. 3 Q: No. Not between 1993 and 1995? 4 A: Not that I recall, no. 5 Q: Why -- why would that be that that 6 wasn't followed up on? 7 A: I don't know. 8 Q: Was it your responsibility to follow 9 up on it? 10 A: No. 11 Q: Whose would it have been? 12 A: You know, I can't -- you know, this 13 meeting in 1993, I don't know, apart from those minutes, 14 you know, what was decided as a result of that, as to who 15 should do what and that sort of thing, you know. 16 I don't remember being charged with the 17 responsibility of investigating the title history of 18 Ipperwash Park. 19 Q: In any event, as far as you know, no 20 such investigation was done prior to September 5, let's 21 say, 1995? 22 A: I -- I think that's right. I think 23 that's fair. You know, I -- 24 Q: Now -- 25 A: -- it's possible that something had


1 been done at -- at MNR but I don't have any knowledge of 2 it. 3 Q: Now, on September 5th you became 4 aware that you might well be required to draft injunction 5 materials very shortly? 6 A: Yes. 7 Q: And then you -- we know that in the 8 next day or so you did. 9 But then, just moving ahead for a moment, 10 after you made your presentation on September 7, you then 11 withdrew the application on September 11? 12 A: Yes. 13 Q: But then, after that, you continued 14 to be, from time to time, consulted about renewing an 15 injunction application; isn't that fair? 16 A: I -- I'm sure I was. 17 Q: Yes. 18 A: You know, that possibility -- I -- 19 you know, I think it's fair to say that after September 20 11th it was almost an assumption on my part that this was 21 going to be revisited at some point. That's not 22 necessarily that anybody told me that but I thought that 23 that was a pretty good possibility, that the situation 24 would not remain in limbo. 25 Q: Yes. And then, in fact, if you turn,


1 please -- I'm just going to be using, of your many 2 binders, the Commission binder. 3 A: Okay. 4 Q: Although I will maybe have one (1) or 5 two (2) other documents that I'll present you with. But 6 if you turn to that binder, please, and at Tab 49. 7 Now this is an e-mail dated 15 of 8 September 1991, is that correct? 9 A: '95 I think. 10 Q: Sorry, thank you, 1995. It's Inquiry 11 Document Number 1012402 and it's dated September 15, 12 1995. The third paragraph reads: 13 "Tim has told me..." 14 And that's you, right, we can tell from 15 the context? 16 A: I presume so, yes. 17 Q: Well the first -- the first paragraph 18 says that: 19 "While some of you were talking and 20 going other things, Tim McCabe was 21 speaking to me on the phone." 22 So we can assume that Tim is you. 23 A: Right. 24 Q: So it says: 25 "Tim has told me that he fully expects


1 that he will receive instructions by 2 Monday to obtain an injunction on 3 notice." 4 Right? 5 A: Yes. 6 Q: So evidently on September 15 we can 7 compute what day of the week it was, but on that date 8 several days hence on the Monday you were expecting to 9 receive instructions to obtain an injunction on notice, 10 right? 11 A: Well that's what's reported here, 12 yes. 13 Q: And you don't disbelieve that, do 14 you? 15 A: I, you know, I just don't know. I 16 don't have any recollection of what I expected on that 17 day. I don't have any, you know, memory of believing 18 that -- instructions of that sort are imminent. 19 But on the other hand, you know, I don't 20 disagree with the possibility that that's indeed what I 21 thought at the time. 22 Q: Well the whole -- the rest of the e- 23 mail quite extensively talks about your proposal for 24 evidence at that injunction application doesn't it? 25 A: Right.


1 Q: Rather detailed description of your 2 plans, right? 3 A: Right. 4 Q: And involving different evidence from 5 the evidence that you had presented on September 7th, 6 right? 7 A: Right. 8 Q: And the need to get such evidence and 9 so on. 10 So you were working on this after 11 September 7 -- 12 A: Right. 13 Q: -- and before September 15 making a 14 lot of plans right? 15 A: Yes. Now I think another thing that 16 happened in the meantime I believe during the course of 17 this week. September the 15th I think would be Friday 18 and -- 19 Q: Yes. 20 A: -- and I think it was that week that 21 Mr. Irwin produced the exchange of letters in the 1930's 22 between the Provincial Government and the Federal 23 Government. 24 Q: Yes. 25 A: Yes.


1 Q: Why do you mention that at this 2 juncture, sir? 3 A: You mentioned that I'm making 4 detailed plans as to what the evidence in the material 5 would be and so forth. 6 COMMISSIONER SIDNEY LINDEN: Why don't 7 you just take a minute and read the document. 8 THE WITNESS: All right. 9 COMMISSIONER SIDNEY LINDEN: Just take a 10 minute and read the document completely, Mr. McCabe. 11 THE WITNESS: Yes. 12 13 (BRIEF PAUSE) 14 15 THE WITNESS: Well, I think it's point 16 number 2, the burial information and my guess is that 17 that's what I'm referring to there. The burial 18 information that was now extent. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Yes. But would you agree with me 22 that this seems to describe some rather detailed 23 preparations that you were making in anticipation of 24 renewing the injunction application? 25 A: No, I wouldn't.


1 Q: You wouldn't? 2 A: No. This is me telling Leith Hunter 3 that if we proceed with this, this is a sort of thing we 4 need. 5 Q: I see. And what about the line: 6 "Tim has told me that he fully expects 7 that he will receive instructions by 8 Monday to obtain an injunction on 9 notice." 10 A: I think we've already covered that. 11 I don't remember fully expecting imminent instructions to 12 proceed with an injunction. But as I said I don't 13 discount the possibility that at the time that's exactly 14 what I thought. 15 Q: I see. Well I thought you did just 16 discount that possibility in your answer a moment ago, 17 sir. 18 So can we agree you do not discount the 19 possibility that you were -- that you did fully expect to 20 receive instructions by Monday to obtain an injunction on 21 notice? 22 A: Yes. I agree that we can't discount 23 the possibility. 24 Q: Yes. 25 COMMISSIONER SIDNEY LINDEN: You said you


1 didn't recall it. You said you didn't recall it in your 2 answer. 3 THE WITNESS: I didn't -- I didn't re -- 4 I don't recall it but I don't discount the possibility. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: And do you -- 8 COMMISSIONER SIDNEY LINDEN: When you 9 don't discount the possibility then the possibility 10 exists. And that's why counsel is pursuing it. That's 11 fine. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Yes. Yes. The possibility does 15 exist, right? 16 A: Yes. Yes. 17 Q: Now, Mr. Commissioner, appropriately 18 suggested you have the opportunity to read this document 19 and you took a minute or two. 20 I don't know if you would like more time, 21 but do you have any reason to feel that anything reported 22 about you -- your request by Ms. Hunter in this document 23 is incorrect? 24 A: No. 25 Q: No.


1 (BRIEF PAUSE) 2 3 Q: So I would put it to you it seems to 4 indicate that you want a fair amount of work done by 5 different people in preparation for a renewal of the 6 injunction application. 7 Is that a fair summary? 8 A: Well, I don't -- I don't know that 9 I'm requesting the -- the work to be done in the absence 10 of instructions, but I -- I think what I'm doing here is 11 saying that if we proceed with this, this is -- this is 12 the kind of work up that's going to be needed. 13 You know, I -- I hesitate to split hairs, 14 but if, you know, if something turns on that, I think it 15 is a valid distinction. 16 Q: Now, sir, you told us that you don't 17 remember, but you don't necessarily discount the phrase 18 that you fully expected that you'd receive instructions 19 by Monday to obtain an injunction on notice. 20 Now, would it be a fair reading of what 21 that might mean is that somebody, who had the authority 22 to tell you so, the deputy minister or minister -- 23 A: Yes. 24 Q: -- told you to the effect, we're 25 seriously thinking of proceeding with another injunction


1 application, so please get the wheels in motion in case 2 we do, and we'll give you final instructions on Monday? 3 A: That's possible. 4 Q: But that's -- that's the likely 5 scenario that would lead to a sentence like this, right? 6 A: Well, yes, if -- assuming that -- 7 Q: Assuming that it's true. 8 A: Assuming that it's true, yes, that is 9 a likely scenario. 10 11 (BRIEF PAUSE) 12 13 Q: And one of the concerns expressed at 14 the bottom of the first page of this document refers to a 15 person named Barry. 16 First off, do you know who that person 17 might be? 18 A: I think it's likely Barry Jones, who 19 was the director of legal services at the Ministry of 20 Natural Resources. 21 Q: I see. And Ms. Leith Hunter is -- it 22 says legal services branch, that's of the Ministry of 23 Natural Resources as well, is that correct? 24 A: Yes. 25 Q: Now, it indicates:


1 "I know that Barry has had concerns 2 about the archival research has not 3 been thoroughly dealt with by someone 4 who knows what they are doing." 5 Would this be related to the concern the - 6 - well, that I expressed earlier, about the 1993 request 7 for -- for the study not having been done? 8 A: Yeah, I don't know what -- what Leith 9 is referring to at this point. 10 Q: I see. 11 12 (BRIEF PAUSE) 13 14 Q: Do you, sir, recall -- all right, and 15 is your memory, perhaps, jarred or revised by seeing this 16 document, whether indeed you were given instructions to 17 obtain an injunction on notice shortly after September 18 15, 1995? 19 A: I don't recall any such instructions, 20 no. 21 Q: I see, thank you. 22 MR. PETER ROSENTHAL: May I request that 23 this be made the next exhibit to these proceedings? This 24 is Tab 49, inquiring document -- Inquiry document number 25 1012402.


1 THE REGISTRAR: P-757. Now, do we -- 2 there is a home phone number on here. Do we want that 3 redacted on the second page? 4 MR. PETER ROSENTHAL: I certainly would 5 have no objection to redacting a home telephone number. 6 Looks similar to my number; it's not. 7 8 --- EXHIBIT NO. P-757: Document Number 1012402. E- 9 mail from Leith Hunter to 10 various re. Ipperwash Sept. 11 15/'95. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: And if you could turn to the next 15 tab, please, of the Commission documents, Tab 50, at 16 which you'll find Inquiry Document Number 1011625. 17 And this document is entitled, Support 18 Group meeting of September 18, 1995; is that correct, 19 sir? 20 A: That's correct. 21 Q: And it seems to mainly be a table 22 indicating different people's responsibility for carrying 23 out certain work; is that correct? 24 A: It appears to be so, yes. 25 Q: And number 1 item on that list is


1 entitled "Injunction" and then it says, in the second 2 column -- the first column is entitled, Item. And then 3 the next column is, What. Item 1 is injunction and the 4 'what' is: 5 "MNR affidavit, police affidavit, court 6 document." 7 Right? 8 A: Yes. 9 Q: And then it says, "When." And next 10 to the MNR affidavit line it says: 11 "Tuesday, September 19." 12 And down next to the court documents it 13 says: 14 "Friday, September 22nd at earliest." 15 Right? 16 A: Yes. 17 Q: And then it says "Who," in the next 18 column, next to "Injunction," and it lists Andrew, MAG -- 19 now, that's Andrew McDonald, is it? 20 A: In all likelihood, yes. 21 Q: And MAG means Ministry of the 22 Attorney General? 23 A: Yes. 24 Q: And then it says, "Ron, SG." That's 25 probably Ron Fox, for the --


1 A: I -- 2 Q: -- Solicitor General? 3 A: I suppose, yes. 4 Q: And, "Peter" Perhaps he's MNR. 5 Would that be Peter Sturdy, do you know? 6 A: Well, I -- I think there are a couple 7 of Peters who are playing in the piece at this time from 8 MNR, one (1) is Peter Sturdy and one (1) is Peter Allen. 9 Q: So it could be either of those? 10 A: I -- yes. And -- but, you know, my 11 surmise would be Allen because he's in Toronto and -- 12 sort of at headquarters, but that's -- 13 Q: I see. 14 A: -- that's purely speculative. 15 Q: And then it says: 16 "Andrew to follow up with Larry Taman 17 re: consensus of the three (3) 18 ministers." 19 Right? 20 A: That's what it says, yes. 21 Q: And then: 22 "Ron to follow up with OPP." 23 Right? 24 A: Yes. 25 Q: And then it says:


1 "Tim McCabe and Elizabeth Christie, 2 MAG." 3 A: Yes. 4 Q: Now, the -- the three (3) ministers 5 involved would have been Natural Resources, Attorney 6 General; and who would the third one be? 7 A: I don't know. Well, he's just 8 mentioned three (3) ministries -- 9 Q: The Solicitor General -- 10 A: The third one -- the third one being 11 Solicitor General, yes, so. 12 Q: I see. So it would be the -- the 13 three (3) ministers referred to would be the Attorney 14 General, the Solicitor General and the Minister of 15 Natural Resources? 16 A: I -- you know, I -- it seems to 17 follow. Those three (3) are mentioned and then -- 18 Q: Yes. 19 A: -- it says: "The three (3) 20 ministers," yes. 21 Q: But you -- 22 A: I -- I really know nothing about the 23 -- the production of this document. I don't think I've 24 seen it until I saw it in this binder. But, you know, I 25 -- I agree with you that, years of looking at government


1 documents, that's a -- that's a reasonable conjecture. 2 Q: Well, isn't it also -- although, of 3 course ten (10) years later you might forget, but isn't 4 it a reasonable inference also that you attended or were 5 at least informed of a support group meeting of September 6 18, 1995, in which you were one (1) of several people 7 assigned various tasks? 8 A: No. I don't think that necessarily 9 follows. I -- I'm not -- it's possible that I was at a 10 support group meeting on September the 18th but, you 11 know, I don't think it follows from the naming of 12 particular individuals here that they were in attendance 13 at the meeting. 14 Q: No. I -- I didn't say it follows -- 15 A: No. 16 Q: -- you were in attendance, I said 17 then either you were in -- in attendance or you were 18 somehow informed of your responsibility emanating from 19 that meeting; isn't that fair? 20 A: Possibly. 21 Q: That's very likely, is it not? 22 A: You know ... 23 Q: Okay. In any event, may I request 24 that this be made the next exhibit, please. 25 THE REGISTRAR: P-758, Your Honour.


1 MR. PETER ROSENTHAL: Thank you. 2 3 --- EXHIBIT NO. P-758: Document Number 1011625. 4 ONAS support group meeting 5 notes, Sept. 18/'95. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: And then at Tab 51 is a memorandum 9 addressed to you from Elizabeth Christie, it's Inquiry 10 Document 1011957. 11 A: Right. 12 Q: And I presume you would have seen 13 this, as a memorandum addressed to you; is that not fair? 14 A: I -- I presume I did, yes. 15 Q: And this is entitled, Re. Ipperwash 16 Provincial Park Injunction. Effective delay by Ontario 17 in pursuing the injunction. 18 A: Yes. 19 Q: And it appears to deal with the -- 20 the question as to whether -- the fact that you have not, 21 as of September 18, proceeded with an injunction. 22 Would that hurt your chances of obtaining 23 an injunction if you applied for it subsequently, right? 24 A: Well -- well I haven't read this but 25 I -- I -- that's very likely the case and it appears that


1 -- that I was concerned or Elizabeth was concerned or 2 both of us were concerned that that delay may in fact 3 have an impact or at least we were interested in pursuing 4 the subject of whether it might. 5 Q: Yes. But that -- then surely would 6 have been done in the context of considering the 7 possibility at least of another injunction application; 8 right? 9 A: Yes. Yes. 10 Q: And the question would arise is the 11 fact that we have not acted previously, is that going to 12 hurt us in making that application? 13 A: Yes. 14 Q: And that's what this deals with? 15 A: Well. Again, I haven't read it but - 16 - but -- 17 Q: Well -- well -- 18 A: -- judging from the -- from the 19 headline and so forth I -- I think that's probably right. 20 Q: No. Well please take whatever time 21 you need to ensure yourself that you are right. 22 A: Yes. I notice in the first three (3) 23 lines that it says "will address --" 24 Q: Yes. 25 A: "-- the issue of whether delay --" et


1 cetera so you're quite right, yeah. 2 Q: Yes. So -- so it's right, right? 3 A: Yes. 4 Q: Thank you. Could this be the next 5 exhibit please? 6 THE REGISTRAR: P-759, Your Honour. 7 MR. PETER ROSENTHAL: Thank you. 8 9 --- EXHIBIT NO. P-759: Document Number 1011957. 10 Memo to Tim McCabe from E. 11 Christie Re. Ipperwash 12 Provincial Park Injunction - 13 effect of delay by Ontario in 14 Pursuing the injunction Sept. 15 18/'95. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: And if you could please turn to Tab 19 54 at which you'll find Inquiry Document Number 1012439. 20 A: Yes. 21 Q: And this is entitled "A support group 22 meeting of September 20, 1995"; right? 23 A: Right. 24 Q: And again item number 1, 25 "injunction".


1 A: Yes. 2 Q: One might think with the magic of 3 word processors this was just a small permutation of the 4 previous document that we looked at with a similar title. 5 Under the next item, "1. Injunction", it 6 says "What" and it has the same MNR affidavit police 7 affidavit and court documents, right? 8 A: Right. 9 Q: And then next, the MNR affidavit at 10 this juncture, at the September 20 document it says, 11 "Ongoing", right? 12 A: Yes. 13 Q: And the police affidavit: 14 "Updated when required. Will depend on 15 options re. overall strategy." 16 And then it says "Court doc" next to court 17 documents, "Friday, September 22 at earliest" -- 18 A: Yes. 19 Q: -- right? And next to that line when 20 it says and the "Who" column: 21 "Tim McCabe and Elizabeth Christie." 22 Right? 23 A: Yes. 24 Q: Now this document is September 20 and 25 it says:


1 "The court documents have to be 2 prepared by Friday, September 22 at the 3 earliest." 4 Not at the latest, right? 5 A: Yes. 6 Q: And that was two (2) days later. 7 Do you recall, did you prepare court 8 documents within those two (2) days or not? 9 A: No. 10 Q: No? 11 A: Right. I don't recall preparing 12 court documents after the -- after the appearances on the 13 7th, 8th and 11th. 14 Q: Yes. Well, I would put it to you 15 that although you might not have prepared any final court 16 documents after that, you certainly would have had 17 various draft court documents in the works during this 18 period as indicated by these materials; is that not fair? 19 A: I -- I -- well I don't recall that, 20 no. I mean it's -- it's -- 21 Q: You don't recall working on drafts at 22 all of any of the materials? 23 A: I don't, no. 24 Q: I see. Would you think it's likely 25 that you did or didn't, given these documents?


1 A: I don't -- I don't think these 2 documents tell us anything one way or the other. I think 3 what you have successfully established through these few 4 support group meeting documents, is that some people in 5 the Government were considering that there might be an 6 injunction proceeding and that McCabe and Elizabeth would 7 have a lot to do with it if that were to occur. 8 Also the -- the memo from Elizabeth to me 9 indicates we were thinking about what the -- some of the 10 issues might be if we were asked to proceed. 11 Q: Sure. 12 A: So I think you've successfully 13 established that, yes. 14 Q: Certainly successfully established 15 that you were involved in considering the possible -- 16 possibility of an injunction with respect to Ipperwash 17 Provincial Park. 18 A: It -- it appears so to a greater or 19 lesser extent -- 20 Q: Or something like that. 21 A: -- I was -- I was involved in it in 22 some way, yes. 23 COMMISSIONER SIDNEY LINDEN: Mr. McCabe, 24 if you don't remember something just say you don't 25 remember, that would be sufficient.


1 THE WITNESS: Right. 2 MR. PETER ROSENTHAL: Yes. 3 COMMISSIONER SIDNEY LINDEN: If you do -- 4 if something in the document refreshes your memory or 5 helps you to remember something that's different. 6 THE WITNESS: Right. 7 COMMISSIONER SIDNEY LINDEN: But if you 8 don't remember ... 9 MR. PETER ROSENTHAL: Yes. And I'm hoping 10 that that may occur. That something might -- 11 COMMISSIONER SIDNEY LINDEN: If it does, 12 it does. Then of course we want to hear it. But if it 13 doesn't then it's not any -- it's not helpful to pursue 14 something that he doesn't remember. 15 THE WITNESS: Right. 16 COMMISSIONER SIDNEY LINDEN: -- and where 17 the document doesn't help him. 18 THE WITNESS: I apologize for being 19 unnecessarily verbose at times. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 Carry on. 22 MR. PETER ROSENTHAL: It may be that this 23 -- this document might be Exhibit P-522. I'm not -- I 24 have that marked here but I'm not confident. I wonder -- 25 is it?


1 Thank you very much. So, I won't suggest 2 that it be made a multiple exhibit as some other 3 documents have been. 4 COMMISSIONER SIDNEY LINDEN: That's fine. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Now, at the next tab, 55, there is a 10 document entitled -- Inquiry Document 1012041; is that 11 what you have at your Tab 55, sir? 12 A: Yes. 13 Q: And this is dated September 25, 1995, 14 and it's a memorandum to several listed people, the first 15 is Sandra Wayne and the third is Tim McCabe -- 16 A: Yes. 17 Q: -- is that correct? And the 18 instructions on this first cover page: 19 "Re. Attached is a revised list of 20 questions and answers for the Minister 21 on Ipperwash as Andrew will be back in 22 the office on Tuesday, September 26th. 23 Please let him know as soon as possible 24 if you have any comments, particularly 25 on the SIU or land claims issues."


1 A: Yes. 2 Q: So am I correct in reading this as a 3 request of you and the other named persons to do what is 4 said there, to read over the proposed answers to the 5 given questions and give your input as to whether the 6 answers are appropriate or there might be other 7 additional things to say; is that a fair reading? 8 A: She says: 9 "Let Andrew know if you have any 10 comment." Yes...? 11 Q: Yes. And the nature of the comments 12 would presumably -- that they're trying to elicit from 13 you are either that there's something not good about one 14 (1) of the answer or there's something in addition to be 15 said about one (1) of the answer, either to -- to leave 16 out some of what is said or to add something else that in 17 your -- 18 A: Well, I think -- 19 Q: -- opinion thought would be 20 appropriate? 21 A: The only thing that's questionable 22 about your question I think is -- is, you know, an 23 intention of eliciting from me. I think -- 24 Q: Yes. 25 A: -- she's giving me an opportunity to


1 say, if you want, if -- if I have any comments. 2 Q: Right. Now, when -- when you're 3 given a document like this and responding to a document 4 like this, do you regard yourself as acting as a 5 solicitor in a solicitor/client relationship, or are you 6 a government employee giving your opinion, or how do you 7 regard your role in responding to a document like this? 8 A: I -- I think everything that I -- 9 that I did at the Ministry, I was acting in a capacity as 10 a solicitor, yes. 11 Q: I see. So your comments in your 12 responses to this would be as a solicitor giving legal 13 advice? 14 A: You know, I -- I'm not sure whether - 15 - I mean, first I should say I don't remember the 16 document or -- or anything about it. And, you know, if I 17 -- if I did respond to it, even by declining to respond 18 to it, I'm not sure I went through the mental exercise of 19 -- of thinking about whether I'm acting as a solicitor or 20 not. 21 But I think, in general, had I -- had I 22 engaged in that exercise, I would have concluded that, 23 yes, I -- I am indeed acting as a solicitor. 24 Q: Thank you. Now, I -- I don't believe 25 that I've made this an exhibit yet.


1 THE REGISTRAR: Not yet. 2 MR. PETER ROSENTHAL: Thank you. 3 THE REGISTRAR: Do you want it? 4 MR. PETER ROSENTHAL: Yes. May I, 5 please. Thank you. 6 THE REGISTRAR: P-760, Your Honour. 7 MR. PETER ROSENTHAL: P-760, thank you. 8 9 --- EXHIBIT NO. P-760: Document Number 1012041. 10 Memo from Lois Lowenberger to 11 Tim McCabe et. al. attaching 12 a revised list of questions 13 and answers for the Minister 14 Harnick (Attorney General) 15 Re. Ipperwash, Sept. 25/'95. 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: And then the next tab, sir, is Tab 19 56, and this is a memorandum to Tim McCabe -- 20 A: Yeah. 21 Q: -- and Frances Norohna -- 22 A: Yes. 23 Q: -- dated November 24, 1995; is that 24 correct? 25 A: Yes.


1 Q: And this is apparently requesting 2 people to indicate the amount of time they have spent on 3 working on Ipperwash-related matters; is that correct? 4 A: Yes. 5 Q: And did you respond to this request 6 by -- 7 A: I -- 8 Q: -- indicating the amount of time you 9 had spent, sir? 10 A: I -- I think I did, yes. 11 12 (BRIEF PAUSE) 13 14 Q: Now, sir, we -- I started by asking 15 you, in the question about your notes -- 16 A: Yes. 17 Q: And about whether you'd made notes of 18 the -- any notes with respect to you -- all your work on 19 the Ipperwash injunction and related matters, and you 20 recall at the beginning, I said, Over a period of weeks 21 and months, and you said, What do you mean, it was only 22 two (2) days, or words to that effect. 23 A: Right. 24 Q: I think it's now clear that it 25 extended more than two (2) days.


1 Is that fair? 2 A: I'm not sure that that is entirely 3 fair. It seems that the Government is considering an 4 injunction and Elizabeth and I had had a conversation at 5 one stage. 6 She wrote me a memo about it. As far as, 7 you know, active engagement with the problem of another 8 injunction, I don't recall that, no. 9 Q: I see. Well, I would put it to you 10 that, in fact, you were actively engaged with the 11 possibility of an injunction even months after this, and 12 in particular, to try to remind you, sir, I would suggest 13 that you were actively engaged in the question of an 14 injunction in the springtime of 1996 when the question 15 arose as to whether or not the Park might be opened for 16 the summer of 1996? 17 A: That's right. I was asked about the 18 possibility, the remedy of injunction, and I think that 19 was, in fact, in March of 1996, yes. 20 Q: And you did a fair amount of work on 21 that possibility at that point as well, did you not, sir? 22 A: I wrote a memo. 23 Q: Yes. 24 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 25 Twohig...?


1 MS. KIM TWOHIG: Commissioner, this is 2 the memo that is respective to discussions with the 3 Commission under Rule 32. 4 MR. PETER ROSENTHAL: Yes, and I'm not 5 planning to produce that memo. I do understand that. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: But you did extensive work in 9 considering the possibility of an injunction at that 10 point, did you not, sir? 11 A: Well, I wrote a memo. Extensive 12 work, you know, I don't think it would have extended 13 beyond a few hours. 14 Q: Just a few hours? 15 A: Yes. 16 Q: And as far as you recall, that's all 17 you did, wrote that one memo? 18 A: As far as I can recall, yes. 19 Q: Now, sir, did you maintain a file 20 entitled, "Ipperwash," or something to that effect? 21 A: I don't know whether, you know, a 22 formal file in the -- in the Ministry filing system was 23 opened or not. I really don't recall; it may have been. 24 But I certainly would have had manila 25 folders and so forth where I would have put in copies of,


1 you know, material that I had produced, memos that I had 2 received or what have you. 3 Q: Yes. And in the course of your work, 4 whether it was two (2) hours or more, whether it was 5 extensive or not very extensive, you would have made some 6 notes, would you not, sir? 7 A: I probably would have, yes. 8 Q: Undoubtedly you had to make some 9 notes -- 10 A: Yes. 11 Q: -- you don't have a -- such a strong 12 memory that you can proceed without notes all the time, 13 can you? 14 A: Well, that's -- well, you know, the 15 notes would have -- I probably would have made notes 16 about what I was going to say in the memo, yes. 17 Q: Yes. And also, for example, in 18 September 5, 6, 7 as you were preparing to go before the 19 Court on September 7, you would have made some notes, 20 would you not? 21 A: I probably would have, yes. 22 Q: Yes. 23 A: I would have -- you know, in the 24 course of these telephone conversations, for example, 25 that we had, I probably would have --


1 Q: Yes. I mean it would be 2 irresponsible for a lawyer to interview an inspector like 3 John Carson in a matter like this and not take some 4 notes, wouldn't -- 5 A: No, I -- 6 Q: -- you agree? 7 A: -- I don't agree with that at all, 8 no. 9 Q: You don't agree? 10 A: I don't -- I don't agree that that 11 would be irresponsible in the circumstances of this 12 event. 13 Q: Well, would you agree that -- 14 A: Whatever -- 15 Q: -- that you, sir, would undoubtedly 16 have taken notes of your phone call with John Carson? 17 A: No, I said probably. I, you know, 18 I -- 19 COMMISSIONER SIDNEY LINDEN: He's agreed 20 with you. He's agreed -- 21 MR. PETER ROSENTHAL: No, he said 22 probably, but -- 23 THE WITNESS: Yeah. 24 MR. PETER ROSENTHAL: I would like it -- 25 I'd like to, in cross-examination, try to elevate that,


1 sir. 2 COMMISSIONER SIDNEY LINDEN: Well, he's 3 agreed with you, so I -- he said he probably -- 4 THE WITNESS: I probably -- listen, I 5 would be much more likely to make notes about what I was 6 going to say to -- it may be a failing on my part, but -- 7 but I think that that -- you know, I'm much more likely 8 to make notes about what I propose to say, you know. 9 There are circumstances when I have to 10 make a memorandum to myself as to something to remember, 11 yes. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: Now, in preparing for the injunction 15 application on September 7, you were very much pressed 16 for time, of course? 17 A: Yes. 18 Q: And in thinking about how you were 19 going to present it to the Court, it was important to you 20 to have some idea as to what the police officer, whoever 21 he might have been, would testify to, right? 22 A: Yes. 23 Q: And you interviewed, by telephone, 24 first Inspector Carson, thinking that he might be the 25 affiant, right?


1 A: Yes. 2 Q: And he gave you some information? 3 A: Yes. 4 Q: About the nature of the events from 5 his perspective, right? 6 A: Yes. 7 Q: And then you subsequently learned 8 that Detective Sergeant Wright was the affiant and you 9 got some information from him on the telephone as to what 10 he might say, right? 11 A: Well, that's true. I think though, 12 that my essential purpose in talking to those police 13 officers, was to explain to them what I was going to ask 14 them, right? 15 The information that I'm receiving back as 16 I, you know, reviewed the -- with the Commission 17 yesterday, the transcripts and the recordings of those -- 18 of those telephone conversations, I am receiving 19 information back from them and I am becoming reassured, I 20 think that, yes, it may indeed be that this is a case 21 where we are successfully going to -- going to receive an 22 order -- 23 Q: Yes. 24 A: -- the next day. But my purpose is 25 to tell the officers what's going to happen tomorrow and


1 the sorts of questions that I'm going to ask them. 2 I don't think I'm making very close very 3 mental or written notes as to what they're telling me 4 back, no. 5 Q: You're not interested in what they're 6 telling you back, particularly -- 7 A: I didn't say I'm not interested in 8 it, but that's not my purpose. And, you know, what 9 they're telling me is what they're going to tell the 10 Court the next day. 11 Q: Yes. 12 A: And, you know, this is -- this is of 13 interest to me and, you know, and I'm becoming reassured 14 that there is going to be a -- you know, there is going 15 to be a narrative that is going to be of value to the 16 Court the next day. 17 Q: Yes, but -- 18 A: And that's my intention and that's my 19 purpose and I think that -- 20 Q: But, sir, are you telling -- 21 A: I think that that's -- 22 Q: -- us that -- 23 A: -- what -- 24 Q: -- that you didn't have any real 25 interest in any details of that narrative when you are


1 preparing -- 2 A: No, I am not telling you that at all. 3 COMMISSIONER SIDNEY LINDEN: This is 4 cross-examination, but that's not what he said. 5 MS. KIM TWOHIG: And he's not -- he's not 6 being fair to the Witness -- 7 COMMISSIONER SIDNEY LINDEN: That's not 8 what he said. 9 MS. KIM TWOHIG: -- at all. 10 COMMISSIONER SIDNEY LINDEN: And he 11 isn't -- 12 MS. KIM TWOHIG: At all. 13 COMMISSIONER SIDNEY LINDEN: -- he isn't. 14 That's not what he said, Mr. Rosenthal. 15 MR. PETER ROSENTHAL: No, I know that, 16 Mr. Commissioner, but in cross-examination you don't just 17 repeat what he said. 18 COMMISSIONER SIDNEY LINDEN: Well, I 19 understand, but you got to be fair to -- 20 MR. PETER ROSENTHAL: You ask cross- 21 examination, you try to -- 22 COMMISSIONER SIDNEY LINDEN: You must be 23 fair to the Witness. 24 MR. PETER ROSENTHAL: Yes. 25 COMMISSIONER SIDNEY LINDEN: And I don't


1 believe that you're being fair at the moment. 2 MR. PETER ROSENTHAL: Okay. Well I'll 3 try and rephrase -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. PETER ROSENTHAL: -- it then. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Now, sir, are you suggesting to us 9 that you had little interest -- 10 COMMISSIONER SIDNEY LINDEN: No. 11 MR. PETER ROSENTHAL: -- in what -- are 12 you suggest -- I'm asking the question, sir. 13 COMMISSIONER SIDNEY LINDEN: But he's -- 14 he indicated that he did have interest. 15 MR. PETER ROSENTHAL: Yes. 16 COMMISSIONER SIDNEY LINDEN: He said that 17 in his evidence. 18 19 CONTINUED BY MR. PETER ROSENTHAL: 20 Q: Would you not be interested in 21 detailed -- as much evidence as you could possibly get, 22 as much knowledge as you could possibly get about what 23 the officers were going to say the next morning, so that 24 you could prepare your argument based on your anticipated 25 evidence?


1 Would you not be interested in as much as 2 you could get, sir? 3 4 (BRIEF PAUSE) 5 6 A: I'm interested in the fact that the 7 police officer is going to be saying this tomorrow 8 morning at 9:00 a.m. 9 Q: Yes. 10 A: Yes. 11 Q: And you want to know what he's going 12 to be saying, right? 13 A: Yes. 14 Q: Because he might say things that 15 would completely destroy your application for an ex parte 16 injunction or he might say things that would support it, 17 right? 18 A: Well, so be it, right. You know, I'm 19 going to ask him the questions. I'm explaining to him 20 the questions I'm going to ask. It is of interest to me 21 to know what he's going to say tomorrow -- 22 Q: Yes. 23 A: But that's -- that's the -- that's 24 the beginning and the end of it, what is he going to say 25 tomorrow?


1 Q: Yes. 2 A: I'm not there to, you know, to -- 3 Q: Yes. 4 A: -- tell him what to say. 5 Q: No, it is -- I didn't suggest you -- 6 A: No, I know -- 7 Q: -- would tell him what to say, sir. 8 A: -- you didn't, no. 9 Q: So you agree with me that it is of 10 interest to know what he's going to say tomorrow and 11 would you agree with me that you probably took notes of 12 those conversations? 13 COMMISSIONER SIDNEY LINDEN: He's already 14 agreed with that. He agreed with that some time ago. 15 THE WITNESS: Yes. 16 COMMISSIONER SIDNEY LINDEN: He probably 17 took notes. 18 MR. PETER ROSENTHAL: Yes. 19 COMMISSIONER SIDNEY LINDEN: Now, I'm not 20 sure where you're going now. It's now almost 12:30. Are 21 you continuing on this particular point, because at some 22 point -- 23 MR. PETER ROSENTHAL: I am, but I'm in 24 your hands, sir. We can break now. 25 COMMISSIONER SIDNEY LINDEN: Well, I


1 don't like to go too long because -- 2 MR. PETER ROSENTHAL: No, but perhaps 3 just a couple of follow up questions -- 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 That's fine. 6 MR. PETER ROSENTHAL: I had one on the 7 tip of my tongue, then -- 8 COMMISSIONER SIDNEY LINDEN: I'm sorry, I 9 didn't mean to interrupt you. 10 MR. PETER ROSENTHAL: Yeah, but, no, 11 but -- 12 COMMISSIONER SIDNEY LINDEN: I was 13 looking at the clock, I shouldn't have interrupted you -- 14 MR. PETER ROSENTHAL: No, no, no. 15 COMMISSIONER SIDNEY LINDEN: -- in the 16 middle of a sentence. 17 MR. PETER ROSENTHAL: No, no, that's, no, 18 sorry, Mr. Commissioner. Just give me a moment. 19 20 (BRIEF PAUSE) 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: If you had taken such notes, which 24 you probably did you've told us, would you have put them 25 in the file?


1 A: Probably. 2 Q: Probably. And, sir, would you agree 3 that you probably took other notes over the period, 4 whether it was months or more than months, that you, on 5 and off, sporadically, not continually but sporadically, 6 were asked to consider the question of an injunction with 7 respect to Ipperwash Park? 8 A: No. 9 Q: No other notes? 10 A: Are you asking me whether I probably 11 took notes during that -- 12 Q: Took any other notes. 13 A: -- during that period of time. 14 Q: Yes. 15 A: I've earlier explained to you that I 16 was not actively engaged, so far as I can recall, in -- 17 in injunction proceedings after the -- the 11th of -- of 18 September. I -- I fully knew that there was a -- a 19 possibility, I assumed it was a good possibility that we 20 would be proceeding with an injunction. 21 Leith Hunter tells us that I had a 22 conversation with her about that very subject. I had a 23 conversation with -- with Elizabeth Christie, I presume, 24 suggesting that she might want to look into this question 25 of whether delay was going to impede in -- in some way or


1 factor into the proceeding if we were to pursue it. 2 And it's very clear that others in the 3 Government were actively considering the possibility of 4 injunction proceedings and that they assumed that McCabe 5 and Christie would have something to do with it if that 6 were to occur. 7 It doesn't necessarily follow that I'm 8 making notes about anything during that time. 9 Q: And just to close this off -- we all 10 want to have lunch and I -- I want to accommodate that. 11 You're saying that it is very unlikely 12 that there were any notes whatsoever, with respect to 13 Ipperwash Park, that you made, about any aspect of it, 14 after September 7, 1995? 15 Is that your evidence, sir? 16 A: I didn't -- am I arguing? 17 Q: Is that your evidence? 18 A: Evidence. That, I don't think I said 19 that. I don't -- I don't think I said, It's very 20 unlikely. I said, It doesn't follow that such -- such -- 21 Q: Well, would you -- 22 A: -- notes exist. 23 Q: -- agree, sir, that it's probable 24 that you made some notes at some of the intervening time? 25 A: You know, I -- I can't recall. It's


1 -- I'll say this: It's probable that at some point I, you 2 know, I wrote down something, yes. 3 Q: Yes. 4 A: Yes. 5 Q: Now, sir, do you know what happened 6 to your files with those notes? 7 A: Well, I presume they're in the 8 Ministry of the Attorney General. 9 Q: Thank you. 10 A: If they exist. If -- you know, if... 11 Q: You did not destroy them or -- 12 A: No. 13 Q: -- take them away? 14 A: No. 15 Q: And you're not aware of them being 16 destroyed or shredded by anyone or anything like that? 17 A: No. 18 Q: Thank you, Mr. Commissioner. Lunch. 19 COMMISSIONER SIDNEY LINDEN: Thank you, 20 Mr. Rosenthal. 21 THE REGISTRAR: This Inquiry stands 22 adjourned until 1:45. 23 24 --- Upon recessing at 12:28 p.m. 25 --- Upon resuming at 1:46 p.m.


1 2 THE REGISTRAR: This Inquiry is now 3 resumed. Please be seated. 4 COMMISSIONER SIDNEY LINDEN: Mr. 5 Rosenthal...? 6 MR. PETER ROSENTHAL: Good afternoon, Mr. 7 Commissioner. Thank you. 8 COMMISSIONER SIDNEY LINDEN: Good 9 afternoon. 10 11 CONTINUED BY MR. PETER ROSENTHAL: 12 Q: Good afternoon, sir. 13 A: Mr. Rosenthal. 14 Q: Now -- 15 COMMISSIONER SIDNEY LINDEN: Just before 16 you start, Mr. Rosenthal. Just before you start. Can 17 you make some reasonable estimate as to how long you 18 might be? 19 MR. PETER ROSENTHAL: I think one (1) 20 hours is a very good estimate. 21 COMMISSIONER SIDNEY LINDEN: One hour -- 22 MR. PETER ROSENTHAL: Although -- I hope 23 it -- thank you. 24 COMMISSIONER SIDNEY LINDEN: Thank you 25 very much.


1 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: Thank you. Let's go to September 6, 4 1995 again then. And as you've told us and Ms. Christie 5 told us, you and she got an indication that at some point 6 on that day obviously by early afternoon, that there was 7 to be a very quick application for an injunction whether 8 ex parte or otherwise, but very quick. 9 A: Yes. 10 Q: And then we've heard about attempts 11 even to get it heard that day in Toronto, which seemed to 12 fall short. Now, would it have been possible for you to 13 put something together for that afternoon in Toronto? 14 Suppose that when Ms. Christie phoned up a 15 judge or phone -- or rather phone up the trial 16 coordinator's office in Toronto they said there's a judge 17 whose case collapsed and he's sitting here and he's happy 18 to hear you, what would you have done? 19 How -- how would you have gotten materials 20 there? 21 A: Well, the materials is one thing. I 22 -- I can't remember where we were at -- you know, at 23 various stages, as September the 6th wore on, with 24 respect to the affidavit of Mr. Kobayashi. The thing 25 that occurs to me when you ask the question, is how we


1 would have had the OPP officer on the scene in Toronto on 2 September the 6th. 3 Q: I see. But you would have been able 4 to get an affidavit from Mr. Kobayashi? 5 A: Well I don't know. 6 Q: I see. 7 A: As I say I'm not sure. It's possible 8 that we were sufficiently along the way with -- with 9 respect to that, that could have been delivered that day 10 at some point. 11 Q: I see. Did -- well -- and Ms. 12 Christie, you -- you were aware that she was making that 13 attempt to try to get on before a judge in Toronto? 14 A: I -- if she was, it's -- I'm -- well 15 you know, I'm almost certain that I was aware that she 16 was making the attempt. 17 Q: Yes. 18 A: My recollection today is purely what 19 Ms. Christie has -- has told me recently as to what she 20 was -- she was engaged in at that time. 21 Q: I see. So -- so, you don't yourself 22 recall that attempt? 23 A: I don't. 24 Q: I see. And well, okay -- perhaps 25 I'll just leave it there.


1 Although, do you recall being asked about 2 this in the course of the civil proceedings, somebody 3 asking you whether you knew of such an attempt? 4 A: No. 5 Q: Well perhaps we should turn to Tab 62 6 of your materials. At border number 14, line 14 on the 7 left, it reads: 8 "Hodgson question 520, to be answered. 9 Confirmed that there was no attempt to 10 have the injunction application heard 11 on September 6th. If necessary, ask 12 Tim McCabe to confirm." 13 And it says: 14 "A: Tim McCabe advises that the 15 injunction was sought to be obtained on 16 September 7th, 1995." 17 A: Yes. 18 Q: Now, do you recall at about what 19 point you were asked that question? 20 A: About what time? I would estimate it 21 was something like two (2) years ago. 22 Q: And you didn't check with Ms. 23 Christie then before answering? 24 A: No. 25 Q: But your answer as quoted there


1 doesn't seem to be a direct answer to the question. It 2 says: 3 "Tim McCabe advised the injunction was 4 sought to be obtained on September 7, 5 1995." 6 It doesn't seem to answer yes or no as to 7 whether there was an attempt the previous day. 8 Do you recall that, sir? 9 A: I don't recall but that seems to be 10 the case, yes. 11 Q: Well, I -- I'll move on. Now, we've 12 established, partially by refreshing your memory by 13 looking at some documents, that you've had at least some 14 involvement with the potential for an injunction from 15 September 1995 for at least several months thereafter; is 16 that correct? 17 A: Sporadically. At the risk of 18 appearing to quarrel with your terminology, involvement 19 might, you know, as I recall, might be a little -- a 20 little strong. I think it's right to say that I, during 21 that period, I would have expected that at some point I 22 would either receive instructions or -- or, you know, be 23 engaged in the matter in some way. 24 Q: Did, at any time, were you aware of 25 the OPP having made a commitment to serve materials in


1 Court and then declining to serve materials? 2 A: No. 3 Q: With respect to this injunction? 4 A: No. 5 Q: No. Now, is it not correct that one 6 (1) of the reasons that kept on cropping up, as the 7 injunction was considered from time to time, as to -- as 8 to not pursue the injunction possibly, was the concern 9 that it might -- pursuing it might provide some judicial 10 forum for a review of the operations that had resulted in 11 the killing of Dudley George? 12 OBJ MS. KIM TWOHIG: I object to that 13 question on the basis that any matters about what 14 proceedings would be taken subsequently to the events of 15 September 5th, 6th, 7th and up to the 11th, are 16 privileged and that they're not relevant. 17 MR. PETER ROSENTHAL: Mr. Commissioner, 18 the same objection was made by Ms. Twohig during Ms. 19 Christie's examination, exactly. It was overruled. And 20 I'm surprised that she rises again to make the same exact 21 objection. 22 COMMISSIONER SIDNEY LINDEN: I think 23 that, you're right, I think we allowed you to ask that 24 one (1) question, if I recall, and you got an answer -- 25 MR. PETER ROSENTHAL: You indicated you


1 didn't want to spend a lot of time on it but -- 2 COMMISSIONER SIDNEY LINDEN: -- and I 3 didn't want to spend a lot of time. 4 MR. PETER ROSENTHAL: -- it was relevant 5 for -- 6 COMMISSIONER SIDNEY LINDEN: I don't 7 think -- 8 MR. PETER ROSENTHAL: -- Ms. Christie and 9 it's relevant for this -- 10 COMMISSIONER SIDNEY LINDEN: You think 11 it's irrelevant just because it's after, is that your 12 point? 13 MS. KIM TWOHIG: No. Well, that's part 14 of it, but also that My Friend's questions are -- appear 15 to be based on material that is contained in a memorandum 16 that the Crown says is privileged. 17 And my concern is that if the Witness is 18 asked questions about the contents of that memo and 19 answers are given, it will be said that the Crown has 20 waived privilege in the absence of an objection. 21 So, that's why I'm objecting. 22 COMMISSIONER SIDNEY LINDEN: You're 23 making it clear that you're not waiving privilege. 24 MS. KIM TWOHIG: Yes, I am, Mr. 25 Commissioner.


1 COMMISSIONER SIDNEY LINDEN: Absolutely 2 clear. I don't know -- 3 MS. KIM TWOHIG: Absolutely. 4 COMMISSIONER SIDNEY LINDEN: -- at the 5 moment, there's no document before me. So, we allowed 6 you to ask the question with one (1) witness, I think we 7 should allow you to ask it with this Witness. 8 MR. PETER ROSENTHAL: Yes. And -- and 9 she's putting on the record that his answering this 10 question does not, in and of itself, constitute a waiver 11 of the privilege. 12 MS. KIM TWOHIG: Well, on the other hand 13 though, Mr. Commissioner, one cannot claim privilege over 14 a document and then allow questions to be asked about 15 that document. 16 And, in my submission, if, under the 17 process provided for in Rule 32, it is determined that 18 all or part of the memorandum is not privileged, then My 19 Friend will have an opportunity to ask any questions he 20 likes. But, until then, it's our position that he cannot 21 ask questions about it. 22 COMMISSIONER SIDNEY LINDEN: Is the only 23 source that you have for the question that you're asking 24 now is the document that is purportedly privileged. 25 MR. PETER ROSENTHAL: That's where I got


1 the -- 2 COMMISSIONER SIDNEY LINDEN: Is that the 3 only source? 4 MR. PETER ROSENTHAL: -- I got the notion 5 that this was one (1) of the concerns, yes. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. PETER ROSENTHAL: And this was 8 already -- 9 COMMISSIONER SIDNEY LINDEN: -- from this 10 document? 11 MR. PETER ROSENTHAL: I got -- 12 COMMISSIONER SIDNEY LINDEN: I think that 13 -- again, I may be wrong - and my Counsel may want to 14 help me with this - but I think that when we discussed 15 this yesterday we decided that there might be a motion. 16 And the motion would deal with the question of whether or 17 not there is a privilege and whether or not there's been 18 a waiver. And Mr. George raised -- 19 MR. DERRY MILLAR: Well, the position is 20 that we're going to decide -- our obligation as 21 Commission Counsel decided it under Rule 32. 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. DERRY MILLAR: The Chiefs of Ontario 24 wish to bring a motion, and I said earlier this week that 25 we will schedule a motion with respect to the issue of


1 waiver. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. DERRY MILLAR: Having -- and I also 4 said that, in my view, under Rule 32, the other parties 5 don't have a standing to -- 6 COMMISSIONER SIDNEY LINDEN: Yes. You -- 7 MR. DERRY MILLAR: -- determine it, but 8 we are going to schedule a motion. 9 COMMISSIONER SIDNEY LINDEN: But, has the 10 decision been made that the document is privileged at 11 this point? 12 MR. DERRY MILLAR: Well, there's a claim 13 of privilege by -- 14 COMMISSIONER SIDNEY LINDEN: There's a 15 claim -- 16 MR. DERRY MILLAR: Yeah. We're dealing 17 with that under Rule 32, sir. 18 COMMISSIONER SIDNEY LINDEN: But, we 19 haven't yet. We're dealing with it, it's -- 20 MR. DERRY MILLAR: We're dealing with 21 it -- 22 COMMISSIONER SIDNEY LINDEN: -- but we 23 haven't yet. 24 MR. DERRY MILLAR: -- under Rule 32. 25 COMMISSIONER SIDNEY LINDEN: All right,


1 then. I think, that being the case, that being the case, 2 notwithstanding that I allowed you to ask the question 3 yesterday, I think you should hold the question down 4 until we determine what we're going to do with this. 5 MR. PETER ROSENTHAL: With great -- 6 COMMISSIONER SIDNEY LINDEN: How we're 7 going to deal with this. 8 MR. PETER ROSENTHAL: With great respect, 9 Mr. Commissioner, this matter was dealt with in exactly 10 the same when Ms. Christie was a witness -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. PETER ROSENTHAL: -- on September 27. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. PETER ROSENTHAL: And there was -- it 15 was clarified in the course of that discussion, I have -- 16 I can read from the transcript if necessary, but that 17 Rule 32 applies to documents. There is, of course, also 18 the client privilege, in general, as well. 19 It appears that at least your Counsel's 20 view is that with respect to Rule 32, the parties do not 21 have any standing to challenge any rulings made with 22 respect to Rule 32. 23 However, with respect to any privilege 24 that arises in the course of questions, viva voce 25 evidence, surely there's no such restriction?


1 And this exact point, about exactly the 2 same -- 3 COMMISSIONER SIDNEY LINDEN: Yes, I know. 4 MR. PETER ROSENTHAL: -- question was 5 argued -- 6 COMMISSIONER SIDNEY LINDEN: Well, I -- 7 MR. PETER ROSENTHAL: -- with respect to 8 Ms. Christie and she was allowed to answer the question. 9 COMMISSIONER SIDNEY LINDEN: I didn't 10 have all the material in front of me; I still don't, by 11 the way, when we dealt with this yesterday. I did not 12 have all the facts, all the material. 13 And that's why I asked you the question. 14 If the only basis of you asking this question is 15 information that you've obtained from a document which 16 may be privileged, then I don't think we should go there. 17 MR. PETER ROSENTHAL: But with great 18 respect, Mr. Commissioner, you asked me that question -- 19 COMMISSIONER SIDNEY LINDEN: But I -- 20 MR. PETER ROSENTHAL: -- in the course of 21 Ms. Christie and I -- and I told you then -- 22 COMMISSIONER SIDNEY LINDEN: No, I don't 23 think I asked you that exact question, because I did not 24 have as much information as I do now. 25 I still don't have all the information,


1 and I'm expecting that at some point in time, we will 2 have. And if it's a proper area to pursue, you'll be 3 allowed to pursue it. And -- 4 MR. PETER ROSENTHAL: Well -- 5 COMMISSIONER SIDNEY LINDEN: -- it isn't 6 -- I don't think you would want to. And I don't think 7 you would want me to let you pursue an area that may be a 8 basis for a subsequent challenge in the Divisional Court. 9 So I don't want to -- want that to happen. 10 MR. PETER ROSENTHAL: Well -- 11 COMMISSIONER SIDNEY LINDEN: So I don't 12 think that that's a question that we should go into now. 13 Mr. Millar, do you want to amplify that, or -- you seem 14 to be... 15 MR. DERRY MILLAR: Well, no, it's just 16 that if -- if something's privileged, the problem is if 17 the only source of the question arises from what is 18 claimed to be a privileged document -- 19 COMMISSIONER SIDNEY LINDEN: I didn't ask 20 that question yesterday. 21 MR. DERRY MILLAR: No. 22 COMMISSIONER SIDNEY LINDEN: I'm pretty 23 sure I didn't. 24 MR. DERRY MILLAR: If that -- if that's 25 the only source then it's inappropriate -- the privilege


1 doesn't go away just because it's asked in -- in -- in 2 the -- orally, having derived from the privileged 3 document. 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. DERRY MILLAR: And so I agree with 6 you on that. 7 COMMISSIONER SIDNEY LINDEN: Yes, I know 8 that there was some exchange among Counsel regarding this 9 issue prior to our discussing it yesterday here in the 10 hearing, which is normal and ordinary. 11 But I wasn't privy to that exchange, and-- 12 MR. PETER ROSENTHAL: Yes, but -- 13 COMMISSIONER SIDNEY LINDEN: -- I was 14 shown it late yesterday and so I think that the -- 15 MR. PETER ROSENTHAL: With great respect, 16 Mr. Commissioner, in the transcript of September 27, at 17 page 250, perhaps I'll read, beginning on page 251. 18 Ms. Twohig at line 19: 19 "I'm sorry. My understanding is that 20 the privilege is claimed over the 21 advice given, whether it's in written 22 or verbal form, and by asking the 23 witness questions about the legal 24 advice that was given is basically 25 asking that privilege be waived over


1 that advice, so I wanted to object as 2 soon as possible, so that it couldn't 3 be said that the Crown has effectively 4 waived privilege over the advice by 5 failing to object to the question. 6 COMMISSIONER SIDNEY LINDEN: And the 7 only way that he's able to ask these 8 questions is because the document was 9 inadvertently -- 10 MS. KIM TWOHIG: That's right." 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. PETER ROSENTHAL: "COMMISSIONER 13 SIDNEY LINDEN: -- released, is that 14 right? 15 MS. KIM TWOHIG: Yes. 16 COMMISSIONER SIDNEY LINDEN: That 17 makes it a little more complicated. 18 MR. PETER ROSENTHAL: Well, with 19 respect, Mr. Commissioner, it was 20 produced to the OPP, who produced it to 21 here and the -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MS. KIM TWOHIG: -- the privilege is 24 not claimed on behalf of the OPP. It 25 would be an obvious waiver, it would


1 seem, but in any event -- 2 [and then] 3 COMMISSIONER SIDNEY LINDEN: We still 4 have the question. We have to decide 5 the question of waiver. [and then my 6 saying] Rule 32 applies." 7 We had exactly this argument -- 8 COMMISSIONER SIDNEY LINDEN: Well, not 9 quite -- 10 MR. PETER ROSENTHAL: -- and at the end I 11 was allowed to ask the question of Ms. Christie. 12 COMMISSIONER SIDNEY LINDEN: Not quite 13 the same. I don't think it was quite the same. And as I 14 say, I did not -- I didn't see the document, I didn't 15 know what was in the document. I do know, and I think 16 that now we need to resolve the question of privilege 17 before we allow you to pursue this area. 18 Once this -- once the question of 19 privilege has been pursued, then we'll deal with it. So, 20 I -- 21 MR. PETER ROSENTHAL: I would like to 22 now, sorry, I'm not trying to be difficult, but this is 23 important, in my respectful submission, and you had 24 indicated that the question of privilege as it arose, 25 with respect to questions, would be dealt with on a case


1 by case basis. 2 And now -- so there is a -- is this -- 3 this -- this privilege respecting the question is based 4 on the document being privileged but there -- there still 5 is -- but there is a question that arises in my 6 questioning and therefore, surely, at a minimum, I have 7 standing to argue about whether or not this area is 8 privileged. 9 COMMISSIONER SIDNEY LINDEN: Which area 10 are you referring to? Do you mean -- 11 MR. PETER ROSENTHAL: My asking these 12 questions. 13 COMMISSIONER SIDNEY LINDEN: What I've 14 said is if the only basis for you having information 15 comes from a privileged document, then I don't think you 16 should ask the question until we resolve the question of 17 privilege. 18 That seems pretty clear. I -- 19 MR. PETER ROSENTHAL: Well -- okay. I -- 20 I've made my submissions and -- and -- 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 MR. PETER ROSENTHAL: -- and you've made 23 your ruling so. But I wonder and I will ask you -- your 24 permission before I -- I don't want the witness to 25 answer.


1 May I -- may I ask the witness what 2 considerations there were that ensued in -- as far as not 3 pursuing this injunction. You'll recall when I asked Ms. 4 Christie about this and she was the junior lawyer, that's 5 why I didn't want to ask the senior lawyer about it. 6 But you recall that it seemed that there 7 were considerations over time and she did give an 8 affirmative answer to the question I was -- I asked him. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. PETER ROSENTHAL: And that sheds 11 light on what happened on September 5 and 6 -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. PETER ROSENTHAL: -- this rush to -- 14 rush to an injunction and then subsequently -- 15 COMMISSIONER SIDNEY LINDEN: I don't want 16 you to discuss the contents of a document that might be 17 privileged. 18 MR. PETER ROSENTHAL: Yes. 19 COMMISSIONER SIDNEY LINDEN: And so I 20 mean the more you go into it, the more we're going to 21 have a problem so. 22 MR. PETER ROSENTHAL: With respect -- 23 COMMISSIONER SIDNEY LINDEN: Questions 24 that you can ask that don't depend on revealing contents 25 of a privileged document are legitimate questions to ask.


1 MR. PETER ROSENTHAL: Yes. Just -- just 2 for the record I should like it to be noted that I did 3 not refer to the document until others did. 4 COMMISSIONER SIDNEY LINDEN: No I know 5 that. 6 MR. PETER ROSENTHAL: I was not trying to 7 reveal a document at all, sir. Right. Just -- just to 8 clarify that, sir. I know you weren't accusing me of 9 that but -- 10 COMMISSIONER SIDNEY LINDEN: No, I'm not. 11 But I was a bit surprised too because I didn't know the 12 correspondence that had occurred among counsel. 13 Everybody in the room knew more about it at that point 14 than I did. Which is okay. But I didn't have a full 15 story at that point. 16 MR. PETER ROSENTHAL: All right. I 17 understand, sir. 18 COMMISSIONER SIDNEY LINDEN: And I'm 19 getting a little more now and I understand that we may, 20 at some point, have a motion and deal with this, 21 depending on how it goes. 22 MR. PETER ROSENTHAL: Thank you. Now -- 23 COMMISSIONER SIDNEY LINDEN: Ms. Twohig 24 wants to say something else. 25 MS. KIM TWOHIG: Yes, thank you, Mr.


1 Commissioner. 2 My concern here is that if we're talking 3 about events subsequent to September 11th and what 4 considerations this Government may have made at a later 5 point in time about whether or not to commence a new 6 application for an injunction, it's -- it's my submission 7 that this Government is entitled to claim privilege over 8 legal advice given and discussions that were held in the 9 context of legal issues involving Mr. McCabe. 10 He could certainly, perhaps, give 11 information as to what instructions he received. But not 12 with respect to the advice that he was given, in my 13 submission. Or that he gave. 14 MR. PETER ROSENTHAL: Well I -- I will be 15 happy to restrict then, for the present, to what 16 instructions he was given and then I'll argue the other 17 matter at the appropriate time, sir. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 Thank you, Ms. Twohig. 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: Now, sir, were you instructed at 23 various times, subsequent to September 7, 1995, that one 24 consideration to be considered when evaluating whether or 25 not to renew an injunction application, was the


1 consideration that it might provide a judicial forum for 2 a review of what happened on September 6 or 7? 3 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 4 Millar...? 5 MR. DERRY MILLAR: I think it's 6 irrelevant. What we're dealing with is what happened on 7 September 5th, 6th of 1995. And what his instructions 8 were in '96 or '97 or '98 are irrelevant with -- with 9 respect. 10 MR. PETER ROSENTHAL: With great respect, 11 Mr. Commissioner, that was ruled on surely in Ms. 12 Christie's -- and it does shed light on what happened on 13 September 5 and 6. I argued that successfully the other 14 day. I don't -- but if I'm called upon to, I will do it 15 again. 16 COMMISSIONER SIDNEY LINDEN: No. 17 MR. PETER ROSENTHAL: I mean now we're in 18 the question of relevance and I -- I'm not going to spend 19 a lot of time on it. But I -- I do respectfully request 20 that he be allowed to answer. 21 COMMISSIONER SIDNEY LINDEN: I thought 22 then that it did shed light on the decisions of September 23 5 and 6 -- 24 MR. PETER ROSENTHAL: Yes. 25 COMMISSIONER SIDNEY LINDEN: -- and


1 therefore was relevant. So I think that I will be 2 consistent with that aspect of my ruling. 3 MR. PETER ROSENTHAL: Thank you very 4 much. So -- 5 COMMISSIONER SIDNEY LINDEN: But, I did 6 also say I didn't want you to go too far and, obviously, 7 so and so on. 8 MR. PETER ROSENTHAL: Yes. No, I do 9 appreciate -- 10 COMMISSIONER SIDNEY LINDEN: You've got 11 one question. Yes. 12 MR. PETER ROSENTHAL: And I shall try to 13 stick within the boundaries posed, as expressed by Ms. 14 Twohig and by yourself, sir. 15 COMMISSIONER SIDNEY LINDEN: And Ms. 16 Twohig's. 17 18 CONTINUED BY MR. PETER ROSENTHAL: 19 Q: And -- and, therefore, sir, I'm not 20 asking for advice you may have given but I'm asking about 21 instructions that you may have been given or things - 22 things that you heard. 23 Was one (1) of the concerns in considering 24 whether or not a subsequent -- 25 COMMISSIONER SIDNEY LINDEN: It's not


1 the -- 2 3 4 CONTINUED BY MR. PETER ROSENTHAL: 5 Q: -- injunction application should be 6 made, the possibility that any judicial forum might 7 involve consideration of the events of September 5, 6 and 8 7? 9 COMMISSIONER SIDNEY LINDEN: Before you 10 answer the question -- 11 MS. KIM TWOHIG: Yes. 12 COMMISSIONER SIDNEY LINDEN: -- what I 13 didn't know yesterday when we discussed this was that 14 that information may come from a document that's 15 privileged. 16 MR. PETER ROSENTHAL: Yes. 17 COMMISSIONER SIDNEY LINDEN: I did not 18 know that. 19 MR. PETER ROSENTHAL: Right. 20 COMMISSIONER SIDNEY LINDEN: I know that 21 now. 22 MR. PETER ROSENTHAL: Yes. 23 COMMISSIONER SIDNEY LINDEN: And that's 24 why we're in a slightly different situation -- 25 MR. PETER ROSENTHAL: Yes.


1 COMMISSIONER SIDNEY LINDEN: -- than we 2 were yesterday. Now, in my view, it's being discussed on 3 the basis of whether or not it's relevant. I think what 4 you're doing is asking a question that's based on 5 information that may come from a privileged document. 6 MR. PETER ROSENTHAL: Yes. But -- but 7 Ms. Twohig, on behalf of this witness and on behalf of 8 the Government of Ontario, said that it was appropriate 9 to ask what instructions but not what -- what legal 10 advice he was given. 11 And, therefore, I -- I'm not asking you 12 about any legal advice you gave, I'm asking about what 13 you were told, not what you told others. 14 MS. KIM TWOHIG: Well that's the same 15 thing. That's an area of privilege and I'm sure My 16 Friend is well aware of that. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. PETER ROSENTHAL: Well, Ms. Twohig 19 said on the record, the transcript will show, that I 20 could ask what instructions he was given. And that's why 21 I reframed the question in that manner. 22 MS. KIM TWOHIG: What I had in mind, 23 perhaps, was: Did you subsequently receive instructions 24 to proceed with an injunction application? 25 That's what I was thinking of, but not


1 with respect to what considerations his client may have 2 brought to Mr. McCabe's attention. 3 COMMISSIONER SIDNEY LINDEN: Because that 4 would be the subject of a solicitor-client privilege. 5 Mr. Downard, I don't want to interfere with you. Is your 6 question regarding relevance or privilege? I think it's 7 relevance. I don't want to -- 8 MR. PETER DOWNARD: Just -- just to 9 assist you, sir, I -- I thought it was important just as 10 a matter principle -- I'd rather stay away from the 11 substance of this right now -- just a matter of principle 12 that -- that the concern that Ms. Twohig has raised with 13 you should be raised. So I have nothing further to -- 14 COMMISSIONER SIDNEY LINDEN: Yes. Okay. 15 Well, I think that, in order to be safe with this -- 16 MR. JONATHON GEORGE: Commissioner, I can 17 confirm that I, you know, I've discussed the matter with 18 Mr. Horton and Mr. Horner and they are bringing the 19 motion, so. 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 So we'll hear it. 22 MR. JONATHON GEORGE: That's right. 23 COMMISSIONER SIDNEY LINDEN: We're going 24 to hear it and we're going to deal with it. And if the 25 document is fair game for this Inquiry, then you'll have


1 an opportunity to ask this and other questions. And if 2 it isn't, you wouldn't want to ask this question because 3 it may call into question the integrity of the 4 proceedings, and you don't want that anymore than I do. 5 MR. PETER ROSENTHAL: Well -- 6 COMMISSIONER SIDNEY LINDEN: So let's 7 move on. 8 MR. PETER ROSENTHAL: -- I won't -- I 9 won't prolong this debate at this point, Mr. 10 Commissioner. Thank you. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: There was some small related area 14 that was allowed by Ms. Twohig's latest description of 15 the nature of privilege here, and I would like to pursue 16 it but I don't want to run counter to any ruling. I 17 thought I was limiting myself in accordance with her 18 earlier description of the waiver. 19 I believe that it was still, in her view, 20 within my right to ask with respect to subsequent 21 injunction attempts. 22 Was there one (1) ever made, actually 23 filed in court? 24 A: No. No. 25 Q: And -- I can't remember what -- what


1 I'm allowed to ask beyond that. What -- what did you 2 last say? 3 COMMISSIONER SIDNEY LINDEN: That she 4 never received any -- 5 MS. KIM TWOHIG: No. No subsequent 6 injunction application was ever filed with the court. 7 That's the kind of question I had in mind. And, as far 8 as I'm concerned, Mr. Rosenthal has exhausted his ability 9 to ask questions about this at this time. 10 MR. PETER ROSENTHAL: Mr. Commissioner, I 11 realize that my difficulty here shows the difficulty with 12 the position of the Crown in this matter. 13 COMMISSIONER SIDNEY LINDEN: Well, that's 14 why -- 15 MR. PETER ROSENTHAL: They're -- you 16 can't assert a little bit of privilege. 17 COMMISSIONER SIDNEY LINDEN: No. But 18 that's why we're here. That's our function, that's the 19 function of my counsel, and that's the purpose of Rule 20 32. I don't want to give anybody the impression that 21 there's anything going on that's irregular. 22 The way that it works has been explained. 23 MR. PETER ROSENTHAL: Yes. 24 COMMISSIONER SIDNEY LINDEN: The 25 document, if it's privileged, is produced --


1 MR. PETER ROSENTHAL: Yes. I appreciate 2 that. 3 COMMISSIONER SIDNEY LINDEN: -- it's 4 produced to my counsel, they review it, and if it's 5 subject to privilege it's not admissible, just that 6 simple. So we need -- 7 MR. PETER ROSENTHAL: That's with respect 8 to this document but I -- I won't belabour the point, 9 sir. I'll move on to a whole different area, if I may. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: If you could turn to Tab 19, please. 14 15 (BRIEF PAUSE) 16 17 Q: I'm sorry -- 18 COMMISSIONER SIDNEY LINDEN: Tab 19? 19 MR. PETER ROSENTHAL: -- it's the -- I a 20 have the right tab, but it's not -- it's not what I want, 21 sorry. Excuse me. 22 23 (BRIEF PAUSE) 24 25 MR. PETER ROSENTHAL: Probably everybody


1 else can tell me what I want. I want a -- where it is, I 2 want a copy of the Order as granted or the -- or the 3 Motion record requesting such. 4 5 (BRIEF PAUSE) 6 7 Q: At Tab 39, thank you very much, is 8 the Order. 9 10 (BRIEF PAUSE) 11 12 Q: And I should turn, within that 13 document, which is Inquiry Document 1000891, and Exhibit 14 number P-442 to these proceedings, to the fifth page and 15 paragraph 4 on that page. 16 This is a paragraph that you were asked 17 about by Mr. Klippenstein and I'll be much briefer than I 18 otherwise would have been, because of it. 19 It was paragraph 3, I believe, of your 20 original Motion -- Notice of Motion. This is the 21 paragraph about the Court ordering that officers, agents 22 and servants of the Governor of Ontario that are directed 23 to do so, and so on, right? 24 A: Yes. 25 Q: Now, sir, Mr. Klippenstein suggested


1 to you that this would give the possibility of a Minister 2 of the Crown instructing an agent or servant of his or 3 hers, to go and take possessions of the people in the 4 Park, prior to them being removed. 5 And you said something to the effect of, 6 this is sug -- suggestion that that might have been done 7 before the occupiers leaves, requires taking a very low 8 view of the Government, or something like that. 9 Do you recall that, sir? 10 A: Yes. 11 12 (BRIEF PAUSE) 13 14 Q: Well, some people might have a very 15 low view of the Government based on what we've heard with 16 respect to their action at the Interministerial Committee 17 meetings, sir. 18 And we've heard from several people there, 19 including Ms. Julie Jai, and Ms. Christie, that the 20 actions of the Government frustrated that Committee in 21 appointing a facilitator that might have, at least in 22 some evidence -- 23 COMMISSIONER SIDNEY LINDEN: Yes, Ms. -- 24 MS. KIM TWOHIG: This sounds a bit to me 25 like argument, and I'm not sure that the evidence that


1 Mr. Rosenthal says was before the Commission is accurate. 2 But, I'm wondering if he could just ask 3 the question? 4 MR. PETER ROSENTHAL: He will ask the 5 question after he puts the framework of the question, 6 sir. 7 COMMISSIONER SIDNEY LINDEN: No, but 8 you -- 9 MR. PETER ROSENTHAL: And she might wait 10 until I do so, before objecting. 11 COMMISSIONER SIDNEY LINDEN: Well, but 12 sometimes the framework is sneaking in a little argument, 13 Mr. Rosenthal. 14 MR. PETER ROSENTHAL: Well, with respect, 15 I do think I was reporting fairly -- 16 COMMISSIONER SIDNEY LINDEN: Well -- 17 MR. PETER ROSENTHAL: -- accurately. 18 COMMISSIONER SIDNEY LINDEN: All right, 19 carry on. 20 MR. PETER ROSENTHAL: And -- and with 21 less than my usual vigour, even. 22 COMMISSIONER SIDNEY LINDEN: You've lost 23 your train of thought. 24 MR. PETER ROSENTHAL: In any event... 25


1 (BRIEF PAUSE) 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: So, therefore, sir, I'm asking you to 5 take your mind back to that time -- 6 A: Which time is this? 7 Q: To the time that you put this 8 paragraph in the Notice of Motion. 9 A: Right. 10 Q: And we've seen that it is, certainly 11 broader, than the earlier version in the previous 12 injunction application, right? 13 A: Yes. 14 Q: And therefore it suggests it wasn't 15 just copied by a word processor, there was some process 16 that went into it, some thought process, to broaden it, 17 right? 18 A: Yes. 19 Q: And I'm asking you, sir, to try to 20 assist us as to where the notion of broadening that at 21 all, came from? 22 A: First of all, there's two (2) 23 questionable aspects of your question. I think you said 24 that this could be agents and -- or servants of any 25 minister of deputy minister.


1 Q: Yes. 2 A: With respect, that's not what it 3 says. It says officers, agents or servants of the 4 Governor of Ontario that are directed to do so by any 5 minister or deputy minister. 6 Q: Yes. 7 A: Then you also suggested that, well, 8 some people might not think so much of the Government or 9 something like that and then you -- and you cited, in 10 support of that, the minutes or the notes of minutes -- 11 notes, or something, of the Interministerial Committee. 12 It's -- it's -- as I understand it, it's 13 not the Government of Ontario that is impugned there, it 14 is, you know, the Premier or the Premier's office or 15 something of that sort. That would be -- 16 Q: Yes. 17 A: -- the theory that those people who 18 would -- who would attack in this way, that you suggest, 19 would adopt. 20 Q: Yes. And that would include 21 ministers and deputy ministers, right? 22 A: What would include -- 23 Q: The people whose motives are 24 impugned? 25 A: Yes.


1 Q: Yes. And those are the very people, 2 that by your order -- 3 A: The Government -- 4 Q: -- were empowered. 5 A: The Government of -- no. The motive 6 would be the Government of Ontario. I'm just -- I'm just 7 pointing out to you that the Government of Ontario is not 8 restricted to any minister or deputy minister or anything 9 of that sort. 10 Q: I appreciate your -- 11 A: All of these people have -- have a 12 role to play in our constitutional structure. They're 13 all -- they're all responsible to the -- to the 14 legislature and ultimately to the people as well as to 15 the Courts. 16 Q: Yes, sir. Now, but I'm -- I'm 17 directing you, now, in the wording that you put in: 18 "Who are directed to do so by any 19 minister or deputy minister." 20 A: Well, I'm just saying that your 21 question suffers from a great deal of tunnel vision and 22 selective, you know, and selection from the facts, but go 23 ahead. 24 Q: Do you agree, sir, that your 25 intention in putting in this motion -- this request for


1 this Order was to empower any minister or deputy minister 2 to direct officers, agents and servants of the Government 3 of Ontario to do the things listed in this paragraph? 4 A: My intention, rightly or wrongly, is 5 to facilitate the cleanup afterwards. 6 Q: The cleanup afterwards? 7 A: Yes. 8 Q: You say this was only because of the 9 possibility of cleanup afterwards? 10 A: Yes. 11 Q: Is that your evidence, sir? 12 A: Yes. 13 Q: Now, are you telling us, sir, that 14 you thought you had to put a paragraph of an order into 15 an injunction application in order to allow Ministry of 16 Natural Resources people to clean up a Park after it was 17 vacated? 18 A: No, I don't think I had to. I, 19 however, did. 20 Q: Sir, wouldn't that be a rather absurd 21 reason for putting in an order to allow clean up of a 22 Park after it was vacated? 23 COMMISSIONER SIDNEY LINDEN: Yes...? 24 OBJ MS. KIM TWOHIG: I object to this 25 question.


1 COMMISSIONER SIDNEY LINDEN: Well -- 2 MS. KIM TWOHIG: Mr. McCabe has testified 3 why -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MS. KIM TWOHIG: -- he did it. 6 COMMISSIONER SIDNEY LINDEN: What his 7 intention was. I -- 8 MS. KIM TWOHIG: Yes. 9 MR. PETER ROSENTHAL: Yes, sir, he has 10 testified it and I -- in my respectful submission -- 11 COMMISSIONER SIDNEY LINDEN: Just -- I 12 repeat again, Mr. Rosenthal, what I said -- 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: -- to you in 15 an earlier case, this is not a criminal trial. There's-- 16 MR. PETER ROSENTHAL: No. 17 COMMISSIONER SIDNEY LINDEN: -- nobody 18 charged with a criminal offence here. The tone and the 19 manner of the questioning suggests -- 20 MR. PETER ROSENTHAL: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- an 22 element of criminality, almost. I don't want to use 23 quite that strong a word. But, you're entitled to ask 24 questions, but the suggestions that are implicit in your 25 questions are quite inappropriate, if I might --


1 MR. PETER ROSENTHAL: Well, with great 2 respect -- 3 COMMISSIONER SIDNEY LINDEN: -- say 4 respectfully. 5 MR. PETER ROSENTHAL: -- Mr. 6 Commissioner, in my respectful submission, this Witness 7 has just told us that he put this paragraph in, in order 8 to allow clean up of the Park after it was vacated. 9 COMMISSIONER SIDNEY LINDEN: That's 10 exactly right, and he said that in his evidence -- 11 MR. PETER ROSENTHAL: Yes. 12 COMMISSIONER SIDNEY LINDEN: -- in-chief 13 and even after being cross-examined on this, by at least 14 one (1) Counsel already. 15 MR. PETER ROSENTHAL: Yes, but with great 16 respect, Mr. Commissioner, in my submission, I appreciate 17 it's not your position, obviously, but in my submission 18 that is so absurd on the face of it -- 19 COMMISSIONER SIDNEY LINDEN: That's your 20 argument. 21 MR. PETER ROSENTHAL: -- and I have the 22 right to challenge it in cross-examination. 23 COMMISSIONER SIDNEY LINDEN: That's your 24 argument. 25 MR. PETER ROSENTHAL: Yes, I will do so


1 in argument, of course, but -- 2 COMMISSIONER SIDNEY LINDEN: You've 3 already challenged it and you've already got your answer 4 and I suggest that you move on. 5 MR. PETER ROSENTHAL: I shall, following 6 your direction, sir. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Please turn to your Tab 63. 12 13 (BRIEF PAUSE) 14 15 Q: At Tab 63 we find Inquiry document 16 1011745, Exhibit P-634 to these proceedings. It's a 17 document entitled, Criminal and Civil Proceedings to 18 Terminate the occupation of Ipperwash Provincial Park by 19 the Stoney Pointers. 20 Do you have that document in front of you, 21 sir? 22 A: Yes. 23 Q: Now, Ms. Christie told us, if you 24 look on page 2 please, that the -- at least the substance 25 of what appears under the heading, "Civil proceedings,"


1 on page 2, was compiled as a result of your and her joint 2 effort. 3 Is that fair? 4 A: I expect that's so, yes. 5 Q: Sorry? 6 A: I expect that that's so. I think I 7 testified earlier that, you know, the circumstances of 8 how the -- the fruit of our labour on that evening of the 9 5th came to be encompassed, I presume, in this document, 10 you know, I have no recollection of -- I don't know who 11 typed it and so forth and what use was made of it the 12 next day. 13 But I do accept the proposition that the - 14 - this is the fruit of -- of our labour on the -- on the 15 evening of the 5th. I notice it's -- has some typos 16 among other things in it. 17 Q: The last paragraph of that talks 18 about the -- on page 2, talks about the difficulty in 19 obtaining an ex parte injunction. 20 Is that correct? 21 A: Yes. 22 Q: And we've had other evidence, I'm not 23 going to take you through it, of you expressing the 24 thought that there were no grounds for an ex parte 25 injunction and so on, right?


1 A: Yes. 2 Q: Is that correct? 3 A: Yes. 4 Q: You recall that. Now if you could 5 please turn to your Tab 22 which also, for the rest of 6 us, is one of the phone call -- one of the phone call 7 transcripts which is in Exhibit P-444(b) at Tab 39. 8 9 (BRIEF PAUSE) 10 11 Q: If you could please turn to page 268 12 of that document about one-third of the way down the 13 page: 14 "McCabe: Well the latest here is I'll 15 be interested in -- on due course to 16 hear what -- what the latest on the 17 scene is, but I expect to get confirmed 18 instructions later on this afternoon to 19 seek an ex parte interlocutory 20 injunction." 21 And you agree that you did say those words 22 or something very close to that on this occasion, sir? 23 Is that right? 24 A: Yes. 25 Q: And if you look at the beginning of


1 this, you'll see that it says the time is 14:36:54, in 2 other words 2:36 in the afternoon on September 6th, 1995. 3 Is that correct? 4 A: Yes. 5 Q: So at this point you obviously 6 expected to get confirmation or confirmed instructions 7 later on to seek an ex parte interlocutory injunction, 8 right? 9 A: Apparently so, yes. 10 Q: And so it -- it appears that you were 11 in a situation similar to when I asked you about another 12 document that you'd been -- you'd been told probably 13 you'll have to do this, but you didn't get actual 14 confirmation yet. 15 A: It -- it seems to be the case. Now I 16 don't recall that sequence of events. 17 Q: I appreciate it, it's ten (10) years 18 later -- 19 A: Yes. Yes. 20 Q: -- and you don't recall exactly. But 21 that's the only reasonable reading of this passage; is 22 that not right? 23 A: Yes. 24 Q: And at the time you would have 25 obviously told Mr. Carson the truth, you weren't trying


1 to hide it from him in any way or anything? 2 A: Yeah. I expect I told him the truth, 3 yes. 4 Q: So we can assume with some confidence 5 that at 2:36 in the afternoon September 6th, 1995 6 whatever else happened with respect to this, at that 7 point, you'd been given an indication that you probably 8 will go for an ex parte injunction but you were awaiting 9 confirmed instructions before you actually did it, right? 10 A: Yes. It... 11 Q: Sorry, did you want to add something 12 related to that, sir? 13 A: Yes. This -- the -- the exchange 14 that you're referring to, it seems to me that what I'm 15 talking about here is, "Ah, tomorrow in Sarnia." 16 Q: Yes. 17 A: So it occurs to me as a possibility 18 that what's going on here is this business about somebody 19 has suggested that we should try to proceed in Toronto 20 today. 21 Q: I see. 22 A: And I'm again, as a possibility 23 though I don't -- you know, I don't -- I don't remember 24 this with particularity. It could be that when I say, 25 "confirmed instructions," and so forth, what I have in


1 mind is somebody has come up with this suggestion that we 2 can proceed today somewhere; Toronto or someplace. 3 And I'm explaining to Carson that I think 4 what's actually going to happen is that I'm going to be 5 in Sarnia tomorrow morning, just as a possibility. 6 And it -- it just occurred to me, as 7 you've been reading these passages -- 8 Q: Yes. 9 A: -- I don't know that that's the case 10 but that may be what's going on here. 11 Q: You're suggesting that it's 12 additional information to what you answered before. 13 You're not qualifying the previous answer. You're 14 saying -- 15 A: That's -- 16 Q: -- in addition, this jogs your memory 17 that maybe there was a question -- 18 A: Well, it -- 19 Q: -- of Toronto or Sarnia -- 20 A: -- it's not a question of jogging my 21 memory. It just occurs to me as a possibility which 22 would -- which would account for this -- for this 23 statement. 24 Q: Okay. Now, so you expected to get 25 confirmed instructions later in the afternoon. And,


1 evidently, you did get such instructions, right, because 2 you were there the next morning doing it? 3 A: Yes. Or, you know, subject to this 4 possibility, I received confirmed information that going 5 today is impossible. 6 Q: Well, it says, "confirmed 7 instructions", right? 8 A: It does. 9 Q: Now, instructions, who had the 10 potential to give you such instructions? Mr. Taman did? 11 A: Right. Yeah. I'm suggesting here 12 that I used the word 'instructions'. What I'm telling 13 the officer is that I think we're going to be in Sarnia 14 tomorrow and -- but I want to confirm that fact, I'm not 15 entirely certain of that fact. That's a possibility. 16 Q: Yes. But if we take it in the terms 17 of the reading -- 18 A: Yes. 19 Q: -- and -- and you -- I thought you 20 agreed that's what it probably meant but -- and I think 21 you still do, do you? 22 A: Yeah. Probably, yes. 23 Q: Okay. So it probably means that you 24 were to be getting -- that you had been notified by 25 someone, perhaps Larry Taman or someone else who had the


1 authority to do so -- 2 A: Or -- 3 Q: -- that probably -- 4 A: -- perhaps through the intermediary 5 of Elizabeth, yes. 6 Q: Or via an intermediary. 7 A: Yes. 8 Q: That probably we'll go for an ex 9 parte injunction but you're waiting confirmed 10 instructions; right? 11 A: That's what it seems -- 12 Q: Okay. 13 A: -- to suggest, yes. 14 Q: Now, I just want -- my question was, 15 who had the authority at that point to give you such 16 instructions? Mr. Taman was such a person, wasn't he? 17 A: Yes. 18 Q: And Mr. Harnick, the Attorney 19 General, was such a person? 20 A: He would have been such a person, 21 yes. 22 Q: And was there anybody else who could 23 have been such a person who would have had the authority 24 to give you confirmed instructions to proceed? 25 A: I don't think so. I mean, it's


1 possible that I would have received such confirmed 2 instructions through an intermediary; Elizabeth -- 3 Q: Yeah. 4 A: -- even Julie Jai, or something of 5 that sort, could have told me and said, you know, Guess 6 what, I've just heard from so-and-so that you are to do 7 such and such. 8 Q: Yes. Those two (2) persons were the 9 only persons who had the authority to instruct you but 10 they may not have done so directly, they might have done 11 so through an intermediary. 12 Is that what you suggest? 13 A: That's true, yes. 14 15 (BRIEF PAUSE) 16 17 Q: And that was at 2:36 in the afternoon 18 and I -- I gather that you can't assist us in any way as 19 to when you would have gotten those confirmed 20 instructions? 21 A: No. Or -- or whether I did. 22 Q: Well, we can assume that you did, can 23 we not, by the fact that you were there? You did -- 24 A: Yes. 25 Q: -- you did do the ex parte injunction


1 and you were waiting confirmed instructions. So 2 evidently you got the instructions and went ahead, right? 3 A: Well, the -- the fact that I was 4 there speaks to the -- tells us that I was satisfied with 5 the -- with the nature and quality of the instructions 6 that I received, yes. 7 Q: Yes. 8 A: Yes. 9 Q: But at this point you weren't, at 10 this point you were waiting confirmed instructions and -- 11 A: It -- it would appear so at this 12 stage, yes. 13 Q: And a few hours later you were there? 14 A: Yes. 15 Q: Now, you've told us about the special 16 responsibility on a person, a lawyer applying for an ex 17 parte injunction -- 18 A: Yes. 19 Q: -- to report the facts in a fair and 20 balanced way given that the defendant is not present. 21 What is, in your understanding, the origin 22 of that responsibility or the basis for that 23 responsibility? 24 A: The origin? 25 Q: Is this case law, is this a Law


1 Society requirement, is this -- what is this? 2 Where do you get that obligation from? 3 I mean, you wrote about it in the memo, 4 for example. 5 OBJ MS. KIM TWOHIG: I -- I object, in that I 6 think that's an accepted principle. The -- Mr. McCabe 7 has accepted that that was his obligation and I -- I 8 don't think it's fair for him to be cross-examined on the 9 origin of that rule. 10 MR. PETER ROSENTHAL: I wasn't cross- 11 examining with the same vigour -- 12 COMMISSIONER SIDNEY LINDEN: No. Just 13 ask him if he knows. 14 MR. PETER ROSENTHAL: -- as I did on 15 something else. 16 MS. KIM TWOHIG: Well, I think he was. 17 COMMISSIONER SIDNEY LINDEN: Just ask him 18 if he knows. If he does know -- 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Yeah. No. No. If -- if you don't 22 know, you just know, as Ms. Twohig suggests, that it's 23 some -- you learned it somewhere and you know for sure 24 you have to do it, that's fine. I just thought you might 25 assist us as to the basis of it.


1 A: I -- I'm afraid at the moment I 2 can't, no. 3 Q: Okay. Thank you. So now, there was 4 a question that Ms. Twohig suggested that Mr. 5 Klippenstein put to you, and he was talking about your 6 observing that responsibility in the -- in the 7 application on September 7, but it wasn't put, so I 8 should like to put it to you. 9 In your view, had you known about these 10 facts, would it have been your obligation to include 11 these facts, because of that obligation to fairly present 12 both sides, okay? 13 A: Which facts? 14 COMMISSIONER SIDNEY LINDEN: Which facts? 15 MR. PETER ROSENTHAL: I'm going to give 16 you some -- 17 COMMISSIONER SIDNEY LINDEN: You -- 18 MR. PETER ROSENTHAL: -- and I'm going to 19 ask you -- 20 THE WITNESS: Oh, yes. 21 MR. PETER ROSENTHAL: Yeah. 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: So I'm going to put several different 25 matters to you and ask you if, in your view, that


1 obligation would have required you to ensure that those 2 facts were before the Court, had you been aware of the 3 facts. 4 COMMISSIONER SIDNEY LINDEN: If you knew 5 them. 6 MS. KIM TWOHIG: In order to be perfectly 7 fair, My Friend has said, If you had known these facts 8 would you have been -- I'm going to ask you if you had 9 been -- would have been obliged to put them to the Court. 10 I would ask that he first establish 11 whether Mr. McCabe knew these facts, because otherwise it 12 might leave an unfair impression. 13 COMMISSIONER SIDNEY LINDEN: Well, that's 14 probably a better way to put it. 15 MR. PETER ROSENTHAL: With great respect, 16 Mr. Commissioner -- 17 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 18 Millar...? 19 MR. PETER ROSENTHAL: My Friend's 20 constant interruptions are inappropriate. 21 COMMISSIONER SIDNEY LINDEN: They're not 22 constant interruptions. They are legitimate -- 23 MR. PETER ROSENTHAL: They are. 24 COMMISSIONER SIDNEY LINDEN: -- 25 observations and they're helpful.


1 MR. PETER ROSENTHAL: With great 2 respect -- 3 COMMISSIONER SIDNEY LINDEN: In my view. 4 Yes, Mr. Millar...? 5 MR. PETER ROSENTHAL: Well, okay, I -- 6 MR. DERRY MILLAR: This is pure 7 speculation. The witness can be asked, and we know what 8 the witness did. If My Friend wants to make argument -- 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. DERRY MILLAR: -- to you at the 11 appropriate time, it's argument. 12 COMMISSIONER SIDNEY LINDEN: That's 13 right. 14 MR. DERRY MILLAR: Really, in effect, 15 these -- the questions you propose to ask are pure 16 speculation. The witness did what the witness did. 17 COMMISSIONER SIDNEY LINDEN: No, but he's 18 going to ask the witness if he knew of the existence of 19 certain facts. 20 MR. DERRY MILLAR: No, he's asking the 21 question, if you had known of the existence -- 22 COMMISSIONER SIDNEY LINDEN: No, I don't 23 think that's a proper way to put her. I think Ms. Twohig 24 made a legitimate observation. That's why I say I think 25 it's a legitimate observation.


1 You should ask this witness if he was 2 aware of these facts and if he is, then you might -- 3 we'll see where we go from there. 4 If he's not aware of these facts, then 5 we're not going anywhere. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Okay, let me ask you if you were 9 aware of the following facts. 10 Were you aware that there was a claim of a 11 burial ground? 12 A: No. 13 Q: You were not aware of that fact? 14 A: I was aware -- I was aware, probably 15 from 1993. I vaguely associated the people in the Camp 16 with a burial site or a claim for a burial site which may 17 well have been in relation to Camp Ipperwash, that is the 18 military base. 19 Q: Well, I'm - Mr. Klippenstein took to 20 you to some notes of what Ron Fox put and so on -- 21 A: Yes, yes. 22 Q: You were at those meetings, right, 23 and you heard that there was a claim for a burial ground, 24 did you not, sir? 25 A: Well, not a claim for a burial


1 ground, there's -- 2 Q: No, I didn't mean a -- 3 A: There's a sugge -- We're glad to have 4 our burial ground back. 5 Q: Okay. 6 COMMISSIONER SIDNEY LINDEN: And I'm not 7 sure -- 8 MR. PETER ROSENTHAL: I meant a claim -- 9 COMMISSIONER SIDNEY LINDEN: I'm not 10 sure -- 11 MR. PETER ROSENTHAL: Not in the -- 12 COMMISSIONER SIDNEY LINDEN: -- I'm not 13 sure that you said you heard that. I don't remember what 14 your testimony was, if you recall what you heard or 15 didn't hear at that meeting or what you can recall from 16 that meeting. 17 Mr. Klippenstein -- 18 MS. KIM TWOHIG: He was -- 19 COMMISSIONER SIDNEY LINDEN: -- did point 20 out that in the notes. 21 MS. KIM TWOHIG: The question put to Mr. 22 McCabe was, were you aware of a claim for a burial 23 ground. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. KIM TWOHIG: And perhaps the word


1 "claim" has several meanings that -- 2 COMMISSIONER SIDNEY LINDEN: Well, yes. 3 MS. KIM TWOHIG: -- needs to be explored, 4 and I think that's what Mr. -- 5 MR. PETER ROSENTHAL: No, I was just 6 going to -- 7 MS. KIM TWOHIG: -- McCabe is trying to 8 do. 9 MR. PETER ROSENTHAL: -- suggest, and 10 maybe there's a semantic difference there. I wasn't 11 suggesting a formal legal document. 12 13 CONTINUED BY MR. PETER ROSENTHAL: 14 Q: You were aware that at least some of 15 the occupiers were alleging that there was a burial 16 ground in Ipperwash Park and -- an Indian burial ground; 17 is that not correct? 18 A: This statement that we're glad to 19 have our burial ground back, had been made by Mr. Bert 20 Manning as, you know, as I understand it. 21 Now, whether, you know, I know that 22 because of the -- recently reading the -- the evidence 23 that was -- that was given by the officer and also 24 reading the notes of the September 6th meeting, you know, 25 a statement, yes, by people --


1 Q: Yes. 2 A: -- after having entered the Park that 3 we're glad to have our burial -- 4 Q: Yes, and on -- 5 A: -- ground back -- 6 Q: -- September 6 -- 7 A: -- yes. 8 Q: On September 6th, you were at that 9 meeting, right? 10 A: Yes. 11 Q: And you would have been aware that at 12 least some people were alleging that there was a burial 13 ground, right? 14 A: I expect so, yes. 15 Q: Okay. So you're aware of that. 16 Would you agree that, that fact, that some people were 17 making that allegation, was a fact that full and fair 18 disclosure would require you to put in front of the Judge 19 hearing the injunction application? 20 A: Yes. 21 Q: Thank you. Now, also I believe at 22 the September 6th meeting, Mr. Klippenstein put to you a 23 statement from Inspector Fox that some people were 24 claiming it was their land, again not -- well, alleging 25 that it was their land, let's say, so as not to be


1 confused with a technical claim of any kind. 2 Some people were saying it was their land. 3 Were you aware of such statements being made by some of 4 the occupiers? 5 A: I expect I was, yes. 6 Q: Yes. Would you agree that full and 7 fair disclosure would require you to put that fact in 8 front of the judge hearing the injunction application? 9 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 10 Twohig...? 11 MS. KIM TWOHIG: Just out of fairness to 12 the witness, the transcript speaks for itself and Mr. 13 McCabe was not giving evidence to the court. He elicited 14 evidence from the witness and, in fact, he elicited 15 evidence on those -- 16 COMMISSIONER SIDNEY LINDEN: He elicited 17 that fact. 18 MS. KIM TWOHIG: -- very issues -- 19 COMMISSIONER SIDNEY LINDEN: He elicited 20 that fact. 21 MS. KIM TWOHIG: -- at page 10 of the 22 transcript. 23 COMMISSIONER SIDNEY LINDEN: You've got 24 to be fair. He did elicit that fact. That fact came 25 out.


1 MR. PETER ROSENTHAL: Sir, I'm asking 2 exactly the question that Ms. Twohig said I should ask 3 and -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. PETER ROSENTHAL: -- that was 6 required by the court -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. PETER ROSENTHAL: -- and by the 9 Commission and I'm doing so and I should be allowed to 10 proceed. And then what I do with the answers I'll -- 11 COMMISSIONER SIDNEY LINDEN: You're doing 12 -- you're doing your best and I'm not -- it's just that 13 each time you ask the question each fact stands on a 14 different footing. 15 MR. PETER ROSENTHAL: Yes. 16 COMMISSIONER SIDNEY LINDEN: The fact 17 regarding the allegation of land claim -- 18 MR. PETER ROSENTHAL: Yes. 19 COMMISSIONER SIDNEY LINDEN: -- was in 20 fact elicited -- 21 MR. PETER ROSENTHAL: Yes. 22 COMMISSIONER SIDNEY LINDEN: -- at the 23 injunction hearing by questions asked by -- 24 MR. PETER ROSENTHAL: That was not my 25 question. My question was: Was it his responsibility to


1 bring it in front of them, and I don't think he got an 2 opportunity to answer that question with respect to this. 3 That's what I'm doing there, sir. Mr. Commissioner, I'm 4 sorry it's fault for being confused. 5 I did get permission to ask, the record 6 will show the following questions. First, did you know 7 that such and such was a fact and if he agrees with the 8 fact to ask him -- 9 COMMISSIONER SIDNEY LINDEN: All right. 10 MR. PETER ROSENTHAL: -- did you view it 11 as your obligation because of fair and full disclosure to 12 place that before the court. That's what I'm in the 13 process of doing. 14 COMMISSIONER SIDNEY LINDEN: All right. 15 The fact that he did it, well that's another matter. 16 MR. PETER ROSENTHAL: Whether he did it 17 or didn't is a different question. 18 COMMISSIONER SIDNEY LINDEN: Okay. 19 MR. PETER ROSENTHAL: So, do we all 20 understand what I'm trying to do now, sir? 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: So, with respect to the allegation 24 that it's our land, you agree that you were aware that 25 some of the people at least were making that allegation;


1 is that correct? 2 A: Yes. 3 Q: And would you agree that your 4 obligation of full and fair disclosure required you to 5 place that information before the court? 6 A: Yes. And -- and as we used to say at 7 the University of Toronto I think, res ipso locutor. 8 These people have taken forcible occupation of this 9 property. No one is under any illusion that they're 10 saying it's our lands. 11 COMMISSIONER SIDNEY LINDEN: Okay. Are 12 there other facts that you want to ask him if he's knows 13 about? 14 MR. PETER ROSENTHAL: Yes, sir. 15 16 CONTINUED BY MR. PETER ROSENTHAL: 17 Q: Now, if you could turn then again to 18 -- to -- sorry the conversation with Inspector Carson 19 which is at your Tab 22 and at Tab 39 of Exhibit P- 20 444(b). I should like to take you to -- beginning at 21 page 271 please. 22 In the middle of page 271: 23 "McCabe: We will be seeking this ex 24 parte as I say which means without 25 notice and in those circumstances, ah,


1 it's important to be able to show some 2 kind of urgency." 3 Right? That's correct, you did say that? 4 A: Yes. 5 Q: This is towards the beginning of your 6 conversation with Inspector Carson before he gave you any 7 details as to what had been happening there. 8 Is that fair to say? 9 A: I, you know, I'm not sure. I'd have 10 -- I think the appropriate answer is the transcript 11 speaks for itself so, yeah. 12 Q: That's fine. Now in this case I'll 13 accept that answer. 14 A: Yeah. 15 Q: Lets. continue then. You -- Mr. 16 Carson says: 17 "Yes. 18 [You respond] In order to demonstrate 19 that if the order is not granted or if 20 the time necessary to give the period 21 of notice, ah, you know, serious 22 consequences could occur. 23 Carson: Right. 24 McCabe: And we -- there where, I 25 think, the thing that has gotten people


1 particularly concerned here is the 2 reports of gunfire last night. 3 Carson: Yes. 4 And -- and the fire. 5 Carson: Yes. 6 And the alcohol and those sorts of 7 things. 8 I mean, does that worry you? 9 Carson: Yes." 10 Then there's continuation. Well -- and 11 but then about a third of the way down Inspector Carson 12 says: 13 "Okay. But I say that I have to 14 qualify that somewhat. 15 [You]: Yeah. 16 Carson: The fire was set up as an 17 ambush. Okay, our guys got ambushed 18 down and deal with the fire on the 19 roadway and got bombarded with rocks 20 which caused damage to windshields of 21 three (3) vehicles. Fortunately no 22 vehicles -- officer were hurt. 23 Mr. McCabe: Right. 24 Carson: Now, the gunfire was back in 25 the bush. I have to be frank with you,


1 we have not had a weapon pointed at us, 2 we haven't seen one (1) fired in any 3 direction, and there's no reason to 4 believe that the firing we heard last 5 night was anything more than audio for 6 our benefit. 7 McCabe: I see. 8 Carson: Okay. So, when you hear that 9 there's gunfire there, you can't really 10 use that. Well, you know, I mean, it's 11 a significant factor from a safety 12 point of view, from my perspective, 13 that I know obviously there's weaponry 14 in there, but to say from a safety 15 point of view that it's been -- our 16 officers have been threatened with 17 weapons, I can't say that." 18 Now, sir, were you aware of the facts or 19 at least that Mr. Carson told you those facts on 20 September 6th? 21 A: Yes. I expect I was as I -- I was 22 listening to them, yes. 23 Q: And would you agree that full and 24 fair disclosure would require you putting that 25 information in front of the court?


1 COMMISSIONER SIDNEY LINDEN: I'm having a 2 hard time following that. I'll let you answer that, Ms. 3 Twohig, or help me with that because I'm having a hard 4 time with that. If he had called Mr. Carson, Mr. Carson 5 had been a witness, he may have testified to that, I 6 don't know. But, Mr. Carson wasn't there, somebody else 7 was. 8 MR. PETER ROSENTHAL: I -- sir, we're now 9 asking the question, you recall, whether or not it was 10 put before the court. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. PETER ROSENTHAL: We're asking the 13 question: Would you agree -- 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. PETER ROSENTHAL: -- that full and 16 fair disclosure require -- perhaps I should rephrase the 17 question. 18 Full and fair disclosure requires that if 19 you mention guns or firing at all, that you then put in 20 the qualification that the Incident Commander had told 21 you. 22 COMMISSIONER SIDNEY LINDEN: I don't know 23 how it came out. 24 MS. KIM TWOHIG: Mr. Commissioner -- 25 COMMISSIONER SIDNEY LINDEN: I don't know


1 how it came out yet, so. Do you, Ms. Twohig? 2 MS. KIM TWOHIG: Yes. First of all, 3 there is a reference in the transcript wherein Acting 4 Sergeant Wright -- 5 MR. PETER ROSENTHAL: Excuse me. Mr. 6 Commissioner, we're not dealing with whether it was in 7 there or not. We're dealing with the question that Ms. 8 Twohig told me to ask, and with your permission I'm 9 asking was it his responsibility to put it in there. 10 Can we please stay focussed so that we can 11 -- so we can deal with this in a reasonable amount of 12 time. 13 COMMISSIONER SIDNEY LINDEN: Well, I -- 14 MS. KIM TWOHIG: Well, that -- but -- 15 MR. PETER ROSENTHAL: That's the 16 question. Was it his responsibility. Whether he -- 17 COMMISSIONER SIDNEY LINDEN: Well, calm 18 down. 19 MR. PETER ROSENTHAL: -- whether he 20 fulfilled that responsibility is a different question. 21 COMMISSIONER SIDNEY LINDEN: All right. 22 Calm down. 23 MS. KIM TWOHIG: I -- I think what we 24 need to do here though, Mr. Commissioner, is to have some 25 appreciation of Counsel's role in a proceeding of this


1 nature. 2 It's one thing if Mr. McCabe is putting an 3 affidavit before the court. There are certain 4 obligations, you know, much the same that would apply in 5 that case. 6 But I suggest that where he's eliciting 7 viva voce evidence, he may have a duty to ask certain 8 questions. But he has not control over the evidence that 9 is in fact given by the Witness, and that's an important 10 distinction that I think My Friend appreciates and -- and 11 I trust that his questions will reflect that 12 appreciation. 13 MR. PETER ROSENTHAL: With great respect, 14 Mr. Commissioner, that is an entirely improper objection 15 by Counsel -- 16 COMMISSIONER SIDNEY LINDEN: Mr. --- 17 MR. PETER ROSENTHAL: -- that gives the 18 answer -- gives him an answer to a question. It has no - 19 - it's not an objection to my question at all -- 20 COMMISSIONER SIDNEY LINDEN: Mr. 21 Rosenthal -- 22 MR. PETER ROSENTHAL: -- it's giving him 23 an answer to the question. 24 COMMISSIONER SIDNEY LINDEN: -- the way 25 this works is I get to rule on whether objections --


1 MR. PETER ROSENTHAL: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- are 3 proper. 4 MR. PETER ROSENTHAL: Yes. 5 COMMISSIONER SIDNEY LINDEN: So, I 6 appreciate your view on the matter but it's not helpful. 7 Mr. Downard, you have something you want 8 to say? 9 MR. PETER DOWNARD: Yes. I think that as 10 a matter of principle the question is objectionable -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. PETER DOWNARD: -- because he's being 13 asked to express an opinion retrospectively upon whether 14 certain conduct met the obligation or not. That's a 15 question for an expert. And it's doubly offensive -- 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. PETER DOWNARD: -- because he's being 18 asked to pass judgment on his conduct. 19 COMMISSIONER SIDNEY LINDEN: I'm finding 20 it very, very difficult to follow, even though Mr. 21 Rosenthal thinks it's simple enough. It's not really 22 that simple. 23 MR. PETER ROSENTHAL: Well -- sorry -- 24 COMMISSIONER SIDNEY LINDEN: In the 25 context in which the questions are being asked, these are


1 very difficult and I'm not sure -- 2 MR. PETER ROSENTHAL: With great respect, 3 Mr. Commissioner, I do understand that there is some 4 confusion but may I try to make it clear. 5 COMMISSIONER SIDNEY LINDEN: Well, you 6 know -- 7 MR. PETER ROSENTHAL: And I think the 8 record will make it clear. 9 COMMISSIONER SIDNEY LINDEN: I -- 10 MR. PETER ROSENTHAL: But -- and the 11 record will clearly show the following, Mr. Commissioner, 12 that -- 13 COMMISSIONER SIDNEY LINDEN: If there are 14 facts that are relevant to the granting of the injunction 15 that this Witness is aware of, you want to ask him if 16 he's aware of them. That's all we're trying to do. 17 MR. PETER ROSENTHAL: But, with -- now, 18 with great respect, Mr. Commissioner, I'm sorry, it's 19 late in the day and it's -- it's complicated. The 20 evolution of -- the way we got to here in the last half 21 an hour, as I'm quite sure the record will show, is the 22 following. 23 I'm tried to explore this area as to 24 whether he fulfilled in full his obligation. And I was-- 25 COMMISSIONER SIDNEY LINDEN: To what end?


1 MR. PETER ROSENTHAL: To understand what 2 happened in this injunction application, sir. 3 COMMISSIONER SIDNEY LINDEN: Well, we've 4 got the record. We have -- 5 MR. PETER ROSENTHAL: Sure. 6 COMMISSIONER SIDNEY LINDEN: -- we have 7 the record. We have the full record. We know exactly 8 what happened at the injunction -- 9 MR. PETER ROSENTHAL: Sir, with great 10 respect, I was cut down to this line of questioning by 11 Ms. Twohig and your rulings. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. PETER ROSENTHAL: She -- it was 14 agreed that the line of questioning I could pursue in 15 this area is: Determine if he was aware of certain facts 16 and then ask him if, in his view, it was within -- his 17 obligation required him to put those facts before the 18 Court. 19 COMMISSIONER SIDNEY LINDEN: Well, I'm 20 not sure -- 21 MR. PETER ROSENTHAL: I was doing so. 22 COMMISSIONER SIDNEY LINDEN: It maybe -- 23 MR. PETER ROSENTHAL: But when I got to a 24 fact that was difficult for him -- 25 COMMISSIONER SIDNEY LINDEN: No, no --


1 MS. KIM TWOHIG: Sorry -- 2 MR. PETER ROSENTHAL: -- Ms. Twohig got 3 up -- 4 MS. KIM TWOHIG: -- it wasn't about -- 5 MR. PETER ROSENTHAL: -- and objected to 6 the procedure. 7 COMMISSIONER SIDNEY LINDEN: That's not 8 the impression -- 9 MS. KIM TWOHIG: But we can't -- 10 MR. PETER ROSENTHAL: Well, that's what 11 happened. The record will show, in my respectful 12 submission, sir. 13 COMMISSIONER SIDNEY LINDEN: That's fine. 14 That's not the -- 15 MS. KIM TWOHIG: With -- 16 COMMISSIONER SIDNEY LINDEN: -- impression 17 that I have at the moment. 18 Yes, Ms. Twohig...? 19 MS. KIM TWOHIG: I don't think we can say 20 it was difficult for the witness -- 21 COMMISSIONER SIDNEY LINDEN: No. 22 MS. KIM TWOHIG: -- when he didn't, in 23 fact, answer the question -- 24 COMMISSIONER SIDNEY LINDEN: No. 25 MS. KIM TWOHIG: -- due to my objection.


1 But again, I just -- this is very difficult in that while 2 My Friend is certainly entitled to ask questions about 3 what happened surrounding the injunction, I don't think 4 it's the intention here, and we don't want it, to turn 5 into a situation where he's effectively attacking the 6 professional integrity of counsel who's sitting in this 7 witness box. 8 COMMISSIONER SIDNEY LINDEN: It seems to 9 be what's happening and -- 10 MS. KIM TWOHIG: Yes. 11 COMMISSIONER SIDNEY LINDEN: -- it's -- 12 some of these things that you are saying are facts are 13 the result of a conversation that they had. I'm not sure 14 whether they're facts or not and I thought -- 15 MR. PETER ROSENTHAL: Yes. 16 COMMISSIONER SIDNEY LINDEN: -- you were 17 referring to different kinds of facts, not these kind of 18 -- this is a conversation that they had, and at that 19 time, as I understood it, Mr. McCabe thought that Mr. 20 Carson might be the witness -- 21 MR. PETER ROSENTHAL: Yes. 22 COMMISSIONER SIDNEY LINDEN: So I assume 23 that he thought that he would testify whatever he was 24 telling -- 25 MR. PETER ROSENTHAL: And he might say


1 that. 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 MR. PETER ROSENTHAL: But -- but you 4 recall, we're on the abstract question, not whether it 5 happened or whether it should have happened, but we're on 6 the question of was it his obligation to put that 7 information before the Court. 8 And I believe he acknowledged that he had 9 this information; he did receive that information from 10 Mr. Carson and now my question that I was objected -- 11 that was objected to, and I would respectfully request 12 that I be allowed to ask, and this is the last one in 13 that series -- 14 COMMISSIONER SIDNEY LINDEN: All right, 15 then ask it, then. Let's move on. 16 MR. PETER ROSENTHAL: -- is -- 17 COMMISSIONER SIDNEY LINDEN: It's 18 whatever -- 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Was it, in your view, in retrospect, 22 and I'm not suggesting, sir, that even if it wasn't your 23 view within the obligation and you didn't do it, it 24 wasn't necessarily a terrible thing. 25 I -- I miss a lot of obligations, we all


1 make mistakes. 2 But I'm asking you now: Is it in your 3 view, within the obligation of fairly putting the 4 evidence in an ex parte injunction, that such an 5 indication as to the "buts" that Mr. Carson raised with 6 respect to the firing would have to be put before a 7 Justice if you're going to mention guns at all? 8 A: I just want to -- you know, if I'm 9 allowed to and if I'm requested to, I'll answer the 10 question. 11 I want to point out, though, that by way 12 of observation, I suppose, that if there is any liability 13 or culpability on this question, it's mine alone -- 14 Q: I'm sorry, sir, my -- 15 A: Just a moment please. Just a moment, 16 please. 17 Q: No, no, my hearing is not good. 18 Could you please move -- 19 COMMISSIONER SIDNEY LINDEN: That's -- 20 MR. PETER ROSENTHAL: Please move the 21 mike a little closer. I'm sorry, Mr. Commissioner. 22 COMMISSIONER SIDNEY LINDEN: But I don't 23 think that's the issue here, Mr. McCabe. That's not the 24 issue. 25 THE WITNESS: Well, I don't -- I didn't


1 understand it to be the issue when I came here. 2 COMMISSIONER SIDNEY LINDEN: No, it's not 3 the issue. 4 THE WITNESS: Now, the -- the liability 5 or the -- or the -- or the, you know, the culpability, 6 has nothing to do with the Government of Ontario, that 7 you're suggesting. It has nothing to do with the 8 Government of Ontario, it has nothing to do with the 9 Ontario Provincial Police, it has nothing to do with the 10 people in the Park and it has nothing to do with the 11 politicians. 12 It has a whole lot to do with me, and if 13 that's the case, as I said earlier, I should be lining up 14 for funding for Counsel before this -- before this 15 Inquiry. 16 COMMISSIONER SIDNEY LINDEN: And that's 17 what -- 18 MR. PETER ROSENTHAL: But you are 19 represented by Counsel -- 20 THE WITNESS: If this -- if this is going 21 to be the forum where that is going to be -- 22 COMMISSIONER SIDNEY LINDEN: That's 23 right. That's why we think it's -- 24 MS. KIM TWOHIG: No. 25 COMMISSIONER SIDNEY LINDEN: That's why


1 we think it's irrelevant, because the way you've asked 2 it, and the way you put it, you've put this witness on 3 trial. 4 MR. PETER ROSENTHAL: Sir -- 5 COMMISSIONER SIDNEY LINDEN: And that's 6 not what we're trying to do here. 7 MR. PETER ROSENTHAL: It's the third in a 8 series of questions. 9 COMMISSIONER SIDNEY LINDEN: Yes, yes. 10 MR. PETER ROSENTHAL: The other two (2) 11 he felt more comfortable answering, but this one he 12 doesn't but it's the same -- 13 COMMISSIONER SIDNEY LINDEN: Well, I -- 14 MR. PETER ROSENTHAL: -- kind of 15 question. 16 COMMISSIONER SIDNEY LINDEN: Again, I'm 17 not sure. I haven't looked at the whole transcript 18 recently to see where, if at all, this information was 19 put before the Court. 20 MR. PETER ROSENTHAL: No, I'm not asking 21 that question, sir. 22 COMMISSIONER SIDNEY LINDEN: No, but the 23 way you're asking it suggests -- the way you're asking it 24 suggests that the witness has somehow or other not 25 fulfilled a responsibility.


1 That's -- that's -- 2 MR. PETER ROSENTHAL: Not necessarily. 3 COMMISSIONER SIDNEY LINDEN: But that's 4 the tone and that's the manner. 5 MR. PETER ROSENTHAL: But with great 6 respect -- 7 COMMISSIONER SIDNEY LINDEN: And that's 8 the suggestion. 9 MR. PETER ROSENTHAL: -- I'll change the 10 tone, if I may, but I would like an answer to the 11 question -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. PETER ROSENTHAL: -- which I was 14 allowed to this form of question. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. PETER ROSENTHAL: Was it within, in 17 his view, within his obligation under that rule -- 18 COMMISSIONER SIDNEY LINDEN: Yes, but 19 you're asking him -- 20 MR. PETER ROSENTHAL: -- with respect to 21 ex parte to put that in front of the Court if he knew it, 22 that's all. 23 COMMISSIONER SIDNEY LINDEN: I'm not sure 24 that that's -- 25 MS. KIM TWOHIG: No, well as --


1 COMMISSIONER SIDNEY LINDEN: -- worth 2 pursuing. 3 MS. KIM TWOHIG: Yes. 4 COMMISSIONER SIDNEY LINDEN: Is my 5 Counsel going to help me or are you going to let me twist 6 in the wind? 7 MR. DONALD WORME: Again, Mr. 8 Commissioner, just -- it just seems to me -- I understand 9 that there's a certain latitude that should be afforded 10 to counsel and certainly it -- it was afforded to counsel 11 on previous instances with other witnesses in the box. 12 I am, however, beginning to become 13 troubled by the issue with respect to relevance of this. 14 And if Mr. Rosenthal can make clear what the relevance of 15 this particular issue is and perhaps, you know, we can 16 come to some conclusion as to whether it's appropriate or 17 not. 18 At this particular point in time my 19 concern is with respect to the relevance of this. 20 COMMISSIONER SIDNEY LINDEN: Yes. You 21 see it's another example of where we started at one point 22 and then we end up in another point because we go too 23 far. And I'm not sure that's how these are -- well... 24 MR. PETER ROSENTHAL: With great respect, 25 Mr. Commissioner, the --


1 COMMISSIONER SIDNEY LINDEN: We've moved 2 off where we started and I'm not sure that we're in an 3 area that's relevant or helpful for this Inquiry; that's 4 the concern. 5 MR. PETER ROSENTHAL: With great respect, 6 Mr. Commissioner, we have in front of us the lawyer -- 7 COMMISSIONER SIDNEY LINDEN: Yes. But we 8 do have -- 9 MR. PETER ROSENTHAL: -- who had the 10 carriage of the injunction application. 11 COMMISSIONER SIDNEY LINDEN: But we have 12 a transcript. And I'm not -- I'm not -- 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: -- I'm not 15 finding this useful, Mr. Rosenthal, that's my concern. 16 We have a transcript and when the time comes I intend to 17 read it more fully than I am right now. 18 MR. PETER ROSENTHAL: Yes. 19 COMMISSIONER SIDNEY LINDEN: And I know 20 what was said in this conversation -- 21 MR. PETER ROSENTHAL: Yes. 22 COMMISSIONER SIDNEY LINDEN: -- what sort 23 of facts as you call them are -- and we'll see what's in 24 there and whether it's relevant to any findings that I 25 need to make, I don't know that. And so at this point in


1 time it doesn't seem relevant and it doesn't seem 2 helpful. And that's why I'm going to ask you to move on. 3 MR. PETER ROSENTHAL: With great respect, 4 Mr. Commissioner, this is my last question in this series 5 and he answered the other two (2) and I just want the 6 same answered to -- to -- as again to the other two (2). 7 COMMISSIONER SIDNEY LINDEN: Well I think 8 it's this question that's tipped the balance and moved us 9 off relevance into an area where it's no longer seeming 10 to be relevant or helpful. So I'm going to ask you to 11 move on. 12 MR. DONALD WORME: Thank you. I was just 13 going to point out, you've made a ruling and I -- 14 COMMISSIONER SIDNEY LINDEN: Yes, I think 15 so. 16 MR. DONALD WORME: -- would very much 17 tend to -- 18 COMMISSIONER SIDNEY LINDEN: And I think 19 we've got to move on. 20 MR. DONALD WORME: -- to abide by that. 21 COMMISSIONER SIDNEY LINDEN: Not relevant 22 or helpful. Yes. 23 MR. PETER ROSENTHAL: Thank you and I 24 shall, of course, respect your ruling, sir. 25 COMMISSIONER SIDNEY LINDEN: Thank you.


1 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: Now you thought it was very unlikely 3 that an ex parte injunction would be granted to you, we 4 have several documents indicating your opinion in that 5 respect, right? 6 A: Yes I was. 7 Q: But then there was quite an incident 8 that happened the night before, a man got killed. And 9 that put it on a whole different level. And you used the 10 fact of Dudley George's killing to get the injunction. 11 Is that correct? 12 OBJ MS. KIM TWOHIG: I absolutely object to 13 this. 14 COMMISSIONER SIDNEY LINDEN: Again I -- 15 yes, I'm -- 16 MR. PETER ROSENTHAL: Well, I should like 17 to point to parts of the transcript and ask him what he 18 was doing, sir. 19 MS. KIM TWOHIG: Mr. McCabe has testified 20 numerous times that he was acting on instructions and 21 doing the best he could in extremely difficult 22 circumstances -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MS. KIM TWOHIG: -- and for My Friend to 25 make that kind of suggestion, I submit is completely


1 improper. 2 COMMISSIONER SIDNEY LINDEN: I -- 3 MR. PETER ROSENTHAL: Well I should like 4 to look at the transcript and ask him why he referred to 5 certain things. 6 COMMISSIONER SIDNEY LINDEN: I'm sorry, 7 you're going to look at the transcript and ask him what? 8 MR. PETER ROSENTHAL: The transcript of 9 the proceedings in front of the injunction application on 10 September 7. 11 COMMISSIONER SIDNEY LINDEN: Well I'm not 12 sure I want to go there right now. 13 MR. PETER ROSENTHAL: Okay. Thank you. 14 COMMISSIONER SIDNEY LINDEN: It's now 15 five to 3:00. I'm going to ask for an afternoon break. 16 And I'm going to ask you how long you've got to go, 17 assuming that we're going to -- 18 MR. PETER ROSENTHAL: Assuming that I'm 19 not allowed to go in that area, I have two (2) other 20 areas that I would imagine would take about fifteen (15), 21 twenty (20) minutes total now, sir. 22 COMMISSIONER SIDNEY LINDEN: Well let's 23 take a short break and then we can -- 24 Yes, Mr. Millar...? 25 MR. DERRY MILLAR: I wonder before we do


1 I have nothing to -- if -- 2 COMMISSIONER SIDNEY LINDEN: You want to 3 confer with Ms. Kohsed Currie. 4 MR. DERRY MILLAR: Yeah, Ms. Kohsed 5 Currie is here and if we could perhaps just canvas the 6 balance of counsel. If Mr. Rosenthal is another twenty 7 (20) minutes, that will take us to twenty to -- 8 approximately twenty to 4:00. 9 Mr. Hinnegan has no questions on behalf of 10 Mr. Sulman or Mr. Beaubien. 11 Mr. George has about ten (10) minutes. 12 That would take us to about -- 13 COMMISSIONER SIDNEY LINDEN: And Mr. 14 Scullion...? 15 MR. DERRY MILLAR: -- ten to 4:00. 16 Mr. Scullion has about ten (10) minutes if 17 that. 18 COMMISSIONER SIDNEY LINDEN: And Mr. 19 Roy...? Mr. Roy...? 20 MR. DERRY MILLAR: And then Mr. Roy has 21 about an hour to an hour and a half. 22 COMMISSIONER SIDNEY LINDEN: Mr. Roy 23 promised not to go into the same areas that have already 24 been canvassed in great detail. 25 MR. JULIAN ROY: I -- I have but I regret


1 to say I'm still at -- I said I was going to be an hour 2 and a half. I'm still probably going to be an hour. 3 There are -- there are a number of areas -- 4 COMMISSIONER SIDNEY LINDEN: Without 5 going into any areas that have already been canvassed in 6 great detail. 7 MR. JULIAN ROY: Yes. Yes. 8 COMMISSIONER SIDNEY LINDEN: That would 9 surprise me, but anyway, that's what we've got. 10 MR. JULIAN ROY: I'm looking at my notes 11 and I'm trying to be candid with you I mean -- 12 COMMISSIONER SIDNEY LINDEN: No, that's 13 fine. So what you're saying is that that we're not going 14 to reach Ms. Kohsed Currie this afternoon. 15 Is that right, Mr. Millar...? 16 MR. DERRY MILLAR: Yeah. I think that if 17 My Friend, Mr. Roy's an hour that we're up to close to 18 five o'clock and -- 19 COMMISSIONER SIDNEY LINDEN: Well we have 20 to finish the witness because -- 21 MR. DERRY MILLAR: We'll have to finish 22 this. No, no, I agree with -- 23 COMMISSIONER SIDNEY LINDEN: -- he's -- 24 MR. DERRY MILLAR: -- finish this witness 25 but it seems to me that we're not going to get started


1 with Ms. Kohsed-Currie. 2 COMMISSIONER SIDNEY LINDEN: Well, that's 3 what I said, I think you can release Ms. Kohsed-Currie. 4 MR. DERRY MILLAR: And so I'd like to 5 release her. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 We'll take a short break. Let's take a ten (10) minute 8 break. 9 THE REGISTRAR: This Inquiry will recess 10 for ten (10) minutes. 11 12 --- Upon recessing at 2:56 p.m. 13 --- Upon resuming at 3:08 p.m. 14 15 THE REGISTRAR: This Inquiry has now 16 resumed. Please be seated. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 Yes, Mr. Rosenthal...? 19 MR. PETER ROSENTHAL: Thank you, Mr. 20 Commissioner. 21 COMMISSIONER SIDNEY LINDEN: You've got a 22 couple areas you have to cover? 23 MR. PETER ROSENTHAL: I do. And shall be 24 as expeditious as possible. 25 COMMISSIONER SIDNEY LINDEN: Thank you.


1 CONTINUED BY MR. PETER ROSENTHAL: 2 Q: Now, sir, if you could please turn to 3 Tab 48 of your materials, which has a -- possibly the 4 statement that you read to the court when the injunction 5 motion was withdrawn on September 11. 6 And then I also have a copy -- I'm not 7 sure where you may have copies of it but I have a copy -- 8 if I can ask the Registrar for -- to give both the 9 Commissioner and the witness a copy -- 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: -- of the other statement, the other 14 possible statement before the court, and I -- if I 15 understand correctly what you told us yesterday, you told 16 us that you drafted one (1) of these and then spoke to 17 Larry Taman about it and he made some suggestions, and 18 that resulted in the other draft; is that correct? 19 A: No. 20 Q: No. 21 A: No. That's not -- 22 Q: Perhaps I misunderstood. 23 A: No. That's -- what I recall is after 24 receiving the instruction on the Sunday afternoon that 25 the motion was to be withdrawn and the reasons for it, I


1 drafted a statement. I probably phoned Mr. Taman back, 2 he made some minor adjustments to that statement or 3 suggest -- made some -- some minor suggestions with 4 respect -- 5 Q: Sorry. Could I ask you if you'd pull 6 the microphone a little closer, please, sir. 7 A: All right. 8 Q: Go ahead. 9 A: I'm sorry. What -- what I recall is 10 on the Sunday afternoon receiving instructions that the 11 motion was to be withdrawn and I suppose a -- a statement 12 or a -- the cycle of the reasons why that was to be done. 13 I then -- and -- and I suppose the request to prepare a 14 statement to be read in court the next day. In any 15 event, I undertook to do that. 16 I produced -- I -- I wrote out a 17 statement. I called Mr. Taman back, I believe. He made 18 some minor adjustments to that statement, which I 19 included in the version that I had, and I took that off 20 to Sarnia the next day to be read to the court. 21 Q: Yes. 22 A: Now, these two (2) documents, I can't 23 tell you what the provenance is of these two (2) 24 documents. You know, why -- which one was the actual one 25 that was read out in court, why one is slightly different


1 than the other. 2 Q: I see. 3 A: And -- and I, you know -- 4 Q: So you -- yes. And you don't know 5 which of these was read in court. By the way, I may be 6 wrong but I don't believe that the one at Tab 48 was made 7 an exhibit. If not, I would suggest it should be. 8 COMMISSIONER SIDNEY LINDEN: I think it 9 was. 10 MR. PETER ROSENTHAL: Or was it? 11 THE REGISTRAR: P-743. 12 MR. DERRY MILLAR: No. 13 COMMISSIONER SIDNEY LINDEN: No. 756. 14 MR. DERRY MILLAR: 756. 15 MR. PETER ROSENTHAL: P-756. Thank you. 16 Sorry. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 MR. PETER ROSENTHAL: And the other one 19 is P-743. 20 COMMISSIONER SIDNEY LINDEN: Yes. 21 22 CONTINUED BY MR. PETER ROSENTHAL: 23 Q: And so you don't know which one of 24 them you read but you would have read one or the other of 25 these in court?


1 A: I -- I expect so, yes. 2 Q: And there were no transcripts ever 3 ordered of that September 11th proceeding, as far as you 4 recall? 5 A: I don't recall, no. 6 Q: Because that would presumably 7 determine which you had read obviously, but you don't 8 recall ordering a transcript? 9 A: Right. 10 Q: Now, the one that's P-743, again, is: 11 "Your Honour, the Ontario Provincial 12 Police has advised that it does not 13 wish this matter to proceed and has 14 asked that the motion before you this 15 morning be withdrawn." 16 And then -- and the other one, P-756, says 17 that the Plaintiffs do not wish the matter to proceed; 18 right? 19 A: Yes. 20 Q: Now, you were never a counsel to the 21 Ontario Provincial Police; is that correct? 22 A: That's correct. 23 24 (BRIEF PAUSE) 25


1 Q: So, the -- the one says the 2 plaintiffs don't want it to perceive -- proceed after 3 receiving the advice of the police and the other says the 4 police don't want it to proceed. 5 Now, reading these over now, I appreciate 6 it's ten (10) years later, can you recollect anything of 7 what Mr. Taman told you at first? 8 A: I can't recollect authoritatively 9 what it was that that issue was. It may well be this 10 business about the Ontario Provincial Police has advised 11 and perhaps Mr. Taman pointed out to me that -- well, 12 there's a certain, you know -- that doesn't seem to be 13 appropriate in these circumstances since the plaintiffs 14 are not the Ontario Provincial Police. 15 Q: I see. 16 A: It's possible that that's indeed the 17 change that -- that he made. 18 Q: I see. 19 A: Yes. 20 Q: So -- so, it's possible that you 21 started with P-743, which says the Ontario Provincial 22 Police advised it doesn't wish it to proceed, and Mr. 23 Taman suggested to you it would be more appropriate to 24 say, The plaintiffs don't want it to proceed, although on 25 the advice of the OPP?


1 A: It is possible, yes. 2 Q: Now, was it not the case that at that 3 time or at some time shortly thereafter, you learned that 4 the Ontario Provincial Police were concerned about 5 proceeding with an injunction application because of the 6 possibility that the events of September 6/7 would be 7 looked in by the court that heard that proceeding? 8 A: No. I don't think -- think it's 9 right to say that I was made aware of -- of that 10 circumstance. 11 Q: Or were you told a reason that the 12 Ontario Provincial Police did not want -- 13 A: No. 14 Q: -- it to be proceeded with? 15 A: No. 16 Q: And you didn't ask? 17 A: No. 18 Q: Now, in both of these documents you 19 mentioned the fact that the funeral of Dudley George was 20 to take place on this occasion, and suggest that that -- 21 in both cases it suggested that that affected the 22 decision. 23 Would it -- it seems the natural thing to 24 do in that circumstance would be to adjourn it to another 25 date rather than withdraw it if it was out of respect for


1 the funeral? 2 OBJ MS. KIM TWOHIG: I object to this in that 3 Mr. McCabe has testified that he was instructed on Sunday 4 afternoon to proceed in this manner, and that's exactly 5 what he did. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. KIM TWOHIG: I would also add that My 8 Friend has had both versions of this statement for many 9 months and if anything had actually turned on them, he 10 could have requested a transcript from the court, if 11 there is a transcript available. 12 COMMISSIONER SIDNEY LINDEN: I was going 13 to ask if anything turns on this. I know you're asking 14 these questions -- 15 MR. PETER ROSENTHAL: I'm sorry, Mr. 16 Commissioner, I can't -- 17 COMMISSIONER SIDNEY LINDEN: I was going 18 to ask if anything turns on these questions, I can't see 19 it but then I'm not sure. I'm never sure, so if I -- 20 MR. PETER ROSENTHAL: This is not going 21 to make or break my final submissions to you, sir, but -- 22 COMMISSIONER SIDNEY LINDEN: Well, then-- 23 MR. PETER ROSENTHAL: -- it is 24 appropriate to try to find out what we can about this 25 matter and what --


1 COMMISSIONER SIDNEY LINDEN: He said he 2 didn't know much about it. But, yes, I -- 3 MR. PETER ROSENTHAL: Yes. No. And I'm 4 just trying to find out what information we can about it. 5 Sorry, I forget if I had asked the 6 question that was not answered and was objected to or 7 not. 8 COMMISSIONER SIDNEY LINDEN: No. I -- 9 MR. PETER ROSENTHAL: I -- I was trying 10 to -- I guess I was trying to explore the question of the 11 only reason suggested, as I read either of these 12 statements, for withdrawal is the fact that the funeral 13 was to take place that day -- 14 COMMISSIONER SIDNEY LINDEN: No. 15 MR. PETER ROSENTHAL: -- and I would 16 suggest -- 17 COMMISSIONER SIDNEY LINDEN: No. That's 18 not the way it's reading. 19 MS. ANDREA TUCK-JACKSON: I say with 20 great respect, Mr. Commissioner, the document does 21 speak -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MS. ANDREA TUCK-JACKSON: -- for itself 24 and it mentions a number of factors -- 25 COMMISSIONER SIDNEY LINDEN: Yes.


1 MS. ANDREA TUCK-JACKSON: -- including 2 that the police were recommending against the 3 continuation of the motion because they did not want to - 4 - to have anything further inflame the situation. 5 COMMISSIONER SIDNEY LINDEN: Yes. 6 MR. PETER ROSENTHAL: Yes. But -- but, 7 then I was -- I was exploring with this Witness, and I 8 don't think there was an objection to that form of the 9 question -- 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MR. PETER ROSENTHAL: -- as to why -- 12 that would seem to suggest the withdrawal as an 13 adjournment rather than a withdrawal and I was -- 14 COMMISSIONER SIDNEY LINDEN: Well -- 15 MR. PETER ROSENTHAL: -- wanting to know 16 if he had any other information about that. That's all. 17 MS. KIM TWOHIG: That -- that has been 18 asked and answered several times. 19 COMMISSIONER SIDNEY LINDEN: I think so. 20 We're getting a little tighter, Mr. Rosenthal, as you can 21 tell. 22 MR. PETER ROSENTHAL: Yes. 23 COMMISSIONER SIDNEY LINDEN: But, I mean, 24 if the questions are relevant and helpful, we want to let 25 you ask them. If they're not, then we want you to move


1 on. 2 MR. PETER ROSENTHAL: And that's exactly 3 what I want to do, sir. 4 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 5 Millar? 6 MR. DERRY MILLAR: Let me just make a 7 point here. This injunction which had -- his operation 8 had been suspended, expired at twelve o'clock on Monday, 9 September 11th. 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DERRY MILLAR: It would not have 12 been, in my respectful submission, appropriate for -- for 13 that to be adjourned to a different date. 14 COMMISSIONER SIDNEY LINDEN: Right. It 15 was a -- 16 MR. PETER ROSENTHAL: Well -- 17 COMMISSIONER SIDNEY LINDEN: Okay, I 18 don't want to get into this -- 19 MR. PETER ROSENTHAL: But -- but -- 20 COMMISSIONER SIDNEY LINDEN: -- unless 21 it's relevant and helpful and I don't think it's either 22 at this point. 23 You got the statement; we know it was 24 withdrawn. 25 MR. PETER ROSENTHAL: Yes.


1 COMMISSIONER SIDNEY LINDEN: We know it 2 was done on instructions, received instructions and he 3 did what he was asked to do. 4 MR. PETER ROSENTHAL: Yes. With respect, 5 Mr. Commissioner, your Counsel's answer is an answer you 6 might have expected from the Witness. 7 COMMISSIONER SIDNEY LINDEN: Well -- 8 MR. PETER ROSENTHAL: It's not an 9 objection to the question; it's -- it's an appropriate 10 answer to the question, perhaps. 11 In any -- in any event -- 12 COMMISSIONER SIDNEY LINDEN: I -- 13 MR. PETER ROSENTHAL: I will end on that 14 sour note. Thank you, Mr. Commissioner. 15 COMMISSIONER SIDNEY LINDEN: It's not a 16 sour note and I know that you are trying and we're all 17 trying, but we just have to keep moving. 18 Are you finished, Mr. Rosenthal, with your 19 examination? 20 MR. PETER ROSENTHAL: Thank you. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 Mr. Scullion...? 23 24 (BRIEF PAUSE) 25


1 COMMISSIONER SIDNEY LINDEN: Yes, sir? 2 MR. KEVIN SCULLION: Good afternoon, Mr. 3 Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Good 5 afternoon. 6 MR. KEVIN SCULLION: It's a tough lead 7 into my questions, but I can advise that I estimated half 8 an hour for you. Mr. Millar had truncated that to ten 9 (10) minutes. I'll be somewhere in between. 10 COMMISSIONER SIDNEY LINDEN: That's fine. 11 MR. DERRY MILLAR: Wishful thinking. 12 MR. KEVIN SCULLION: I will try to be 13 somewhere in between. 14 15 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 16 Q: Good afternoon. My name's Kevin 17 Scullion, I'm one of Counsel for the residents of 18 Aazhoodena, also known as Stoney Point Group, which you 19 may be familiar with. 20 A: Mr. Scullion. 21 Q: And I -- I'd like to step back a 22 little bit. You've been asked a lot of questions about 23 what you did along the way and a lot of -- about what you 24 prepared for this Motion on the 7th. 25 And my clients look at this more as a


1 failure in the system, and so we'd like to step back and 2 just see what was going on in the background; what was -- 3 what decisions were being made and what part you played 4 in those decisions or didn't play in it. 5 And it seemed to me, when I was hearing 6 from you with your evidence, by September of 1995, you'd 7 been a Crown Counsel for almost twenty-two (22) years and 8 you'd specialised in Aboriginal matters. 9 And it seemed to me that you were a pretty 10 good resource available for the Government in dealing 11 with this matter; is that fair? 12 A: Well, yes, but, you know, purely as a 13 matter of longevity; if that was the case. 14 Q: All right. And I see from the 15 documents that you were involved at times with various 16 incidents that occurred between 1993 and 1995. 17 And my impression from your evidence and 18 from the documents was, you got called in whenever there 19 were legal questions relating to the occupation that was 20 occurring on the Army Camp lands, or questions relating 21 to the provincial response to that occupation; is that 22 fair? 23 A: I think that's a little misleading to 24 say that I was called in, in relation to the occupation 25 of the Army Camp lands.


1 It's probably true that I was circulated 2 with -- with copies of minutes of meetings and so forth 3 and I, apparently attended, you know, at least some of 4 them. 5 Q: Okay. 6 A: But, you know, as I recall, I didn't 7 actually do anything. 8 Q: All right. You were a resource 9 available, you don't recall whether or not you were 10 utilized in the course of those '93 to '95 years? 11 A: Yes, and then, you know, and I'm -- 12 I'm almost certain that if I was utilized it wasn't to 13 any great extent or effect. 14 Q: All right. I just take that as a bit 15 of a background, because we've heard from witnesses that 16 you were asked to take part in the September 6th meeting 17 to explain the various aspects, the legal aspects, to 18 proceeding with removing the occupiers or options to 19 remove to the occupiers from the Camp. 20 Is that fair? 21 A: Yeah, that's probably correct. 22 Again, I don't have, you know, specific recollection of 23 anybody explaining to me why I was to be there that day. 24 I probably assumed it was something of 25 that kind, yes.


1 Q: Okay. And we've seen in the 2 background a memo that you prepared that outlined the 3 various ways of proceeding with an injunction and Mr. 4 Rosenthal took you through your recommendation that said 5 ex parte wasn't the way to go in this case. 6 A: Yes. 7 Q: Now, it would appear to me that from 8 your meeting with Larry Taman in the morning and from 9 your appearance at the Interministerial Committee, that 10 your advice as a senior counsel with the Province was 11 don't go ex parte go with some notice but try to abridge 12 it if possible. 13 A: Yes. 14 Q: Okay. And it's at some point that 15 decision was changed after you left the Interministerial 16 Committee. And you were advised of that, from what I 17 understand from you, from Ms. Christie. 18 A: Yeah, that appears to be the case, 19 yes. 20 Q: Okay. And I didn't hear from you 21 whether or not you took any steps after being advised by 22 Ms. Christie of this change in course, to talk about that 23 change with Mr. Taman or with Mr. Harnick or anybody else 24 that could have given you those instructions. 25 A: I'm quite sure I didn't.


1 Q: You're quite sure that you did not? 2 A: Yes. 3 Q: And why did you not go back to the 4 source of those instructions to see why they changed from 5 your advice? 6 A: You know, at that stage I think on 7 that afternoon, I had plenty to do as it was and, you 8 know, I think from the outset I -- I recognized that if 9 the Government wanted to follow that particular course of 10 action, you know, it was -- it was entirely open for the 11 Government to do so. 12 And you know it -- I'm sure that in the 13 course of the -- or I would surmise that in the course of 14 the Interministerial meeting in the afternoon and also in 15 my conversation with Mr. Taman in the morning, you know, 16 I probably put the -- put the case at that time and -- 17 and you know awaited further events. 18 Q: Well, the decision -- I think Mr. 19 Klippenstein took you through it, the decision was made 20 before you had a chance to talk with the officers and to 21 determine what type of evidence you're going to have 22 available for you the next day. 23 A: Yes. 24 Q: Correct? 25 A: Yes.


1 Q: Now, it just seemed to me and you 2 could -- and I'm looking for your advice and comment on 3 it that, this made your job the next day a lot more 4 difficult and if you'd been able to give some notice and 5 appear on Friday before a judge; is that fair? 6 A: Well, you know, it -- it added -- it 7 certainly added a complication. It added this issue 8 that, you know, we may well have an adjournment for 9 service. 10 Q: Right. 11 A: So, it certainly added that 12 complication. It -- it, you know, it created a -- a 13 possible impediment to a -- to a successful motion. But 14 to say my job was therefore more difficult, you know, may 15 be a little misleading. 16 Essentially the task remains the same, 17 right. I mean I think even if we had proceeded on 18 notice, it would have been my intention to serve an 19 affidavit at the Ministry of Natural Resources dealing 20 with the matters that I explained earlier and call viva 21 voce evidence from the Ontario Provincial Police officer. 22 So, regardless of when we proceeded 23 whether that's Thursday or Friday, the -- you know, that 24 essential nub of the matter, as far as I was concerned 25 and what -- what I needed to do, would have remained the


1 same. 2 Q: My suggestion was that proceeding 3 without notice made your job more difficult. Are you 4 saying that that wasn't the case? 5 A: Well, not in terms of what I had to 6 do but it, you know, it complicated matters and increased 7 the possibility in my view that there would be, you know, 8 a -- a negative result from the point of view of my 9 client. 10 Q: Right. It moved you from what you 11 had described as a possible result or a likely result of 12 an interim injunction that would be taken over and notice 13 provided to a more difficult situation of an ex parte 14 injunction where it could have been dismissed or it could 15 have been put off or -- or adjourned for you to give 16 notice. 17 A: Yes. 18 Q: All right. But, I still take it you 19 didn't see that as an appropriate concern to go back and 20 talk with the powers that be, as you will, for putting 21 you in that position? 22 A: Well apparently I didn't. 23 Q: I agree that you didn't but I'm -- 24 A: Because I, you know, because I didn't 25 do it.


1 Q: Right. 2 A: And, you know, again in my, you know, 3 putting together that this remove the events of that day 4 seems to me it's likely because I -- I would have -- I 5 would have taken the position that, you know, I -- I've 6 expressed my view to the -- to the -- to my superior, the 7 Deputy Minister, that morning and to the group of civil 8 servants and others in the afternoon. 9 When told we were going to proceed in 10 another way, I think I essentially would have shrugged 11 and got on with it. 12 Q: Right. That was my impression, that 13 would probably be your -- your reaction but I hadn't 14 heard it from you. 15 A: Hmm hmm. 16 Q: You took your instructions and you 17 proceeded to court the next day. 18 A: Yes. 19 Q: Do I take it, and I just, from a 20 general sense, you arrived in court with an affidavit 21 presumably to justify the injunction that was being 22 sought, which was the Ministry of Natural Resources 23 outlining title and the damages to property? 24 A: And the fact that the MNR had been 25 excluded and the public was excluded.


1 Q: Right. 2 A: When you say that justifying the 3 injunction, it's a -- an, you know, an element in -- 4 Q: A position. 5 A: -- that justification. 6 Q: Right. 7 A: It's part of the justification. The 8 other part of it being the viva voce testimony. 9 Q: Right. And the viva voce testimony I 10 suggest to you is more to the effect of justifying the ex 11 parte approach to explain why there's an urgency that may 12 not have existed if you went with notice? 13 A: No, I believe that the -- the 14 evidence of the police officer would have been, I mean, 15 we're dealing here with conjecture because on the Friday, 16 of course, the event of the -- of the Wednesday evening 17 would not have occurred. 18 But, even had I been proceeding on the 19 Friday and seeking, after having served the paper on the 20 Thursday, which was my original vision for the matter, I 21 think the OPP officer's evidence would have been of the 22 same kind, you know, and to the same effect. 23 It would have given the judge a sort of 24 up-to-the-minute, if possible, summary or -- or account, 25 chronology, narrative as to what had happened from the


1 Monday night until the -- until the Friday morning. 2 Q: Okay. And I saw, from the 3 transcript, and I know we haven't got into that 4 extensively -- the transcript from the proceedings, but I 5 focussed on your submissions that took place after the 6 break before Justice Daudlin, and if I could turn you to 7 those submissions, it's your Tab 36, and it's page 39 of 8 the transcript where your submissions begin. 9 A: Yes. 10 Q: And I see that you started your 11 submissions where you indicated, in your submission, the 12 granting of the injunction would assist to diffuse the 13 situation. 14 That was one (1) of the reasons why you 15 were proceeding in asking for that injunction; correct? 16 A: Yes. 17 Q: Okay. If I turn to the next page, at 18 the top of page 40, I see reference by you to the 19 protection of public property, facilities, life and limb; 20 much of a public safety submission. 21 Now, was that part of the reasons why you 22 brought the injunction as well, one (1) of the reasons 23 you were seeking it? 24 A: Yes. 25 Q: Okay. Then you go through -- and I'm


1 not going to walk you through word by word of your 2 submissions, nor am I going to touch the evidence of Mr. 3 -- of Sergeant Wright, who's going to testify, and we can 4 walk him through that. 5 But in the course of your submissions you 6 run into some hurdles put forward by Justice Daudlin. 7 And one (1) of the questions that he puts forward is: 8 What exactly are you seeking to do with the injunction? 9 And I'll say at the outset that the result 10 that you achieved that morning, which I think has been 11 identified by your Counsel as a very difficult set of 12 circumstances, was an interesting result. You seem to 13 get part of what you're looking for, which was the 14 declaration that, on its face, the occupation is illegal. 15 But you got the follow-up part which said, No enforcement 16 until we get a chance to get everybody back in court. 17 A: Yes. 18 Q: Now, was that intentional or was that 19 an indirect result of the exchange that occurred with 20 Justice Daudlin? 21 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 22 Twohig...? 23 MS. KIM TWOHIG: Sorry, it sounds to me 24 as though Mr. McCabe is being asked to guess why Justice 25 Daudlin made the order he did.


1 COMMISSIONER SIDNEY LINDEN: Well, you 2 can ask him what his submission was but you don't know 3 why Justice Daudlin did what he did. 4 MR. KEVIN SCULLION: I thought my words 5 were "intention," Mr. McCabe's intention. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. KEVIN SCULLION: And whether or not 8 that was one (1) of his intentions. I am staying away 9 from -- 10 COMMISSIONER SIDNEY LINDEN: No. That's 11 fine. 12 MR. KEVIN SCULLION: -- the guesses and 13 trying to read people's minds, but -- 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. KEVIN SCULLION: -- I'm wondering if 16 that was one (1) of his intentions -- when you're making 17 your submissions -- 18 COMMISSIONER SIDNEY LINDEN: One (1) of 19 his intentions -- 20 MR. KEVIN SCULLION: One (1) of -- 21 COMMISSIONER SIDNEY LINDEN: -- Justice 22 Daudlin? 23 MR. KEVIN SCULLION: -- Mr. McCabe's 24 submission -- 25 COMMISSIONER SIDNEY LINDEN: Okay.


1 That's fine. 2 MR. KEVIN SCULLION: -- intentions at the 3 time. And I say that because -- and my lead-in was you 4 were running into some hurdles, you were running into 5 some objections, and the possibility this was going to be 6 dismissed or adjourned for notice to occur. 7 THE WITNESS: Yes. 8 9 CONTINUED BY MR. KEVIN SCULLION: 10 Q: Both of which you'd predicted the day 11 before? 12 A: Yes. 13 Q: It seems that you were able to 14 achieve, through some persuasive advocacy, a middle 15 ground that addressed both of what you were looking for? 16 Is that fair? 17 A: Well, I -- I think I was seeking an 18 Order which would have effect from the time it was 19 granted. I certainly wasn't seeking, as I recall, the 20 aspect of it that suspended the enforcement of the Order 21 until the Monday. 22 I haven't reviewed this in the last little 23 while as closely as I should have, this -- this 24 transcript, but as I recall, it's the Judge's problem 25 that he sees with respect to what is going to be done


1 with this injunction that leads me to make submissions to 2 the effect that it's important that there be a judicial 3 disapproval of the activities and the way to do that is 4 by granting the injunction. 5 So, as I recall, His Honour takes that 6 into account but he also takes into account his 7 reservation about exacerbating this very difficult 8 situation on the ground, in the Park, by granting an ex 9 parte motion at this point. 10 And so he -- you know, he -- he sort of, 11 you know, squares that circle or whatever the appropriate 12 expression is by suspending enforcement of the order 13 until the Monday but -- and, you know, inviting the -- 14 setting in train a course of events which will have the 15 parties in Court on Monday to argue the point, but at the 16 same time, you know, issuing the injunction subject to 17 this stay. 18 Q: Right. It has the potential to 19 diffuse the situation which is what you were looking for. 20 A: Yes. 21 Q: While maintaining public safety, 22 which is what you were looking for. 23 A: Yes. 24 Q: You offered up the suggestion that, 25 perhaps, it be left in the discretion of this Government


1 as to how to enforce? 2 A: Right. 3 Q: And Justice Daudlin took it a step 4 further and said, It's not going to be in their 5 discretion, we're going to not enforce it 'til we return. 6 A: I think that's right, yes. 7 Q: Okay. So the end result seemed to 8 meet with your objectives and there's some out there that 9 might say that the end result forwarded the political 10 objectives of getting these people out within a day or 11 two (2). 12 A: Well, you know, that's a -- that's a 13 very attractive suggestion you're making. I must say 14 that I left Court that day with the -- with the decided 15 impression that I hadn't achieved my objectives entirely. 16 Q: I saw that, too, but I also didn't 17 see an objection by you when the judgment was set down 18 orally -- 19 A: Right. 20 Q: -- that said no enforcement until we 21 return. 22 A: I think I couldn't get my mind around 23 the -- the aircraft drop at that point. 24 Q: All right. I'm -- I'm being more 25 generous in, I think, suggesting to you that you


1 understood exactly what he was saying and that it agreed 2 with your objectives as elicited by the IMC and as 3 advocated by you in the days previous. 4 Maybe I'll save that for argument. 5 COMMISSIONER SIDNEY LINDEN: I think so. 6 7 CONTINUED BY MR. KEVIN SCULLION: 8 Q: There's one more area of question 9 that Mr. Rosenthal touched upon and that was the 10 withdrawal -- 11 A: Yes. 12 Q: -- of the Motion. 13 A: Right. 14 Q: And again, you're front and centre to 15 explain to the Court that you're withdrawing this and I 16 understand your evidence that you drafted up something 17 the day before and spoke with Larry Taman about it. 18 A: That's my recollection, yes. 19 Q: Fair enough. Well, if I can take you 20 to the wording which I understand, and I was a little 21 confused on exactly what the exhibits were, but it seems 22 to be P-756, Tab 48 in your book, the second page. 23 Hopefully, I've got the exhibits right. 24 COMMISSIONER SIDNEY LINDEN: Yes. 25


1 (BRIEF PAUSE) 2 3 CONTINUED BY MR. KEVIN SCULLION: 4 Q: And it seemed to me that the approach 5 being taken is consistent with the fourth line which is: 6 "The withdrawal is made out of 7 deference to the tradition which is the 8 tradition -- the Aboriginal tradition 9 of mourning following a funeral and the 10 desire to avoid any possible 11 inflammation of the situation at the 12 Provincial Park and to ensure public 13 safety." 14 Do you see that line? 15 A: Yes. 16 Q: Seems to be consistent with the 17 reasons why you were in Court to get the injunction in 18 the first place. 19 A: Yes. 20 Q: My last question. How did you feel 21 when you saw that explanation for now withdrawing the 22 injunction? Did it strike you as a little ironic it was 23 the same reason you went into the court to get it? 24 A: I -- I don't recall, you know, 25 appreciating the irony. I -- I think I was -- when I --


1 when I learned this on the Sunday afternoon, I was 2 probably quite relieved and that this would, you know, 3 and I was glad I was going to be attending the next day 4 to withdraw the motion. 5 Q: It was sense of relief for you? 6 A: Yes. And it's -- I -- I think at 7 that point I'm probably talking about personal relief 8 more than anything else. 9 Q: Okay. It wasn't clear where you got 10 where you got your directions from to withdraw the 11 motion. 12 But in the course of receiving those 13 directions, do you recall ever being told that one of the 14 considerations to -- to discontinue or withdraw the 15 motion was that you didn't want to provide a judicial 16 forum for arguing the land claim? 17 A: No. 18 Q: Did you ever turn your mind to that 19 issue when you were preparing the injunction materials 20 that it could turn into such a forum? 21 A: No. Absolutely not. I mean, as I 22 was preparing the injunction materials, you know, the 23 event of the Wednesday night was not foreseen. 24 Q: Okay. Those are all my questions, 25 Mr. Commissioner.


1 COMMISSIONER SIDNEY LINDEN: Thank you, 2 Mr. Scullion. 3 Mr. George...? 4 MR. JONATHON GEORGE: Good afternoon, 5 Commissioner. 6 COMMISSIONER SIDNEY LINDEN: Good 7 afternoon. 8 9 CROSS-EXAMINATION BY MR. JONATHON GEORGE: 10 Q: Good afternoon, Mr. McCabe. My name 11 is Jonathon George and I represent the Kettle and Stony 12 Point First Nation. 13 A: Mr. George. 14 Q: And for the balance of this week I'm 15 appearing for Mr. Horton who represents the Chiefs of 16 Ontario as well. I'll be brief. There's only one area I 17 wish to cover with you and it's an area I canvassed with 18 Dr. Christie when she was here two (2) days ago. 19 Now when Elizabeth Christie testified, she 20 indicated that during the IMC meeting she attended, 21 including the one on September 6th which you were at 22 attendance. 23 A: Yes. 24 Q: She indicated that during that 25 meeting, in particular, the position of Chief Bressette


1 and the recognized First Nation was discussed vis a vis 2 the occupation of the Park. 3 Now do you recall that being discussed at 4 the meeting you were in attendance? 5 A: The -- again the -- what I recall and 6 what I have read in terms of minutes and so forth -- 7 Q: Okay. 8 A: -- that's a -- that's a line that's - 9 - it's not very clear to me which is which but, again, 10 you know, the -- you know, the standard point that I -- I 11 don't dispute anything in the -- in the notes. 12 Q: Okay. So since then you've reviewed 13 the minutes and you have reason to dispute -- 14 A: Yes. 15 Q: -- the testimony of Elizabeth 16 Christie? 17 A: Yes, that's right. 18 Q: Okay. And Elizabeth Christie further 19 testified that you and her discussed the issue of Chief 20 Bressette's position generally, privately, which I took 21 to mean outside the confines of the meeting. 22 Now do you have a recollection of that? 23 A: Not very clearly but, you know, we -- 24 I'm sure it would have occurred to one or both of us, 25 yes.


1 Q: Okay. 2 A: And the fact that we had a discussion 3 about it I -- it doesn't surprise a bit. 4 Q: I am leading somewhere other than 5 just you're detailing Ms. Christie's testimony to you. 6 But separate and apart from the discussions of the Chief 7 and the Band's position generally, do you recall 8 discussing the issue or perhaps better put, the 9 possibility of having Tom Bressette provide an affidavit 10 for use on the injunction? 11 Do you recall that? 12 A: Well I -- I'm sure that that occurred 13 to me as a -- as a wonderful thing to have if -- if that 14 were available. 15 Q: Okay. So you don't recall 16 specifically discussing that with Ms. Christie or hearing 17 about that in the meeting. It simply occurs to you today 18 that that's probably something you would have turned your 19 mind to? I just want to understand your -- 20 A: Right. You know, I see in the notes 21 that it --the meeting I was at that actually was 22 discussed. So, you know, I'm sure that's the case, yes. 23 Q: Okay. And Elizabeth Christie further 24 testified that at that September 6th meeting, Deb Hutton 25 made two (2) comments in particular, and I'll read those


1 comments to you first. 2 In -- I took it from Ms. Christie's 3 testimony that this was in the context of discussions 4 about communication with Chief Bressette and discussion 5 about whether or not his affidavit could or would be 6 used. 7 The first comment she attributes to her 8 is: 9 "The Premier is firm, at no time should 10 others be involved in conversation than 11 OPP and MNR, including the Chief and 12 the Band." 13 And the second -- 14 COMMISSIONER SIDNEY LINDEN: Excuse me. 15 Where does that comment come from? 16 MR. JONATHON GEORGE: That comment comes 17 from, Commissioner, I have it in the notes of Elizabeth 18 Christie. 19 COMMISSIONER SIDNEY LINDEN: Okay. 20 That's fine. 21 MR. JONATHON GEORGE: Perhaps My Friend 22 can help me out. I'm sure they were made an exhibit. 23 COMMISSIONER SIDNEY LINDEN: You don't 24 have to give me the exact, but it's from the notes of 25 Elizabeth Christie --


1 MR. JONATHON GEORGE: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- just so 3 the witness knows -- 4 MR. JONATHON GEORGE: Yes. 5 COMMISSIONER SIDNEY LINDEN: Okay. 6 MR. JONATHON GEORGE: Handwritten notes 7 of Elizabeth Christie. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 And the other comment? 10 11 CONTINUED BY MR. JONATHON GEORGE: 12 Q: And that was the first comment, Mr. 13 McCabe. The second one was, as -- as Dr. Christie's 14 testimony went and as was recorded in her handwritten 15 notes, that -- and if I'm in error, I'm sure someone will 16 rise to correct me -- that in response to a question on 17 your part, the question being, The Chief, is he willing 18 to assist, Deb Hutton made the following comment, that: 19 "The Premier's office doesn't want to 20 be seen to be working with Indians at 21 all." 22 Now, do you recall either of those 23 statements being made or an exchange to that effect? 24 A: I don't think I -- I recall an 25 exchange to that effect. I note that we never did take


1 any steps to enlist the assistance of -- of Chief 2 Bressette. 3 Q: Hmm hmm. 4 A: And it seems a very reasonable 5 surmise the reason for not doing that is because we were 6 told, no, the Premier or somebody doesn't want us to do 7 that. 8 Q: Okay. And -- and that actually leads 9 me nicely to my next point because Dr. Christie, 10 subsequent to that, indicated that, prior to those 11 comments being made, it was a topic of discussion but 12 after that comment -- after those comments were made it 13 ceased to be a topic of discussion. 14 And I think that's what you simply -- 15 A: Yes. 16 Q: -- that that's -- you either recall 17 that or you assume that's what happened? 18 A: The latter. 19 Q: Okay. 20 A: Yeah. 21 Q: Now, Dr. Christie also agreed with my 22 suggestion that, in that sense, in terms of what we just 23 discussed here, that Deb Hutton had an impact on and 24 influenced the flow of the meeting and what was, in fact, 25 discussed at that meeting; is that in accord with your


1 recollection as well? 2 A: Well, it's not in accord with my 3 recollection particularly but it -- that seems a 4 reasonable inference, yes. 5 Q: Sure. Reasonable based on what 6 you've read in the minutes and reasonable based on Dr. 7 Christie's testimony -- 8 A: Yes. 9 Q: -- that I've just recited to you? 10 A: Yes. 11 Q: Now, to conclude here, Mr. McCabe, if 12 we could just, for a moment, step back from the specific 13 facts of that meeting -- and I'm probably stating the 14 obvious to you, you probably know more about it than I, 15 but the Attorney General, I suppose as a general 16 proposition or matter of law, has carriage of Crown 17 litigation as Chief Law Officer for the Crown? 18 A: Yes. 19 Q: Okay. And would it be fair of me to 20 say, again as a matter of law, that the Attorney General 21 or the Attorney General's office or representative does 22 not take orders or direction from anyone on how to 23 discharge that function; is that a fair statement as 24 well? 25 A: I think that's a fair statement, yes.


1 Q: Okay. Thank you, Commissioner. 2 Those are my questions. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. George. And the final examiner, subject 5 to your own counsel, Ms. Twohig, is Mr. Roy on behalf of 6 Aboriginal Legal Services of Toronto. 7 COMMISSIONER SIDNEY LINDEN: Good 8 afternoon, Mr. -- 9 MR. JULIAN ROY: Good afternoon, Mr. 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Good 12 afternoon. 13 MR. JULIAN ROY: You'll note that I 14 haven't got up yet today for any unsolicited 15 contributions to -- 16 COMMISSIONER SIDNEY LINDEN: Well I 17 appreciate that, Mr. Roy. I appreciate that. I know 18 you're trying your best. 19 MR. JULIAN ROY: Hopefully that's 20 ingratiated myself to the Commission. 21 22 CROSS-EXAMINATION BY MR. JULIAN ROY: 23 Q: Good afternoon, Mr. McCabe. I -- 24 it's been a very long day for you, I -- I can appreciate 25 that. And probably neither of us want to be here at this


1 moment and -- 2 A: I appreciate your solicitude, Mr. 3 Roy. 4 Q: But I do have some questions and -- 5 and I'll try and -- I'll try and do it in calm, soothing 6 tones, and we'll get through it. All right? 7 COMMISSIONER SIDNEY LINDEN: Beware of 8 lawyers bringing solicitude. 9 THE WITNESS: Don't -- don't let your 10 overarching concern for my comfort get in the way of your 11 quest, sir. 12 13 CONTINUED BY MR. JULIAN ROY: 14 Q: All right. What I want to start -- 15 one (1) of the things that came out from your evidence 16 that I wanted to explore in a little bit more detail is - 17 - is the meeting with Mr. Taman that happens before the 18 IMC meeting on September 6th that has been canvassed to 19 some extent, but I want to ask you a little bit more 20 about that -- 21 A: Yes. 22 Q: -- to start. All right? 23 Do you have any recollection as to how 24 that meeting was convened? 25 How did you know that you were to show up


1 at that meeting? 2 A: Not really. I may have touched upon 3 this yesterday that I must have known about that -- 4 Q: Yes. 5 A: -- the nigh -- you know, the day 6 before, the -- 7 Q: Yes. 8 A: -- night before, because it was, you 9 know, at 7:00 in the morning or something of that sort on 10 the -- on the Wednesday. 11 Q: Yes. Do you have any recollection as 12 to the purpose of that meeting before the IMC meeting? 13 A: You know, no specific recollection in 14 terms of agenda for the meeting -- 15 Q: Yes. 16 A: It was clearly about the occupation 17 of Ipperwash Provincial Park, yes. 18 Q: This might help you. Do you think it 19 might have had something to do with briefing Minister 20 Harnick later that morning, does that jog your memory? 21 A: I have no, you know, recollection of 22 that in particular, I mean, obviously it's -- it would be 23 not be surprising if Mr. Taman was later going to brief 24 Mr. Harnick that he may -- this might have been an aspect 25 of his preparation for that.


1 Q: Sure. Did you have any awareness 2 that Mr. Harnick was going to be briefed at some time 3 that morning by either Mr. Taman or Ms. Jai? 4 A: Not that I recall. I may have known 5 at the time, I may have been told that at the time, but I 6 don't recall it. 7 Q: Now, in terms of the attendees at the 8 meeting, you've told us that you definitely recall Ms. 9 Jai was there, correct? 10 A: Yes. 11 Q: And you think Ms. Christie, your 12 junior, was also there? 13 A: Yes, I think so, yes. 14 Q: Yes. And along with Mr. Taman, do 15 you think Mr. Taman perhaps had an assistant or somebody 16 recording what was happening at the meeting? 17 A: It's quite possible. But I -- you 18 know, I can't remember. 19 Q: In terms of your briefings of -- of 20 Mr. Taman on other occasions, is it not uncommon for him 21 to have, like, an assistant who would be taking notes of 22 direction he would be giving? 23 A: I don't recall many briefings of Mr. 24 Taman at all. 25 Q: All right. Now, am I right in saying


1 that -- that Ms. Jai was, in essence, presenting the 2 results of the IMC meeting from the day before, to Mr. 3 Taman? 4 A: I don't have a specific recollection 5 of -- of what happened at the meeting. I think that 6 would be in accord with -- with -- with, you know, with 7 her role and her perception of her role and I wouldn't be 8 at all surprised if that's how the meeting unfolded. 9 Q: And I want to explore a little bit 10 your impression of Mr. Taman that he was suggesting, and 11 I'm taking it from your evidence from yesterday, that he 12 maybe wanted to take a step back to explore other 13 possibilities, other than taking precipitous action to 14 obtain an injunction. 15 A: Right. I'm sure precipitous is my 16 word, but -- 17 Q: It is. I'm not capable of using 18 words like that, so I -- that's definitely your word. 19 A: And I was -- I was making it clear 20 that I wasn't quoting Mr. Taman at that point. 21 Q: Sure. But that, in any event, that 22 was your impression of the view that he was advancing at 23 that meeting? 24 A: Yes. 25 Q: In other words, your impression was


1 that Mr. Taman was questioning whether or not there was 2 any need to get an injunction that week at all, never 3 mind Wednesday night, Thursday or Friday, correct? 4 A: I'm not at all sure as to the -- what 5 his concern extended to, whether it was injunction at 6 all. I know, you know, I -- I, you know, I -- in trying 7 to piece it together that's, you know, it's -- it's 8 suggest -- you know, I -- I thought that maybe was, 9 indeed, his -- his concern -- 10 Q: Yes. 11 A: -- and he wanted to explore that. On 12 the other hand, you know, in the circumstances of this 13 case, it would be surprising, you know, from this vantage 14 point that he was, you know, downplaying the possibility 15 of an injunction at all -- 16 Q: All right. 17 A: -- at any time. 18 Q: But at a minimum, he may have been 19 questioning the need to get one that week as opposed to 20 maybe a week or two (2) down the road? 21 A: Yes, I think that's fair in my 22 recollection, which may be clouded. 23 Q: Sure. Now, I don't think you've been 24 asked about this meeting in particular as it pertains to 25 notes you might have had.


1 Is it fair to say that you probably would 2 have had pen and paper and maybe made a couple of points 3 on a piece of paper regarding that meeting? 4 A: It's possible, but I'm -- you know, 5 I'm not a good note taker. 6 Q: Sure. 7 A: And as I said earlier, I -- you know, 8 I would typically go into meetings with notes rather than 9 come out of them with them. 10 Q: Sure. And Ms. Christie was there and 11 she often takes notes when the two of you are together? 12 A: Yes, during this period that was the 13 case. 14 Q: Pretty typical of a senior and junior 15 sort of relationship that that would happen; correct? 16 A: I suppose, yes. 17 Q: And you didn't direct her not to take 18 notes or anything at that meeting; did you? 19 A: No. 20 MS. KIM TWOHIG: Excuse me, just a point 21 of clarification, I think Mr. McCabe said that he wasn't 22 sure whether Ms. Christie was there or not. He seems to 23 recall that she was but I don't think there's any 24 evidence that she actually was. 25 And her testimony was that she didn't


1 attend. 2 MR. JULIAN ROY: Well, I don't recall Ms. 3 Christie being as definitive as that in her evidence. So 4 I think it's a fact that is available for you to find. 5 COMMISSIONER SIDNEY LINDEN: I don't have 6 a recollection of her exact answer on that question 7 either. Do you, Mr. Worme? No? 8 MR. DONALD WORME: I do not. I'm sorry. 9 COMMISSIONER SIDNEY LINDEN: Okay. 10 11 CONTINUED BY MR. JULIAN ROY: 12 Q: Now, what Mr. Taman seemed to be 13 talking about at this meeting, this notion of, sort of, 14 taking a step back and maybe going a little slower, 15 that's something that Mr. Taman wasn't coming out of left 16 field with that kind of notion; was he? 17 A: Well -- 18 MS. KIM TWOHIG: I'm not sure the witness 19 can answer that question, Mr. Commissioner. 20 MR. JULIAN ROY: I'm a baseball fan and I 21 won't use a metaphor and I'll ask the question in a 22 different way. 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. JULIAN ROY: I'm happy to do that. 25


1 CONTINUED BY MR. JULIAN ROY: 2 Q: What Mr. Taman was talking about was 3 consistent with the way protests and blockades had been 4 approached in previous cases; is that not correct? 5 A: You know, I think, relevant to your 6 question is it's important to realize, I think, that the 7 -- that the -- the sampling of events is pretty small. 8 Q: Sure. 9 A: I mean, we need -- you don't want to, 10 yourself, have the impression or create the impression 11 that, you know, there's a -- that, you know, that these 12 things frequently occurred and that there was a body of 13 precedent that had been set. 14 So you know, that said, yes, I think the 15 idea of injunctions, and I guess this is related to the 16 point that's been made in the context of the Ontario 17 Provincial Police and their preference for the 18 achievement of an injunction as an element that can be 19 used to defuse a circumstance, it wasn't just the OPP 20 that had that view. 21 I think it's probably true that certainly 22 among the civil servants, and among whom I probably count 23 myself, that would be the -- that would be the -- you 24 know, yeah, the idea would be that, you know, you know, 25 and -- and unless there were, you know, circumstances


1 that would lead otherwise, not a good idea to take 2 precipitous action. 3 But when it comes to injunctions, you 4 know, it may be that an injunction, you know, in certain 5 context is not -- not considered precipitous action. 6 It's a -- you know, it's -- it's something that's going 7 to be a tool in the box of -- of sorting the -- the 8 matter out later. Sure. 9 Q: But the timing of when you go and try 10 and get the injunction is another matter; correct? 11 A: Well, you know, again, you know, I 12 don't think this matter has come up that -- this question 13 hasn't occurred enough times for us to make, you know, 14 general statements as to a normal course. 15 Q: But you had -- you had been familiar 16 with the notion of the blockade committee or the 17 emergency committee -- 18 A: Yes. 19 Q: -- whatever term -- 20 A: Yes. 21 Q: -- you're familiar with, appointing a 22 negotiator, for example, or a third party to, sort of, 23 get a bit of a dialogue going with the people who were 24 engaged in the blockade or the protest; correct? 25 A: There may well be instances of that.


1 None come to mind at the moment. But, you know, again -- 2 Q: All right. 3 A: -- there may well be. 4 Q: You're just not familiar with that? 5 A: Yeah, as I say, none come to -- 6 Q: Okay. 7 A: -- mind at the moment, yeah. 8 Q: Now, when I look at Julie Jay's notes 9 on September 6th, and I don't really want to take you to 10 them directly because you have been examined on them, but 11 you're free to pull them up if you want. They're in Tab 12 19. 13 When I look at that passage about the 14 exchange between where you're involved and you're quoted 15 about -- about the best case scenario for the injunction 16 being Friday? 17 A: Yes. 18 Q: Do you recall that part of the notes? 19 A: Yes. 20 Q: Am I right in saying that the debate 21 that seems to be going on at the meeting is about whether 22 or not Friday is fast enough in terms of securing the 23 objectives that Ms. Hutton was advancing at the meeting? 24 A: I better take a look at the note. 25 Q: Sure.


1 A: Do you know what page this is on? 2 I'm at Tab 19. 3 4 (BRIEF PAUSE) 5 6 A: I wonder if you could tell me what 7 page that's -- 8 Q: Sure, it's page 3. 9 A: Yes. 10 Q: And in that tab you have Ms. Jai's 11 notes on the 5th and the 6th. They actually -- the ones 12 for the 5th they're first in that tab. 13 A: Right. I see page 3, yes. 14 Q: If you look at page 3, "best case 15 Friday in court." 16 A: Yes. 17 Q: And then there's sort of a debate 18 that follows where Ms. Hutton is saying, "The Premier 19 wants them out in a day or two." 20 And then there's sort of debate that 21 follows that. 22 What I'm suggesting to you, in general, is 23 that what seems to be discussed at the meeting is whether 24 or not Friday is fast enough; am I right? 25 A: Yes. I say, "Best case Friday in


1 court. Deb says -- what he says, "Wants them out in a 2 day or two." Then I say, "That suggests we should 3 proceed under Code." 4 So, yes, that exchange seems to be in that 5 context, yes. 6 Q: Yes. And that's primarily your 7 participation at the meeting is reflected in that part of 8 the notes, is that correct? 9 You can take a look if you want. 10 A: I suppose so, yes. 11 Q: And what I'm going to suggest to you 12 is -- is what Mr. Taman was, sort of, proposing about 13 taking a step back and maybe going a little slower. 14 That's not reflected in the discussion or the debate at 15 that point in the meeting. And I'm wondering, do you 16 recall advancing what Mr. Taman was -- was, sort of, 17 musing about earlier on in that morning. 18 A: I don't recall doing that, no. 19 Q: Do you recall any of the other people 20 from ONAS or -- or from MAG generally, sort of, advancing 21 Mr. Taman's query about can we go a little bit slower? 22 A: I don't recall that, no. 23 Q: Yes. Because the way I read it and 24 I'm wondering if this is consistent with your memory. 25 What everybody seems to be doing is -- is sort of trying


1 to answer Ms. Hutton's concerns about timing. 2 Is that -- is that consistent with your 3 memory? 4 A: You know, my recollection on the 5 issue is -- is, you know, bounded by these notes so... 6 Q: Sure. All right. So, then it would 7 be consistent that what was being addressed at the 8 meeting was -- was answering Ms. Hutton's concerns about 9 timing. 10 A: It appears to be, yes. 11 Q: Yeah. And -- and what I'm asking you 12 and I'm not being critical of you, sir, and I'm not 13 trying to be flippant or anything, but Ms. Hutton is not 14 your superior in terms of the chain of command within the 15 civil service. 16 Ms. Hutton has no authority over you or 17 any of the other professional civil servants at that 18 meeting; is that correct? 19 A: I suppose that's true, yes. 20 Q: Yes. But Mr. -- Mr. Taman does, 21 correct? 22 A: Yes. 23 Q: In fact he is, if you follow the line 24 of authority up, he's ultimately your superior, correct? 25 A: Yes.


1 Q: Doesn't really get any higher than 2 Mr. Taman in terms of the professional civil service, 3 does it? 4 A: That's right. 5 Q: Do you have any -- can you enlighten 6 us as to how that dynamic, sort of, developed where 7 everybody's addressing themselves to Ms. -- Ms. Hutton 8 rather than following up on the direction of Mr. Taman 9 from the -- from the meeting earlier? 10 A: Well, I'm not sure that -- again, I 11 mean this is all conditioned by the fact that I had 12 little or no independent recollection of what's going on 13 at this meeting. And -- and I'm not sure that it's 14 entirely, you know, just on the basis of what you read 15 here, that everybody is directing themselves to Ms. -- to 16 what Ms. Hutton has to say. 17 But, if she is the one who is imparting 18 the news that the Premier says that, you know, his -- his 19 preference is that the people be out of the Park within a 20 day or two (2), she, it would appear, is the only person 21 in attendance who is either imparting that information or 22 -- or, you know, in some way advocating that position. 23 Q: Sure. 24 A: Right. So, you know, it's not 25 unreasonable to, you know, to -- to infer from that, that


1 yes, the -- any other viewpoint needs to necessarily has 2 to deal with that particular viewpoint. 3 Q: Sure. I understand how the meeting 4 is addressing -- 5 A: Yeah. 6 Q: -- Ms. Hutton's viewpoint and people 7 are taking an opposite position, obviously, but I guess 8 you can review the notes for me and tell me if it 9 refreshes your memory as to whether or not anybody's kind 10 of strongly advocating Mr. Taman's position about, should 11 we be going for an injunction at all or maybe we should 12 take a step back. 13 A: I don't think so, no. 14 Q: Now, I want to jump ahead to after -- 15 COMMISSIONER SIDNEY LINDEN: Just a 16 minute, Mr. Roy. 17 Yes, Mr. Downard? 18 MR. PETER DOWNARD: Sir, I have a concern 19 about the -- with respect to the Witness, the quality of 20 the evidence we're getting. 21 COMMISSIONER SIDNEY LINDEN: I -- 22 MR. PETER DOWNARD: We can all argue the 23 notes one way or another. He has no recollection. 24 COMMISSIONER SIDNEY LINDEN: I'm 25 concerned as well. When the Witness says that he doesn't


1 have any recollection except what's in the notes, and 2 they're not his notes -- 3 MR. JULIAN ROY: Sure. 4 COMMISSIONER SIDNEY LINDEN: I'm 5 concerned about the value and the quality of the 6 evidence. 7 MR. JULIAN ROY: And you'll have to 8 consider, you'll have to weigh that -- 9 COMMISSIONER SIDNEY LINDEN: Yes, I will, 10 but -- 11 MR. JULIAN ROY: -- with respect in -- 12 COMMISSIONER SIDNEY LINDEN: I'm not 13 anxious to pursue -- 14 MR. JULIAN ROY: Yes. 15 COMMISSIONER SIDNEY LINDEN: -- his 16 recollection of notes that -- 17 MR. JULIAN ROY: Absolutely. 18 COMMISSIONER SIDNEY LINDEN: -- he says 19 he doesn't recall, and aren't his notes. 20 MR. JULIAN ROY: Yes. And it's just that 21 parties on the other side went to some lengths to elicit 22 evidence about what he observed at the meeting and -- 23 and -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN ROY: -- in my respectful


1 submission, for what it's worth, I'm with respect, 2 entitled to, sort of, draw out other aspects of the 3 meeting and -- and it may all not be -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. JULIAN ROY: -- that useful to you, 6 but it was done by -- by other people and I'm -- 7 COMMISSIONER SIDNEY LINDEN: Yes, it was. 8 MR. JULIAN ROY: -- just trying to 9 address that. 10 COMMISSIONER SIDNEY LINDEN: At some 11 point in time it begins to be -- begins to seem less and 12 less valuable -- 13 MR. JULIAN ROY: Sure. 14 COMMISSIONER SIDNEY LINDEN: When you 15 realize how -- 16 MR. JULIAN ROY: And I -- 17 COMMISSIONER SIDNEY LINDEN: -- much is 18 being asked of the Witness when he says he doesn't recall 19 and when he's being asked to draw inferences from -- 20 MR. JULIAN ROY: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- from 22 notes that aren't his. 23 MR. JULIAN ROY: But, I don't think this 24 issue of Mr. Taman's musing and -- 25 COMMISSIONER SIDNEY LINDEN: No.


1 MR. JULIAN ROY: -- and how it played out 2 in the meeting, I don't think -- 3 COMMISSIONER SIDNEY LINDEN: No. 4 MR. JULIAN ROY: -- I think that's fresh, 5 I -- I -- 6 COMMISSIONER SIDNEY LINDEN: Yes, it is. 7 MR. JULIAN ROY: -- I tried to be 8 different and I think that was and -- 9 COMMISSIONER SIDNEY LINDEN: It's not 10 just a matter of difference. It's a matter of -- do you 11 have -- yes Ms. -- 12 MS. KIM TWOHIG: Yes, I -- thank you, Mr. 13 Commissioner. I just wanted to add that if My Friend is 14 going to refer to the notes, there is a quote on page 3 15 of those very notes that might explain one (1) reason why 16 this discussion, at least as far as Mr. McCabe, did not 17 take place. And I think to be fair to him, he should be 18 directed to what he was quoted as saying at the meeting. 19 MR. JULIAN ROY: Well -- 20 COMMISSIONER SIDNEY LINDEN: Well -- 21 MR. JULIAN ROY: With respect -- 22 COMMISSIONER SIDNEY LINDEN: You can't 23 have it both ways. 24 MR. JULIAN ROY: -- I did -- I did give - 25 - I did invite the witness to review the notes and --


1 COMMISSIONER SIDNEY LINDEN: Yes, but I 2 mean -- 3 MR. JULIAN ROY: -- take a look at them 4 and use them to assist in giving his answers. And if 5 there's some other part of the notes that My Friend 6 thinks are useful in terms of her case, she's free to 7 bring it out in re-examination. 8 That's the -- 9 COMMISSIONER SIDNEY LINDEN: All right. 10 MR. JULIAN ROY: -- appropriate way to do 11 it, with respect. 12 COMMISSIONER SIDNEY LINDEN: It's also -- 13 MR. JULIAN ROY: It's not by way of 14 objections. 15 COMMISSIONER SIDNEY LINDEN: No, it's 16 also appropriate for her to point out if you're not being 17 fair to a witness. That helps -- 18 MR. JULIAN ROY: Yes. 19 COMMISSIONER SIDNEY LINDEN: -- me, 20 because -- 21 MR. JULIAN ROY: In -- in -- 22 COMMISSIONER SIDNEY LINDEN: -- if you're 23 being fair to a witness, that's my responsibility, so -- 24 MR. JULIAN ROY: And I did not misquote 25 anything that was in this --


1 COMMISSIONER SIDNEY LINDEN: No, but if 2 there's something in there that is important to give the 3 proper context, to be fair to the witness, you should 4 mention it. 5 MR. JULIAN ROY: And I -- 6 COMMISSIONER SIDNEY LINDEN: You know, I 7 don't know that unless Ms. Twohig mentions it. 8 MR. JULIAN ROY: Yes. 9 COMMISSIONER SIDNEY LINDEN: So, that's 10 why it's a helpful intervention, because it ensures that 11 we're going to be fair to the witness and that's -- 12 MR. JULIAN ROY: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- what I'm 14 trying to do. 15 So, what is that you pointed out? 16 MR. JULIAN ROY: When asked -- when I 17 suggested that he look at the notes and use those to -- 18 to give his answer, I thought I was being fair -- 19 COMMISSIONER SIDNEY LINDEN: Well, all 20 right -- 21 MR. JULIAN ROY: -- with respect. 22 COMMISSIONER SIDNEY LINDEN: Let's move 23 on. As I said, they're not his notes and his testimony 24 is that he doesn't have very much recollection, except 25 what's in the notes.


1 MR. JULIAN ROY: Yes. 2 COMMISSIONER SIDNEY LINDEN: So, every 3 time you're going to ask him a question about the notes, 4 he's going to have to stop and read all of the notes. 5 They're not his notes. It's very 6 difficult to have valuable evidence -- 7 MR. JULIAN ROY: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- this way. 9 So, let's move on now. There is a point that Ms. Twohig 10 says you should bring to the Witness' attention in order 11 to be fair to him. 12 I don't know what it is. 13 MS. KIM TWOHIG: I'm loathe to raise it, 14 but it's on -- on page 3 at the top it says, and this 15 purports to be, I think, something that maybe Ms. Hutton 16 said, "We are seeking the injunction". 17 And then Tim is -- said to her remark at 18 the meeting: 19 "The Ministers can say instructions 20 have been given to AG to seek an 21 injunction ASAP." 22 So, that might provide somewhat of an 23 answer to the issue of why Mr. Taman's earlier concerns 24 were not raised. 25 COMMISSIONER SIDNEY LINDEN: All right.


1 We've put it in -- 2 MR. JULIAN ROY: That's it -- as I 3 understand that quote that's about -- and I think it's 4 been brought out by other parties that that -- that 5 reflected a discussion about communication strategy. So 6 I don't see how that bears anything on -- on the line of 7 cross-examination that I was engaged in, with respect. 8 COMMISSIONER SIDNEY LINDEN: It's 9 difficult for all of us -- 10 MR. JULIAN ROY: It is. 11 COMMISSIONER SIDNEY LINDEN: -- to 12 interpret Ms. Jay's notes and to put some more meaning on 13 them. Ms. Jay was here. She testified. You can ask him 14 what he remembers about the meeting. 15 MR. JULIAN ROY: I'm only -- 16 COMMISSIONER SIDNEY LINDEN: But you're 17 asking him about Ms. Jay's notes -- 18 MR. JULIAN ROY: Yes. 19 COMMISSIONER SIDNEY LINDEN: -- and 20 that's pretty difficult. 21 MR. JULIAN ROY: And I've done that 22 because other parties have done that -- 23 COMMISSIONER SIDNEY LINDEN: I understand 24 they have. 25 MR. JULIAN ROY: -- and put their -- and


1 asked for this witness' assistance -- 2 COMMISSIONER SIDNEY LINDEN: Carry on. 3 MR. JULIAN ROY: -- and I'm just trying 4 to be consistent with that, Mr. Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Carry on, 6 Mr. Roy. We're just pointing out at some point the 7 evidence doesn't have as much weight as it might 8 otherwise have. 9 MR. JULIAN ROY: Yes, and that's -- as 10 long as that's not an objection, I don't really have any 11 response to it. If it's an observation about weight, 12 that's something that can be made in submissions after. 13 COMMISSIONER SIDNEY LINDEN: Fine. Carry 14 on. I'm asking you to carry on. 15 16 CONTINUED BY MR. JULIAN ROY: 17 Q: Now, I'd like to -- thank you very 18 much, Mr. Commissioner. 19 I'd like to jump ahead to after the 20 meeting. Sorry, after the IMC meeting of September 6, 21 sir? 22 A: Yes. 23 Q: Thank you. And it's about Mr. 24 Taman's direction as it's conveyed to you by a rather 25 breathless Ms. Christie coming into your office.


1 Do you remember your evidence about that? 2 A: I'm not sure that I remember exactly 3 what I said but, yes. 4 Q: Okay. Now, you've told us that you 5 didn't, after hearing that direction as conveyed by Ms. 6 Christie, that you didn't go back and confirm that with - 7 - with, for example, Mr. Taman or anybody else; is that 8 correct? 9 You've already given that evidence? 10 A: Yes. 11 Q: Yeah. And I'm going to suggest the 12 reason why you didn't do that is that the direction as 13 was conveyed by Ms. Christie was pretty clear to you in 14 terms of what your direction was to be, correct? 15 A: Yes. And -- and it -- it appears 16 also that it came from Mr. Taman. 17 Q: Now, prior to getting that direction 18 that you're to proceed with an injunction either 19 Wednesday afternoon or Thursday morning, to the extent 20 that you'd given an opinion on this matter, your opinion 21 was to proceed with an injunction with notice on Friday; 22 is that correct? 23 A: Yes. 24 Q: And you didn't give any other opinion 25 other than that prior to receiving that direction from


1 Mr. Taman via Ms. Christie, correct? 2 A: Right. 3 Q: Now, your -- the instruction that 4 you're to proceed -- that the motion is to be returnable 5 Wednesday afternoon or Thursday morning really made the 6 issue of notice academic; is that correct? 7 A: Yes. Well, it made -- it made 8 obvious which rule I needed to proceed under. 9 Q: Yeah. 10 A: I still intended to provide service, 11 if possible. 12 Q: But the direction about Wednesday 13 afternoon or Thursday morning, the decision is -- is made 14 that it has to be ex parte; correct? 15 A: Yes. 16 Q: That makes the decision for you; 17 correct? 18 A: Yes. 19 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 20 Horvat...? 21 MS. JACQUELINE HORVAT: I don't believe 22 there was any evidence that there was a direction that 23 the -- the motion was to proceed Wednesday afternoon. I 24 think it was just a suggestion provided by Mr. Taman. 25 COMMISSIONER SIDNEY LINDEN: Well, again,


1 I'm not sure of the exact wording. But do you want to 2 help me, Mr. Worme, can you whether it was direction, 3 suggestion, discussion? 4 MR. JULIAN ROY: My question was -- to 5 clarify, and this might help my friend in terms of the -- 6 in terms of her objection, my suggestion was the 7 direction was to proceed either Wednesday afternoon or 8 Thursday morning. 9 And I think -- with the alternatives 10 there, I think it captures the direction. And the 11 witness has already said the direction was clear to him. 12 So in my respectful submission I didn't -- I didn't 13 suggest there was a direction, an ironclad direction on 14 Wednesday. 15 MR. DONALD WORME: I agree with that, 16 that position, Commissioner. 17 COMMISSIONER SIDNEY LINDEN: That's fine. 18 Even though it's late in the day and late in the week I'm 19 delighted to see that all counsel are still paying very 20 close attention to every word. Carry on. 21 THE WITNESS: Now, I think he just said, 22 in the course of that exchange, the witness has said, 23 direction. If you mean me, you know, as I've said, you 24 know, I'm not sure, you know, from whom and when, you 25 know, the instruction to proceed the next day and -- and


1 in fact the business about later today is all very -- is 2 -- is second hand at this stage to me -- 3 Q: No, I understand. 4 A: -- coming through Elizabeth, yeah. 5 Q: I understand. And that's clear in 6 your evidence. 7 Now, I take it that very soon after that 8 discussion that you would have had with -- with Ms. 9 Christie about what was to happen that very soon after 10 that one (1) of your big priorities would have been to 11 contact a police officer to give -- with respect to the 12 issue of giving viva voce evidence, am I right? 13 A: Yes. I'm sure that's the case, yes. 14 Q: That's not something that you were 15 going to dilly dally about, is that correct? 16 A: That's right. 17 Q: Yeah. So if you contacted -- and 18 we've already heard that you contacted and spoke to 19 Inspector Carson at 2:36, if we're trying to locate in 20 time when you might have had that discussion with Ms. 21 Christie, probably wouldn't be any -- you would have had 22 that discussion probably within an hour or so of that -- 23 the telephone call; is that correct? 24 A: I would expect so, yes. 25 Q: I'm wondering if Exhibit P-729 could


1 be placed in front of the Witness, please? 2 3 (BRIEF PAUSE) 4 5 COMMISSIONER SIDNEY LINDEN: What is 6 this, Mr. Roy, so the rest of us can look at it? 7 MR. JULIAN ROY: I beg your pardon? 8 COMMISSIONER SIDNEY LINDEN: What is 9 Exhibit 729? 10 MR. JULIAN ROY: P-729 is the Hansard 11 from September -- or it's actually the Standing Committee 12 on Estimates from Wednesday, September 3rd, 1997. I -- 13 I've given notice regarding this document. In fact Ms. 14 Horvat actually gave notice regarding this document so -- 15 on behalf of Mr. Harnick. 16 COMMISSIONER SIDNEY LINDEN: Well... 17 MR. JULIAN ROY: And -- and -- I don't 18 know if you want me to address you on it, but... 19 COMMISSIONER SIDNEY LINDEN: Not yet. 20 MR. JULIAN ROY: All right. 21 COMMISSIONER SIDNEY LINDEN: It depends 22 on what use you make of it. 23 MR. JULIAN ROY: Yes. 24 COMMISSIONER SIDNEY LINDEN: The fact 25 that the document exists and Hansards are --


1 MR. JULIAN ROY: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- matters 3 of public record -- 4 MR. JULIAN ROY: And it's an exhibit. 5 COMMISSIONER SIDNEY LINDEN: -- and so 6 on, it depends on the use you make of it. 7 MR. JULIAN ROY: Yes. 8 9 CONTINUED BY MR. JULIAN ROY: 10 Q: Now, have you had a chance to review 11 this document, sir? 12 A: No. 13 Q: No? 14 COMMISSIONER SIDNEY LINDEN: Do you want 15 to stop then and give him a chance to review it? 16 MR. JULIAN ROY: Sure. And -- and 17 perhaps Exhibit -- just to save time -- Exhibit P-728, if 18 that could also, please... 19 COMMISSIONER SIDNEY LINDEN: 729 you 20 said, yes? 21 MR. JULIAN ROY: This -- the one (1) that 22 I've just asked is 729. I -- I went backwards, it's P- 23 728 -- 24 COMMISSIONER SIDNEY LINDEN: Oh, it's 25 another one 720 --


1 MR. JULIAN ROY: -- is -- is the -- is 2 earlier in time and earlier... 3 THE WITNESS: Thank you. 4 5 (BRIEF PAUSE) 6 7 COMMISSIONER SIDNEY LINDEN: I had a copy 8 of those documents at some point. I don't have them 9 right now. 10 MR. DERRY MILLAR: Perhaps we can take a 11 short break and get them? 12 COMMISSIONER SIDNEY LINDEN: No, it 13 depends as I said, depends on where you're going with 14 them. I may want to have them in front of me. 15 MR. JULIAN ROY: I apologize. 16 COMMISSIONER SIDNEY LINDEN: That's all 17 right. 18 MR. JULIAN ROY: I -- I did -- I was the 19 one that provided you copies earlier and I -- 20 COMMISSIONER SIDNEY LINDEN: Yes, I did 21 have a copy -- 22 MR. JULIAN ROY: -- and I apologize. I 23 should have done it again. I know there's a large mass 24 of documents and my responsibility. 25 COMMISSIONER SIDNEY LINDEN: It's not in


1 this binder? 2 MR. JULIAN ROY: It's not. 3 COMMISSIONER SIDNEY LINDEN: I keep 4 disposing of binders that I don't need anymore so I may 5 not have kept them. They're somewhere in the database. 6 MR. DERRY MILLAR: No, they're not. 7 COMMISSIONER SIDNEY LINDEN: No, they're 8 not? 9 MR. JULIAN ROY: They're not. 10 COMMISSIONER SIDNEY LINDEN: Okay. 11 12 (BRIEF PAUSE) 13 14 THE WITNESS: Yes...? 15 16 CONTINUED BY MR. JULIAN ROY: 17 Q: You -- you've had an opportunity to 18 review those? 19 A: Yes. 20 Q: Would you like me to proceed with the 21 question -- 22 COMMISSIONER SIDNEY LINDEN: Let's see 23 where-- 24 MR. JULIAN ROY: -- before you have the 25 document, Mr. Commissioner?


1 COMMISSIONER SIDNEY LINDEN: Let's see 2 where you're going. 3 MR. JULIAN ROY: All right. 4 5 CONTINUED BY MR. JULIAN ROY: 6 Q: Now, I want to emphasize to you what 7 I do not -- what I'm not attempting to elicit from you is 8 some kind of opinion about the truthfulness of the 9 utterances contained in the document. 10 A: Right. 11 Q: All right. What I'm going to be 12 asking you about is whether or not certain statements in 13 the document are accurate, all right, there's a 14 distinction. 15 Well of course there's a -- you understand 16 that there's a distinction that people can make -- 17 MR. DONALD WORME: Mr. Commissioner -- 18 MR. JULIAN WORME: -- inaccurate 19 statements by accident all the time, and that happens. 20 Untruthful statements, or statements that are made 21 inaccurately on purpose, all right? 22 You understand the distinction? 23 MR. DONALD WORME: Well, perhaps I can 24 just interrupt the witness, and I want to interrupt My 25 Friend as well, simply to make it clear that if it is his


1 intention to cross-examine on the basis of the Hansard 2 document consistent with his attempt to do so with Ms. 3 Hipfner, I will be objecting. 4 COMMISSIONER SIDNEY LINDEN: I assume 5 he's not doing that, because we already had this 6 discussion. 7 MR. JULIAN ROY: Well, I intend to do 8 exactly what I did with -- with Ms. -- ultimately what I 9 did with Ms. Hipfner when she -- 10 COMMISSIONER SIDNEY LINDEN: yes. 11 MR. JULIAN ROY: -- put -- read certain 12 statements from the Hansard to the witness and ask her if 13 they're accurate in terms of -- 14 COMMISSIONER SIDNEY LINDEN: His 15 knowledge, his recollection or his -- 16 MR. JULIAN ROY: Yes, but they refer to 17 Mr. McCabe, so -- 18 COMMISSIONER SIDNEY LINDEN: Yes, I know 19 that. 20 MR. DONALD WORME: Well, again, Mr. 21 Commissioner, I don't see the relevance of this. I mean 22 if -- if Mr. McCabe was sitting in the House on the day 23 in question then perhaps that might be fair, but I think 24 that these are questions that are properly put to the 25 author or to the speaker in that particular instance, and


1 that being Mr. Harnick, if that's what I think My Friend 2 is -- 3 COMMISSIONER SIDNEY LINDEN: Yes, you -- 4 MR. DONALD WORME: -- going to be 5 referring to. 6 MR. JULIAN ROY: Well, maybe I can try 7 and lay a foundation before I ask the question first? 8 COMMISSIONER SIDNEY LINDEN: I'm not sure 9 that that's a good idea. 10 MR. JULIAN ROY: Well -- 11 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 12 Downard...? 13 MR. JULIAN ROY: Can I propose the 14 question that I would ask -- 15 COMMISSIONER SIDNEY LINDEN: Well, I'm 16 not sure, Mr. Downard I -- 17 MR. JULIAN ROY: -- the foundation. 18 COMMISSIONER SIDNEY LINDEN: Mr. Downard, 19 you have an observation, I'd like to hear it. 20 MR. PETER DOWNARD: Well, if My Friend is 21 simply concerned about whether certain facts are 22 accurate, he doesn't need to refer to a transcript of the 23 Attorney General -- 24 COMMISSIONER SIDNEY LINDEN: No, of 25 course not.


1 MR. PETER DOWNARD: -- in Hansard. 2 COMMISSIONER SIDNEY LINDEN: That's 3 right. That's why I'm now wondering why he needs the 4 transcript, why he needs the Hansard. 5 MR. JULIAN ROY: well -- 6 COMMISSIONER SIDNEY LINDEN: But -- 7 MR. JULIAN ROY: I'm going to propose -- 8 COMMISSIONER SIDNEY LINDEN: You can 9 ask -- 10 MR. JULIAN ROY: I'm going to propose a 11 question that I would ask by way of laying a foundation 12 for asking the -- by putting the transcript in front of 13 the witness and my -- the question that I would propose 14 to ask is whether or not he was aware that these 15 statements were made. 16 COMMISSIONER SIDNEY LINDEN: Did he read 17 them, did he see them, did he have them? Those kinds of 18 questions, I think those -- 19 MR. JULIAN ROY: Abs-- 20 COMMISSIONER SIDNEY LINDEN: -- questions 21 were asked of Ms. Hipfner, if I'm not mistaken. 22 MR. JULIAN ROY: Yes, that's right. I -- 23 do I have your leave to ask those questions? 24 COMMISSIONER SIDNEY LINDEN: Well, let's 25 see where we're going and if you need to object, Mr.


1 Worme, I hope you will. 2 MR. DONALD WORME: If I hear the 3 question, I will. 4 COMMISSIONER SIDNEY LINDEN: Or Mr. 5 Downard. I'm not sure where we're going and why we need 6 to do this, but I'm not sure -- 7 MR. JULIAN ROY: I -- 8 COMMISSIONER SIDNEY LINDEN: -- why you 9 can't ask the question without reference to the Hansard; 10 that's what I thought we were -- had agreed to do. You 11 don't need to refer to the Hansard. 12 If you're cross-examining the author, then 13 you may need to refer to -- 14 MR. JULIAN ROY: All right. 15 COMMISSIONER SIDNEY LINDEN: -- to the 16 Hansard, assuming that the witness waives privilege with 17 respect -- 18 MR. JULIAN ROY: That's already happened, 19 I think. 20 MR. PETER DOWNARD: The difficulty is 21 that it appears to me that even if it is not My Friend's 22 intent, it can -- it appears to me that even if it is not 23 My Friend's intent, it can -- 24 COMMISSIONER SIDNEY LINDEN: Why do it? 25 MR. PETER DOWNARD: To proceed in this


1 fashion can appear to be nothing but an attack on 2 credibility -- 3 COMMISSIONER SIDNEY LINDEN: Yes, and 4 it's persecuitious. 5 MR. PETER DOWNARD: -- when -- 6 COMMISSIONER SIDNEY LINDEN: I mean, you 7 just ask the questions. You don't need the Hansard to 8 ask the questions. Just ask the questions. 9 MR. JULIAN ROY: All right. What I'd ask 10 -- what I'd ask you by way of request of leave to ask the 11 question, did he -- 12 COMMISSIONER SIDNEY LINDEN: But I don't 13 think it -- 14 MR. JULIAN ROY: -- become aware -- 15 COMMISSIONER SIDNEY LINDEN: I don't 16 think it matters at this point. 17 18 MR. JULIAN ROY: Well -- 19 COMMISSIONER SIDNEY LINDEN: I think if 20 you just ask the question that you want to ask. I'm not 21 trying to prevent you from asking your question. 22 You don't need - 23 MR. JULIAN ROY: I'm sorry. 24 COMMISSIONER SIDNEY LINDEN: You don't 25 need the Hansard to ask your question. You don't need to


1 put it as -- 2 MR. JULIAN ROY: But -- 3 COMMISSIONER SIDNEY LINDEN: -- if you're 4 confronting him with a statement that may be 5 inconsistent, when it's not his statement. 6 MR. JULIAN ROY: No, I -- I -- 7 COMMISSIONER SIDNEY LINDEN: So -- 8 MR. JULIAN ROY: -- understand that 9 concern, but what I'm -- why I say I should ask him the 10 foundation question is if he became aware that these 11 statements were made. 12 COMMISSIONER SIDNEY LINDEN: You don't 13 need -- 14 MR. JULIAN ROY: It might be relevant to 15 things he might have done after the fact to address. 16 COMMISSIONER SIDNEY LINDEN: You don't 17 need the Hansard to ask the question, so I'm going ask 18 if -- 19 MR. JULIAN ROY: Well, if he heard that 20 these statements were made -- 21 COMMISSIONER SIDNEY LINDEN: Why don't 22 you ask him the question? Just ask the questions that 23 you want to ask him, without reference to -- back to 24 reference to the actual transcript? 25


1 You can ask the questions. 2 MR. JULIAN ROY: It's late in the day and 3 I probably have more argument I could make, and 4 fruitlessly, but I'll just do it the way you're 5 suggesting, Mr. Commissioner. 6 7 CONTINUED BY MR. JULIAN ROY: 8 Q: I take it your evidence -- your 9 evidence so far in what you've already said to me a few 10 minutes ago, it was not your considered opinion that an 11 ex parte injunction be applied for; is that correct? 12 A: Yes, prior to receiving these 13 instructions -- 14 Q: Yes. 15 A: -- on the afternoon of the 6th. 16 17 (BRIEF PAUSE) 18 19 A: That wasn't the, you know, most 20 efficacious course from the point of view of my client. 21 COMMISSIONER SIDNEY LINDEN: The 22 situation changed. As I understood his evidence, the 23 situation changed significantly as time went on, so I'm 24 not sure what the value is of asking these questions now, 25 but anyway...I don't know what the question is so I


1 better let you ask it. 2 MR. JULIAN ROY: Well, I -- I already 3 asked the question; I got my answer. 4 COMMISSIONER SIDNEY LINDEN: You're 5 satisfied with your answer? 6 MR. JULIAN ROY: Yeah. I am actually. 7 COMMISSIONER SIDNEY LINDEN: All right 8 then, move on. 9 MR. JULIAN ROY: We can -- we can just 10 keep going. 11 COMMISSIONER SIDNEY LINDEN: Good. We 12 seem to have problems where we don't need them so let's 13 move on. 14 MR. JULIAN ROY: Well... 15 COMMISSIONER SIDNEY LINDEN: Let's move 16 on. 17 18 CONTINUED BY MR. JULIAN ROY: 19 Q: I want to go into an entirely new 20 area and it's -- and it relates to Ms. Tuck- Jackson's 21 questioning of you regarding your conversations with 22 Inspector Carson, Inspector Linton and Detective Sergeant 23 Wright. 24 Do -- do you recall Ms. Tuck-Jackson 25 asking you questions about that area?


1 A: Yes. 2 Q: Okay. Now, Ms. Tuck-Jackson was 3 asking you about an impression that you had in terms of 4 the OPP approach to this incident. 5 Do you recall her asking you questions 6 about that? 7 A: Generally, yes. 8 Q: Yes. And she suggested to you and I 9 believe you agreed that from your discussions with 10 Inspector Fox and Inspector Carson that you had every 11 indication that it was the intent of the OPP to stay the 12 course, hold the fort, and wait for an injunction. 13 Do you remember that? 14 A: Yes, and I suppose one could say 15 thereafter as well. 16 Q: Yes. Now, your last -- I --I realize 17 your last conversation with an OPP officer prior to the 18 shooting was with Inspector Linton, but it was a brief 19 conversation. 20 I want to ask you about the conversation 21 right before that and that's the one you had with 22 Detective Sergeant Wright? 23 A: Yes. 24 Q: And I want to ask you some questions 25 about whether or not that conversation might have


1 impacted this impression you had about the OPP approach. 2 MR. JULIAN ROY: And it's Exhibit -- Mr. 3 Commissioner, it's Exhibit 463 and it's Tab 29 in the 4 Witness' binder of documents. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. JULIAN ROY: 9 Q: Could you go to page 3 of that -- 10 that document? 11 Now, that -- that impression that you had 12 about what the OPP's intention was, can you tell me when 13 you heard from Detective Sergeant Wright on page 3 in the 14 middle? 15 A: Yes. 16 Q: "Well, they're moving -- they're 17 coming out for a fight down the road so 18 we've taken all the marines down there 19 -- down now." 20 Did that statement dispel that impression 21 that you had -- 22 A: Well -- 23 Q: -- that the OPP was going to take the 24 approach that Ms. Tuck-Jackson suggested? 25 A: You know again I don't recall these


1 exchanges, certainly not with any degree of particularity 2 and I -- I think in Mr. Downard's phrase I -- you know 3 there -- there may well be a -- on that account a concern 4 with the quality of the evidence that you're -- 5 Q: Sure. 6 A: -- you're getting about my 7 impressions about -- about various things. 8 Q: It's just that you were prepared to 9 give that evidence when Ms. Tuck-Jackson was asking you-- 10 A: Right. 11 Q: -- so that -- that's why I thought 12 you might be able to shed some light on it. So I'm 13 wondering if -- if when -- when Detective Sergeant Wright 14 talked about taking down the marines did that dispel that 15 impression you might have about the OPP's approach? 16 A: I -- I don't remember having my 17 confidence in the OPP shaken in any -- in any way by 18 that, no. 19 Q: All right. 20 A: I -- I -- you know as I understood he 21 was -- he was suggesting that the OPP was responding to 22 an emergent situation. 23 Q: Okay. If you could go to page 21 of 24 the document, please? 25 COMMISSIONER SIDNEY LINDEN: That's fine.


1 Carry on. Do you have an objection? 2 MS. KIM TWOHIG: Well, I -- I might have 3 an objection after this question. I'm just concerned 4 that Mr. McCabe's impressions are irrelevant and whether 5 or not certain statements might have dispelled an 6 impression is even more irrelevant. 7 COMMISSIONER SIDNEY LINDEN: Well, Ms. 8 Tuck-Jackson asked him the questions and I think these 9 are perfectly proper questions in the exact same -- same 10 kind of question. 11 12 CONTINUED BY MR. JULIAN ROY: 13 Q: Are you on page 21, sir? 14 A: Yes. 15 Q: All right. When -- if -- if you go 16 about two-thirds down the page there. 17 A: Yes. 18 Q: Where Detective Sergeant Wright says: 19 "We're going to -- we're going to war 20 now. We're not going to be serving 21 anybody." 22 A: Right. 23 Q: When you heard that did that dispel 24 this notion about the OPP's approach? 25 A: No, I don't think it did, I --


1 Q: No? 2 A: You know I have limited involvement 3 with police officers in the course of -- in the course of 4 my life and I -- you know again it's -- it's 5 reconstructing what my likely reactions were to these 6 things. I -- I thought I was probably being treated -- 7 treated to some police speak. 8 Q: Hmm hmm. 9 A: And, yeah, I did have the impression 10 that there was a very -- you know there was a serious 11 circumstance that was -- 12 Q: Sure. 13 A: -- that was arising. 14 Q: In the reference to, "We're going to 15 war now," who did you understand Detective Sergeant 16 Wright was going to war with? 17 A: I -- I don't -- I don't think I 18 formed -- 19 Q: No? 20 A: -- a conclusion one (1) way or the 21 other. He -- you know apart from what he was telling me 22 I -- you know I had no way of knowing what -- what the 23 circumstances were or what -- what the intentions of -- 24 of any of these parties were. 25 Q: Okay. I'm just asking you the


1 questions in the vein of Ms. Tuck-Jackson because you -- 2 you were able to -- 3 A: Right. 4 Q: -- assist her with the impressions 5 you had before. 6 A: Well, the thing is my impressions -- 7 Q: So... 8 A: -- may have been irrelevant 9 yesterday, too. 10 Q: Well -- we're stuck with -- 11 A: And -- and -- 12 Q: -- we're stuck with your evidence. 13 COMMISSIONER SIDNEY LINDEN: In my view 14 it's fair for Mr. -- 15 THE WITNESS: Sure. 16 COMMISSIONER SIDNEY LINDEN: -- for Mr. 17 Roy to ask questions which are essentially the same kind 18 of questions -- 19 THE WITNESS: Right. 20 COMMISSIONER SIDNEY LINDEN: -- when he's 21 bringing to your attention specific -- 22 THE WITNESS: Right. 23 MR. JULIAN ROY: And -- and -- 24 COMMISSIONER SIDNEY LINDEN: -- comments. 25 MR. JULIAN ROY: -- you didn't offer that


1 limitation yesterday when -- 2 COMMISSIONER SIDNEY LINDEN: That's fine. 3 MR. JULIAN ROY: -- you gave those 4 impressions, did you? 5 THE WITNESS: Well, on the other hand no 6 one -- no one objected yesterday. 7 COMMISSIONER SIDNEY LINDEN: But... 8 MR. JULIAN ROY: No, no. 9 THE WITNESS: But anyway, proceed. 10 COMMISSIONER SIDNEY LINDEN: Carry on. 11 MR. JULIAN ROY: And -- and although 12 people are objecting Mr. Commissioner has ruled that the 13 questions -- 14 THE WITNESS: Yes. 15 MR. JULIAN ROY: -- are proper -- 16 COMMISSIONER SIDNEY LINDEN: Well... 17 MR. JULIAN ROY: -- so you shouldn't -- 18 COMMISSIONER SIDNEY LINDEN: Well, Ms. 19 Tuck-Jackson, do you have an objection? 20 THE WITNESS: He has indeed. 21 MS. ANDREA TUCK-JACKSON: Mr. 22 Commissioner, I only wish to rise to draw the distinction 23 that what I drew from this Witness yesterday is that he 24 received no indication. 25 COMMISSIONER SIDNEY LINDEN: There's


1 nothing that he said, nothing that anybody said. 2 MS. ANDREA TUCK-JACKSON: Exactly. I -- 3 I actually -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MS. ANDREA TUCK-JACKSON: -- wasn't 6 asking for an impression, I was asking for evidence as to 7 whether or not he received information-- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MS. ANDREA TUCK-JACKSON: -- from either 10 Officers Fox or Carson -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MS. ANDREA TUCK-JACKSON: -- to indicate 13 a different course of action. 14 COMMISSIONER SIDNEY LINDEN: And that's 15 what Mr. Roy's doing, he's bringing to his attention 16 comments that were made to him and he's asking if that 17 had any affect on his impression that you were asking him 18 about. 19 MS. ANDREA TUCK-JACKSON: Well, he -- he 20 seems to be asking -- 21 COMMISSIONER SIDNEY LINDEN: It goes -- 22 MS. ANDREA TUCK-JACKSON: He seems to be 23 asking -- I -- I don't object -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MS. ANDREA TUCK-JACKSON: -- if he's --


1 if he's asking whether or not things were said to him 2 that caused -- that gave rise to an inference that there 3 was a different course of action. 4 COMMISSIONER SIDNEY LINDEN: I think 5 that's exactly what he's doing if I'm not mistaken. 6 MS. ANDREA TUCK-JACKSON: If that's what 7 he's doing then I don't have a difficulty with it. 8 COMMISSIONER SIDNEY LINDEN: I think 9 that's exactly what he's doing. Is that what you're 10 doing, Mr. Roy? 11 MR. JULIAN ROY: It is. 12 COMMISSIONER SIDNEY LINDEN: I think it 13 is. 14 MR. JULIAN ROY: It is and I -- and I 15 can't put it as elegantly as -- as Ms. Tuck-Jackson -- 16 COMMISSIONER SIDNEY LINDEN: Well, I 17 can't either, I can't either. 18 MR. JULIAN ROY: -- when she asks 19 questions. So... 20 COMMISSIONER SIDNEY LINDEN: So, you've 21 asked about a couple of comments, are there any others 22 you want to draw to his attention? 23 MR. JULIAN ROY: Well, there's one (1) 24 more that I wanted to ask him about. 25 COMMISSIONER SIDNEY LINDEN: Okay. Let's


1 do it. 2 MR. JULIAN ROY: And that -- that was on 3 page 22. 4 5 CONTINUED BY MR. JULIAN ROY: 6 Q: You'd actually -- I apologize, it 7 starts on page 21. It's at the bottom and it's where 8 Detective Sergeant Wright says: 9 "Well, we can try -- I mean we can try 10 at CFB Ipperwash at the front gate, but 11 like my -- my -- my advice to the 12 command staff here is no way. How -- 13 how are they going to take that? Like 14 I know we just went into battle with -- 15 within and we got ten (10) of these 16 guys in custody, but however -- by the 17 way here's an injunction -- piece of 18 paper." 19 Do you see that? 20 A: Yes. 21 Q: Now, the reference to, "just went to 22 battle," did that comment dispel this positive impression 23 you had about the OPP stance on this matter? 24 A: But you're not asking me about my 25 impressions as I understand it?


1 Q: Okay. Why don't I ask you about your 2 impressions then? Are you more comfortable with 3 impressions? 4 A: No. I said but you are -- as I 5 understand it you are not to ask me about my impressions, 6 isn't that correct? 7 COMMISSIONER SIDNEY LINDEN: No, that's-- 8 MR. JULIAN ROY: No. 9 COMMISSIONER SIDNEY LINDEN: No, no. You 10 indicated what your impressions were essentially. 11 MR. JULIAN ROY: I -- I'll use the word, 12 "impressions," again. I like to mix it up and use other 13 words so people don't get bored, but I'll use, 14 "impressions," again. 15 16 CONTINUED BY MR. JULIAN ROY: 17 Q: Did this reference to battle -- did 18 this dispel your impression that -- as to the nature of 19 the OPP's approach to the occupation? 20 A: No, as far as -- as I understood the 21 OPP is now faced with a -- a very difficult and very 22 threatening circumstance. From my vantage point in 23 downtown Toronto by my telephone, I have no knowledge of 24 what's actually happening there on the road to the Park 25 and so forth that night.


1 Q: And even though you have no knowledge 2 about what's happening there, a police officer, a Peace 3 Officer, is making references to battle, war and marines. 4 Did that not give you any concern about 5 what the OPP's approach was? 6 A: No, as I said before, I -- I thought 7 I was being -- that Officer Wright under some strain, was 8 describing a -- an emergency situation that was beginning 9 to arise, and that the Police were -- were having to 10 confront at this stage. 11 And as far as the, you know, the 12 reference to marines and war, I knew it wasn't marines, I 13 knew it wasn't war, he knew it wasn't marines, he knew it 14 wasn't war, but as to why, you know, as to whether police 15 officers habitually in terms of emergencies and so forth, 16 use these kinds of expressions like that, I really had no 17 experience one way or the other. 18 Q: Okay. 19 A: I -- I was listening to the man 20 describing a difficult situation. 21 Q: Now, I want to ask you something 22 else, because you -- you characterized statements that -- 23 that were reported to you from First Nations people, you 24 characterize that as bellicose posturing. 25 Do you remember the way you did that when


1 Mr. Klippenstein was asking you questions? 2 A: Yes. 3 Q: Yeah. And you don't have any 4 experience in that regard either, do you? 5 A: You had some people in the Park who 6 have -- who have -- who have forcefully ejected others, 7 have said, no one else can be in this Park. 8 Q: Yes. 9 A: Who are threatening to proceed down 10 the beach, all the way to Kettle Point Indian Reserve, 11 who are damaging property, so the evidence is. 12 Q: Yes. 13 A: The evidence that -- that I was 14 receiving, are damaging property, are destroying 15 property, are intoxicated, are -- are making threats 16 about guns, yeah, I don't have much experience with that, 17 but to me that's bellicose activity, yes. 18 Q: Well, we'll get to the threats about 19 guns and -- and so on in a minute, but you also had a 20 police officer, who's making references to war, battle 21 and marines. 22 Did you not view that as bellicose 23 posturing? 24 A: Well he's, you know, as I understand 25 his comments, this was in response to bellicose actions


1 that were emanating from the people in the park. 2 Q: Okay, well we'll hear further 3 evidence about that bellicose posturing and what his 4 response was, and there's some other questions I want to 5 ask you about Detective Sergeant Wright's evidence in 6 that regard; all right? 7 Now, we'll get to that in a second, but 8 Ms. -- Ms. Tuck-Jackson also asked you about Inspector 9 Carson's candour in putting limitations on the evidence 10 regarding firearms? 11 A: Yes. 12 Q: Do you remember that? 13 A: Yes. 14 Q: Okay. And what Inspector Carson very 15 fairly was doing is he was making sure you understood 16 that with respect to the evidence about firearms -- 17 A: Yes. 18 Q: -- that he was saying that there was 19 no evidence of direct threat using these weapons or 20 firearms; is that correct? 21 A: Yes, that the Police hadn't been 22 threatened with -- 23 Q: Yeah. 24 A: -- with firearms, although there are 25 statements like -- or the statement that we will do our


1 talking with guns, I think is also part of the evidence. 2 Q: You didn't hear that from Inspector 3 Carson, did you? 4 A: I don't think I heard it from -- I'm 5 -- I'm speaking of the evidence that was recounted under 6 oath before Justice Daudlin the next day. 7 Q: Yeah. But just to clarify you didn't 8 -- you didn't hear anything at any time from Inspector 9 Carson about we'll do our talking with guns? 10 A: I -- I can't recall, but I'm sure the 11 transcript speaks for itself. 12 Q: It does. Now, you talked to 13 Inspector Carson first at 2:36 and then a second time 14 around four o'clock that afternoon? 15 A: Apparently so. 16 Q: And -- and I take it that you didn't 17 take from any of that further discussion with Inspector 18 Carson or either of those discussions, that he was 19 wavering from this position that he was advancing, that 20 you were not to take the impression that the police 21 officers were being threatened with firearms? 22 A: That's right. You know, the -- I am 23 not passing, you know, I am not forming opinions as I'm 24 hearing these -- these reports from the police officers 25 about the circumstances on the ground.


1 My sole concern is to arrange for a 2 witness in Court the next day who will explain to the 3 Court under Oath what has happened and what hasn't 4 happened. 5 Q: And you see -- you see no role for 6 yourself in terms of assessing the value or reliability 7 of that evidence? 8 A: My intention was to ask the police 9 officer, under Oath, to give a narrative of events and 10 circumstances since the occupation of the Park began. 11 Q: All right, if you could turn to -- if 12 Exhibit 463 could be put in front of the witness? It's 13 tab -- actually it doesn't need to be, it's Tab 29 again. 14 A: Tab 29? 15 Q: Page 18. If you go to the top of 16 page 18. 17 A: Yes. 18 Q: And Detective Sergeant Wright is 19 saying, 20 "Yeah, Christ, if that's like we were - 21 - if we have to give that out, okay, 22 but we had a report of automatic fire 23 in the Park." 24 Do you see that? 25 A: Yes.


1 Q: And you understood that to be -- 2 actually, it says "automatic weapon fire in the Park," do 3 you see that? 4 A: Yes. 5 Q: And you understood the significance 6 of automatic weapons versus ordinary rifles? 7 A: I had a general idea that they were, 8 you know, more dangerous. 9 Q: Yes. And did you know that automatic 10 weapons are actually prohibited weapons? 11 A: I'm -- no, that fact escaped me at 12 the time. 13 14 (BRIEF PAUSE) 15 16 Q: In fairness, your Counsel said that 17 he's not sure that in '95 that they were prohibited 18 weapons, so I'll withdraw that suggestion. 19 I thought I was sure about that but My -- 20 My Friend may be correcting me. 21 Now, Detective Sergeant Wright didn't put 22 any qualification on that statement about automatic 23 weapon fire, did he? 24 25 (BRIEF PAUSE)


1 MS. KIM TWOHIG: If My Friend has a 2 transcript, perhaps he could go to the portions that deal 3 with that issue. 4 MR. JULIAN ROY: I'll be getting there 5 but I'd prefer to do it in the order that -- that I 6 planned, rather than the order Ms. Twohig prefers. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MS. KIM TWOHIG: No, it's not fair to ask 9 the witness, though, to remember what Sergeant Wright 10 said ten (10) years ago without some point of reference. 11 That was my only point. 12 COMMISSIONER SIDNEY LINDEN: Well, I 13 understand but which transcript are you referring to, Ms. 14 Twohig? 15 MR. JULIAN ROY: I'm on the -- I'm on the 16 telephone discussion. 17 COMMISSIONER SIDNEY LINDEN: Yes, which 18 one are you referring to Ms. Twohig? 19 MS. KIM TWOHIG: I'm referring to the one 20 in Court, because in my submission, that's all that 21 really matters. 22 MR. JULIAN ROY: We'll be getting to 23 that, but I'd like to do it in the order -- I want to 24 first deal it -- with it in terms of the telephone 25 discussion.


1 COMMISSIONER SIDNEY LINDEN: Well, you'd 2 better do it quickly, because it's -- it needs to be done 3 in close proximity, in order to be fair. 4 MR. JULIAN ROY: It will be. 5 COMMISSIONER SIDNEY LINDEN: To give the 6 full story. Okay. 7 MR. JULIAN ROY: It will be. 8 COMMISSIONER SIDNEY LINDEN: All right, 9 then do it your way, but do it. 10 MR. JULIAN ROY: I want to try and do it 11 in an orderly fashion. 12 COMMISSIONER SIDNEY LINDEN: Yes, all 13 right. You do it the way you want to, but it should be 14 close together so it gives the right -- 15 MR. JULIAN ROY: I'm going to deal with 16 automatic weapon fire and all the utterances from 17 Detective Sergeant Wright in one group, if I can. 18 COMMISSIONER SIDNEY LINDEN: Go ahead. 19 MR. JULIAN ROY: But I think I have to do 20 it in some order. 21 COMMISSIONER SIDNEY LINDEN: Carry on, 22 Mr. Roy. 23 MS. KIM TWOHIG: Mr. Commissioner, may I 24 object to this line of questioning of this witness. I 25 don't know what point Mr. Roy could possibly be making


1 with this witness, because Mr. McCabe has testified that 2 he brought the ex parte injunction on instructions and 3 was going to proceed regardless of the evidence. 4 It would be given and the Judge could make 5 the decision. If My Friend is suggesting that perhaps he 6 would not have proceeded had he taken into consideration 7 certain pieces of evidence, perhaps he can ask Mr. McCabe 8 that, but that -- 9 MR. JULIAN ROY: I'm not doing that at 10 all -- 11 MS. KIM TWOHIG: I don't know where he's 12 going with this -- 13 COMMISSIONER SIDNEY LINDEN: No, no, I -- 14 MR. JULIAN ROY: I'm not doing that at 15 all. 16 COMMISSIONER SIDNEY LINDEN: No, but I'm 17 having a little difficultly too, you best move on -- 18 MR. JULIAN ROY: Well -- 19 COMMISSIONER SIDNEY LINDEN: -- it gets 20 more difficult -- 21 MR. JULIAN ROY: Yes, yes. 22 COMMISSIONER SIDNEY LINDEN: -- for me. 23 He said when he testified that he wasn't evaluating or 24 judging this testimony -- 25 MR. JULIAN ROY: That's true.


1 COMMISSIONER SIDNEY LINDEN: He was 2 rehearsing, he was sort of -- 3 MR. JULIAN ROY: That's true. 4 COMMISSIONER SIDNEY LINDEN: -- preparing 5 for the hearing. 6 MR. JULIAN ROY: That's true, but Ms. 7 Tuck-Jackson engaged in a line of examination -- 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. JULIAN ROY: -- that invited this 10 witness -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. JULIAN ROY: -- to put his seal of 13 approval on the candour and quality of the evidence that 14 was given by the police officers. 15 COMMISSIONER SIDNEY LINDEN: That's why 16 I -- 17 MR. JULIAN ROY: I wish she had not done 18 that -- 19 COMMISSIONER SIDNEY LINDEN: That's why I 20 let you go -- 21 MR. JULIAN ROY: -- frankly. 22 COMMISSIONER SIDNEY LINDEN: -- there. 23 That's why I let you go there. 24 MR. JULIAN ROY: Yes. 25 COMMISSIONER SIDNEY LINDEN: Because I do


1 think it's fair -- 2 MR. JULIAN ROY: I wish she hadn't done 3 that, but now that -- 4 COMMISSIONER SIDNEY LINDEN: Well -- 5 MR. JULIAN ROY: -- she's done it -- 6 COMMISSIONER SIDNEY LINDEN: It's opened 7 up -- 8 MR. JULIAN ROY: -- it's opened it up. 9 COMMISSIONER SIDNEY LINDEN: But I don't 10 want to -- 11 MR. JULIAN ROY: And I'm going to try and 12 do it quickly. 13 COMMISSIONER SIDNEY LINDEN: -- go too 14 far. 15 MS. KIM TWOHIG: But Mr. Commissioner, 16 the candour and quality of the police officer's evidence 17 is surely a matter that should be put to the police 18 officers and not to Mr. McCabe? 19 COMMISSIONER SIDNEY LINDEN: Yes, well -- 20 MR. JULIAN ROY: And I would agree with 21 that, other than the fact that Ms. Twohig did not object 22 when Ms. Tuck-Jackson engaged in precisely that line of 23 questioning. 24 COMMISSIONER SIDNEY LINDEN: Well, that - 25 - that --


1 MR. JULIAN ROY: I don't understand the 2 double standard in -- in terms of her objections. 3 COMMISSIONER SIDNEY LINDEN: I'm trying 4 to maintain a single standard, and I think if you move on 5 and move quickly, we can get through this Mr. Roy, 6 MR. JULIAN ROY: I'm trying to move as 7 quickly as I can. 8 COMMISSIONER SIDNEY LINDEN: Right. 9 MS. KIM TWOHIG: I would like to voice my 10 objection to the suggestion -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MS. KIM TWOHIG: -- that there's a double 13 standard. I had understood Ms. Tuck-Jackson to be asking 14 about what indications he received from the police 15 officers about certain things. 16 COMMISSIONER SIDNEY LINDEN: Well, Ms. 17 Tuck-Jackson put some general statements to the witness 18 that he agreed with. It was a synopsis and it was a sort 19 of a summary, and I think what Mr. Roy is doing is 20 showing that there's other statements that may not be 21 consistent with that. That's really what he's doing, and 22 I don't think that's unfair in the circumstances. 23 MS. KIM TWOHIG: Well, the exception 24 though is, Mr. Commissioner, that I think Ms. Tuck- 25 Jackson was dealing with the indication of the intentions


1 of the Police on September 6th, when Mr. McCabe spoke to 2 him -- to them, specifically Inspector Fox. But My 3 Friend is now asking about impressions much later -- 4 COMMISSIONER SIDNEY LINDEN: No, this is 5 the same day isn't it? Isn't this conversation with -- 6 MR. JULIAN ROY: It's on September 6th, 7 and you'll recall that Ms. Tuck-Jackson elicited the 8 evidence about John Carson's candour about his discussion 9 on September 6th, it's the same. 10 COMMISSIONER SIDNEY LINDEN: It's just 11 the same time -- 12 MR. JULIAN ROY: Precisely the same. 13 COMMISSIONER SIDNEY LINDEN: -- frame. 14 It's just the same. 15 MS. KIM TWOHIG: Well I suppose then this 16 is about Mr. McCabe's credibility then as to whether -- 17 MR. JULIAN ROY: It's not -- 18 MS. KIM TWOHIG: -- well -- 19 MR. JULIAN ROY: -- absolutely not. 20 MS. KIM TWOHIG: -- I just want to be 21 sure that it's not. 22 MR. JULIAN ROY: I can assure My Friend 23 that it's got absolutely nothing to do with this 24 witness's credibility, and everything to do with -- with 25 his views of the propriety of the behaviour of others.


1 It's -- it's the police officers that are -- that are in 2 question, not Mr. McCabe, and my line of questioning. 3 COMMISSIONER SIDNEY LINDEN: And what 4 makes it relevant is the fact that those questions were 5 asked, or that information -- 6 MR. JULIAN ROY: That's right. That's 7 right. 8 COMMISSIONER SIDNEY LINDEN: I don't want 9 to go too far afield, but you've got -- so far, if you 10 can move along quickly we can get through this, and I 11 think it would -- 12 MR. JULIAN ROY: I'm trying to move 13 quickly. 14 COMMISSIONER SIDNEY LINDEN: -- be fair 15 to do it. 16 MR. JULIAN ROY: I'm trying to move 17 quick. 18 19 CONTINUED BY MR. JULIAN ROY: 20 Q: You'll agree with me that there's no 21 qualification in terms of Detective Sergeant Wright's 22 statement about a report of automatic weapon fire? 23 A: Yes, I -- I'm looking at the passage 24 at the top of page 18 of this transcript. 25 Q: Yes.


1 A: And there's no qualification, he 2 says, yes, we had a report of automatic weapon fire in 3 the Park. 4 Q: Yeah. And -- and you had a 5 discussion with Detective Sergeant Wright the next 6 morning, prior to his giving evidence; correct? 7 A: I did, yes. 8 Q: Yeah. And he didn't put any further 9 qualification on that report of automatic weapon fire did 10 he? 11 A: I -- I can't recall us dealing with 12 the subject. In fact, I can't recall really what we 13 dealt with in the course of that -- 14 Q: All right. 15 A: -- conversation. 16 Q: Ms. Twohig has suggested we go to the 17 transcript, because that's what really counts. So if you 18 could go to page 21 of the transcript, and that's at Tab 19 36 of your book. 20 MR. JULIAN ROY: And it's Exhibit 737, 21 for the record, Mr. Commissioner. 22 COMMISSIONER SIDNEY LINDEN: Sorry, tab-- 23 MR. JULIAN ROY: It's your Tab 36, sir. 24 COMMISSIONER SIDNEY LINDEN: Thirty-six 25 (36).


1 MR. JULIAN ROY: It's Inquiry Document 2 3000504, it's Exhibit 737, and it's Tab 36 in the 3 witness's book of documents, on page 21 of the document 4 please, sir. 5 6 (BRIEF PAUSE) 7 8 CONTINUED BY MR. JULIAN ROY: 9 Q: And you'll see in the middle, if you 10 actually start at line 10? 11 A: Yes. 12 Q: It's the beginning of an answer given 13 by Detective Sergeant Wright? 14 A: Yes. 15 Q: And if we can start sort of in the 16 middle -- 17 A: Yes. 18 Q: -- of that answer? 19 "The west side is quite picturesque and 20 open. There's also, Your Honour, a 21 pump house and water purification plant 22 in the Ipperwash Provincial Park, which 23 feeds Ipperwash Military Camp. I 24 should say, and pardon me, but I just 25 want you to have all the information,


1 and I believe it was Tuesday night 2 officers there, that were at those 3 points, checkpoints, heard what they 4 believed to be automatic weapons fired 5 within the Park. What was believed to 6 be fifty (50) to a hundred (100) rounds 7 of automatic weapons fire going off 8 inside the Park. That was Tuesday." 9 Do you see that? 10 A: Yes. 11 COMMISSIONER SIDNEY LINDEN: I think the 12 question that you're going to ask, because I want to make 13 sure you don't go any further afield: Did this change 14 the impression that he gave? That's the question. 15 MR. JULIAN ROY: No, I'm going to suggest 16 that -- that he didn't, again, in giving his evidence, 17 Detective Sergeant Wright, didn't put a qualification on 18 there. 19 COMMISSIONER SIDNEY LINDEN: Yes, but the 20 point of asking this is to tie it back to what he said 21 about the evidence involving the police officers -- 22 MR. JULIAN ROY: Yes. 23 COMMISSIONER SIDNEY LINDEN: -- when -- 24 MR. JULIAN ROY: About the candour of the 25 police in terms of --


1 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. JULIAN ROY: -- presenting the 3 picture. 4 COMMISSIONER SIDNEY LINDEN: But that's 5 the only basis at the moment? 6 MR. JULIAN ROY: Absolutely. 7 COMMISSIONER SIDNEY LINDEN: All right. 8 MR. JULIAN ROY: Absolutely. 9 10 CONTINUED BY MR. JULIAN ROY: 11 Q: Now, you would agree with me that the 12 evidence that he gave in Court did not put a 13 qualification on the statement about automatic weapons 14 fire? 15 A: Yes. 16 Q: Yeah? And -- 17 A: Well, I'm not sure what you mean by a 18 qualification on the statement. I mean the -- 19 Q: Okay. Let -- let me show you what I 20 mean. 21 A: -- the statement -- the statement in 22 Court is -- is -- is at that point in the transcript. 23 Q: Yes, but if -- if -- I want -- I want 24 to give you some assistance with what I mean by a 25 qualification --


1 A: Yes. 2 Q: -- on that evidence. 3 A: Yes. 4 Q: It's -- it's -- and it's contained at 5 Exhibit 444(a) Tab 37. 6 And it's -- you don't have that document 7 in front of you, sir, it's Exhibit 444 -- actually I'm -- 8 I'm told that you do have it; it's the discussion between 9 Inspector Carson, Fox, and Coles. 10 A: Could you help me with what tab 11 that's at? 12 Q: It's not in your main book of 13 documents it's -- it's in -- I believe it's in the 14 documents that Mr. Klippenstein provided. I don't have 15 the numbering system for Mr. Klippenstein's documents. 16 Oh, the actual exhibit's there? 17 A: Right. 18 Q: Great. 19 MR. DONALD WORME: Tab 37. 20 MR. JULIAN ROY: Tab 37. 21 COMMISSIONER SIDNEY LINDEN: He's not 22 privy to this conversation? 23 MR. JULIAN ROY: That's right, but he did 24 ask what I meant by -- 25 COMMISSIONER SIDNEY LINDEN: Well --


1 MR. JULIAN ROY: -- qualifications -- 2 qualification of that evidence. And I'm going to -- I'm 3 proposing to put the qualifications and asking him if -- 4 COMMISSIONER SIDNEY LINDEN: Where -- 5 MR. JULIAN ROY: On a question-by- 6 question basis I propose to ask him some questions. 7 COMMISSIONER SIDNEY LINDEN: We're going 8 to drift away again, Mr. Roy. By asking the questions 9 this way we're drifting into an area that is not where I 10 thought you were going. 11 Ms. Tuck-Jackson asked some questions and 12 you were going to ask some other questions to see if it 13 affected his view; that's really all I -- 14 MR. JULIAN ROY: It's not -- it's not 15 going to be whether it affected his view. 16 COMMISSIONER SIDNEY LINDEN: Yeah, 17 affected his impression? 18 MR. JULIAN ROY: Of the police officers' 19 candour. 20 COMMISSIONER SIDNEY LINDEN: That's -- 21 MR. JULIAN ROY: And that was what -- 22 that was the stamp of approval that Ms. Tuck-Jackson 23 elicited, unfortunately. 24 COMMISSIONER SIDNEY LINDEN: We're 25 getting a bit out of control.


1 MS. ANDREA TUCK-JACKSON: Mr. 2 Commissioner, in respect of Officer Carson what I asked 3 this witness to clarify was that he was left with the 4 impression that Officer Carson did not want to over-state 5 the evidence -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. ANDREA TUCK-JACKSON: -- that might 8 be tendered in support of the injunction. I didn't ask, 9 in respect of Officer Wright, the same question. 10 COMMISSIONER SIDNEY LINDEN: You didn't? 11 MS. ANDREA TUCK-JACKSON: No, I didn't, 12 sir. 13 COMMISSIONER SIDNEY LINDEN: You asked 14 something about -- 15 MS. ANDREA TUCK-JACKSON: No. In respect 16 of Officer Wright I simply pulled out certain pieces of 17 testimony that the officer gave. I didn't then ask -- 18 COMMISSIONER SIDNEY LINDEN: But what was 19 the point of it? I need to be refreshed in my memory 20 about what the point of -- 21 MS. ANDREA TUCK-JACKSON: The -- the 22 point, sir was simply -- 23 COMMISSIONER SIDNEY LINDEN: -- pulling 24 out those pieces of testimony with Sergeant Wright? 25 MS. ANDREA TUCK-JACKSON: The point, sir,


1 was to lay an evidentiary foundation so that down the 2 line the OPP can make certain arguments -- 3 COMMISSIONER SIDNEY LINDEN: Yeah. 4 MS. ANDREA TUCK-JACKSON: -- about the 5 conduct of Officer Wright -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MS. ANDREA TUCK-JACKSON: -- at the 8 hearing, but I was not eliciting any type of opinion or 9 an impression about Officer Wright through this witness. 10 MR. JULIAN ROY: Well, then I'd like to 11 address through evidence the submissions My Friend is 12 going to be making about the conduct of Detective Wright 13 at this hearing and his candour on automatic weapons fire 14 would be part of that conduct that I would want to elicit 15 through evidence to address what I now anticipate are 16 going to be submissions of Ms. Tuck-Jackson. 17 COMMISSIONER SIDNEY LINDEN: Yeah. 18 MS. KIM TWOHIG: Mr. Commissioner, my 19 concern at this time is that Mr. McCabe is being asked to 20 opine on the candour of Sergeant Wright. We have two (2) 21 transcripts here which we can't compare -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MS. KIM TWOHIG: -- and he could have 24 asked questions of then Incident -- 25 COMMISSIONER SIDNEY LINDEN: Yes.


1 MS. KIM TWOHIG: -- Commander Carson and 2 he will have an opportunity to ask Sergeant Wright, but 3 I'm not sure Mr. McCabe can add anything to what the 4 police officers may have intended. 5 COMMISSIONER SIDNEY LINDEN: Yes, I think 6 we've gotten too far afield. 7 MR. JULIAN ROY: Well -- 8 COMMISSIONER SIDNEY LINDEN: You've taken 9 us into an area that is too far afield, Mr. Roy, and I 10 don't want to go down any further. I think you've just 11 gone a little too far away from our main course and it's 12 not useful anymore. 13 I thought it would be if it was kept the 14 way Ms. Tuck-Jackson asked, if you would have been able 15 to put those questions in that way -- 16 MR. JULIAN ROY: Well, Ms. Tuck-Jackson's 17 last submission -- 18 COMMISSIONER SIDNEY LINDEN: -- we might 19 have been able to get through. 20 MR. JULIAN ROY: -- Ms. Tuck-Jackson's -- 21 with respect I'd like to address it, Your Honour -- 22 COMMISSIONER SIDNEY LINDEN: Yeah, well, 23 you're -- 24 MR. JULIAN ROY: -- because it's 25 important --


1 COMMISSIONER SIDNEY LINDEN: -- you're 2 going to get an opportunity -- 3 MR. JULIAN ROY: -- in light of Ms. Tuck- 4 Jackson -- I'm sorry, I'm talking over you. 5 COMMISSIONER SIDNEY LINDEN: You're going 6 to get an opportunity to examine Detective Sergeant 7 Wright. I'm not sure what his current rank is, but -- 8 MR. JULIAN ROY: Yes, but -- but Ms. 9 Tuck-Jackson chose to elicit evidence from this Witness 10 on -- she said it -- 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. JULIAN ROY: -- she said it in her 13 objection. 14 COMMISSIONER SIDNEY LINDEN: And you 15 brought out some other evidence that Detective Sergeant 16 Wright made that may be inconsistent with what impression 17 I was left with after -- 18 MR. JULIAN ROY: Yes. 19 COMMISSIONER SIDNEY LINDEN: -- that 20 evidence. I thought that was your objective and I think 21 you've accomplished it -- 22 MR. JULIAN ROY: Well, all right. 23 COMMISSIONER SIDNEY LINDEN: And I think 24 you should move on. 25 MR. JULIAN ROY: I apologise.


1 COMMISSIONER SIDNEY LINDEN: That's fine. 2 MR. JULIAN ROY: I apologise. 3 4 CONTINUED BY MR. JULIAN ROY: 5 Q: If you could go back to Exhibit 463, 6 which is the telephone discussion you had with Detective 7 Sergeant Wright. 8 9 (BRIEF PAUSE) 10 11 A: The Tab in my book? 12 Q: It's Tab 26, sir. I'm sorry -- 13 COMMISSIONER SIDNEY LINDEN: 29 14 THE REGISTRAR: 29. 15 16 CONTINUED BY MR. JULIAN ROY: 17 Q: And it's page 18. And this was, sir, 18 something that you raised about doing the talking with 19 guns in one of your answers earlier in your evidence? 20 A: Yes. 21 Q: And it's at the top and Detective 22 Sergeant Wright is saying: 23 "And -- and I'll -- I -- I'll tell you 24 what I was told today. I was told by a 25 guy, it's hard to negotiate with him,


1 and he says we'll do our talking with 2 guns, that's what he said." 3 Do you see that? 4 A: Yes. 5 Q: And you're response is: 6 "Oh my goodness, okay, well, that's a 7 good quote." 8 Do you see that? 9 A: Yes. 10 Q: And you actually -- you actually 11 repeat that that's a good quote a couple of lines down? 12 A: Yes. 13 Q: What did you mean when you said, 14 "that's a good quote"? 15 A: Well, I suppose I meant that that's a 16 fact that should be brought before the Court. 17 Q: That would be a fact that would be 18 helpful in terms of establishing the merits of an ex 19 parte injunction? 20 A: Yes. In the circumstances of this 21 case, yes. 22 Q: And it's helpful because what it 23 refers to is a -- is a direct threat to use a weapon 24 against a police officer, correct? 25 A: Yes.


1 Q: And that is inconsistent with what 2 John Carson told you earlier, isn't that -- is that not 3 right. 4 COMMISSIONER SIDNEY LINDEN: No. 5 MR. DERRY MILLAR: With respect, you have 6 to look at the timing and My Friend knows that there is 7 different timing. John Carson he spoke to in the 8 afternoon. 9 The incident that -- that Mark Wright -- 10 Mark Wright's speaking to him at night and there were 11 things that happened in between. 12 COMMISSIONER SIDNEY LINDEN: Right. 13 MR. JULIAN ROY: No, I -- 14 COMMISSIONER SIDNEY LINDEN: You -- 15 MR. JULIAN ROY: He last talked to John 16 Carson at 4:00 p.m. and I have an understanding as to 17 when that conversation is alleged to have happened. 18 COMMISSIONER SIDNEY LINDEN: Yes. This 19 isn't going anywhere. It's not helping me at all, so I 20 don't want to go any further. 21 I've seen the quote, I've got the 22 transcript, I know what he said. 23 Let's go forward. 24 25 (BRIEF PAUSE)


1 COMMISSIONER SIDNEY LINDEN: This is done 2 in a context of an injunction application. 3 MR. JULIAN ROY: I understand. 4 COMMISSIONER SIDNEY LINDEN: All right, 5 let's move on. 6 7 CONTINUED BY MR. JULIAN ROY: 8 Q: If you can go back to the transcript, 9 please. 10 COMMISSIONER SIDNEY LINDEN: Which 11 transcript? 12 MR. JULIAN ROY: Just in the interests of 13 time, I have a response to the last objection but I'm not 14 going to make it in the interests -- 15 COMMISSIONER SIDNEY LINDEN: No, I want-- 16 MR. JULIAN ROY: -- of time. 17 COMMISSIONER SIDNEY LINDEN: -- you to -- 18 MR. JULIAN ROY: I don't want to be seen 19 as conceding that My Friends are correct. 20 COMMISSIONER SIDNEY LINDEN: You don't 21 have to concede anything, Mr. Roy, you just have to move 22 on. Just -- let's keep going. 23 MR. JULIAN ROY: Well, I'm trying my 24 best. 25 COMMISSIONER SIDNEY LINDEN: That's fine.


1 MR. JULIAN ROY: I'm getting a lot of 2 objections that were overruled earlier -- 3 COMMISSIONER SIDNEY LINDEN: Well -- 4 MR. JULIAN ROY: -- and that's 5 unfortunately delayed my cross-examination and I'm not 6 being critical of anybody, but in terms of how long it's 7 taking, I'm doing my best. 8 COMMISSIONER SIDNEY LINDEN: Carry on. 9 MR. JULIAN ROY: Now, I know it's late in 10 the day and I'm last and it's -- 11 COMMISSIONER SIDNEY LINDEN: Please carry 12 on. 13 MR. JULIAN ROY: -- no one's -- 14 COMMISSIONER SIDNEY LINDEN: Please carry 15 on. 16 MR. JULIAN ROY: Thank you, I appreciate 17 that. 18 19 CONTINUED BY MR. JULIAN ROY: 20 Q: On page 24 of the transcript. 21 22 (BRIEF PAUSE) 23 24 Q: On page 24? 25 A: Yes.


1 Q: There's an answer that begins at the 2 top. 3 A: Yes. 4 Q: And then if you go to the middle of 5 that answer, because in the interests of time I won't 6 read the whole thing, but you're welcome to do that. 7 And I'm going to start where it says "and 8 again on Sunday". 9 "And again on Sunday, Monday night when 10 the officers had the confrontation, 11 thirteen (13) OPP officers with the 12 thirteen (13) Canadian Natives on the 13 boat access ramp down to the lake, the 14 trunk of a motor vehicle that a First 15 Nations person was operating was popped 16 open and a stock of a rifle butt was 17 seen and the First Nations individual 18 went to grab the rifle, and one of our 19 OPP officers put his hand on the butt 20 of his sidearm and another First 21 Nations person told the person who was 22 pulling the rifle out to put it back 23 and he did, closed the trunk, and the 24 officer dropped his hand away from his 25 service revolver."


1 Do you see that? 2 A: Yes. 3 Q: Now, that's a reference to something 4 that happens on Sunday/Monday night? 5 A: Yes. 6 Q: And your discussion with John Carson 7 is Wednesday? 8 A: Yes. 9 Q: This statement, this evidence given 10 by Detective Wright, did you turn your mind to 11 reconciling this evidence with what John Carson had said 12 earlier? 13 COMMISSIONER SIDNEY LINDEN: Not useful. 14 MS. ANDREA TUCK-JACKSON: Mr. 15 Commissioner, I only rise because My Friend, with great 16 respect, must be careful about stating the evidence. 17 Officer Carson told this witness that no weapon was 18 pointed -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MS. ANDREA TUCK-JACKSON: -- at an 21 officer. This excerpt is a suggestion that a rifle is 22 being pulled out of a trunk, nothing further than that, 23 sir. 24 COMMISSIONER SIDNEY LINDEN: There's 25 nothing inconsistent is what you're saying; is that what


1 you're saying? 2 MS. ANDREA TUCK-JACKSON: That's what I'm 3 saying, sir. 4 COMMISSIONER SIDNEY LINDEN: Not 5 inconsistent. And I don't want to start going into 6 whether it is or it isn't because it's too far removed, 7 so. 8 9 (BRIEF PAUSE) 10 11 MR. JULIAN ROY: If I could just have a 12 moment, I'm just -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. JULIAN ROY: -- I'm cutting some 15 other areas that I -- 16 COMMISSIONER SIDNEY LINDEN: That's fine. 17 MR. JULIAN ROY: -- intended to go into. 18 In the interest of time, I'm -- 19 COMMISSIONER SIDNEY LINDEN: Take the 20 moment. 21 22 CONTINUED BY MR. JULIAN ROY: 23 Q: Now, Ms. Tuck-Jackson suggested to 24 you that Detective Wright volunteered evidence regarding 25 colour of right at the injunction hearing; do you


1 remember her suggesting that to you? 2 A: I don't specifically but... 3 Q: You don't recall that? 4 A: I don't recall the specific question 5 by Ms. Tuck-Jackson but proceed. 6 Q: All right. She suggested to you that 7 -- that Detective Sergeant Wright volunteered information 8 concerning colour of right? 9 A: Yes. 10 Q: With respect to the occupiers? 11 A: I don't particular remember that. 12 Q: All right. 13 A: But I -- 14 Q: I can get the quote for you. 15 A: Well, no. I -- I don't dispute it 16 for a moment. I just -- waiting for your question. 17 COMMISSIONER SIDNEY LINDEN: If it were 18 incorrect there would be some lawyers on their feet, but 19 I -- 20 THE WITNESS: Right. 21 COMMISSIONER SIDNEY LINDEN: -- I recall 22 it as well, Mr. McCabe. 23 24 CONTINUED BY MR. JULIAN ROY: 25 Q: I'm going to suggest to you it's not


1 accurate that Detective Sergeant Wright was volunteering 2 anything. He was under oath and required to give the 3 truth, the whole truth -- 4 COMMISSIONER SIDNEY LINDEN: Well, where 5 are you going now? 6 MR. JULIAN ROY: Well, she suggested that 7 -- to this witness that Detective Sergeant Wright should 8 get some kind of stamp of approval -- 9 COMMISSIONER SIDNEY LINDEN: Where is 10 that quote? 11 MR. JULIAN ROY: -- for giving this 12 evidence. 13 COMMISSIONER SIDNEY LINDEN: Where is 14 that -- 15 MR. JULIAN ROY: About colour of right. 16 COMMISSIONER SIDNEY LINDEN: Where is 17 that quote? Where is that quote by the way? I'd like to 18 see the quote. 19 MR. JULIAN ROY: Sure. 20 MS. ANDREA TUCK-JACKSON: Page 7 of the 21 transcript. 22 23 (BRIEF PAUSE) 24 25 COMMISSIONER SIDNEY LINDEN: I need to


1 read the quote. My recollection was he wasn't asked 2 about it and he volunteered it, and that's what her point 3 was. 4 MS. ANDREA TUCK-JACKSON: Page 7, line 5 25. 6 COMMISSIONER SIDNEY LINDEN: I'm sorry. 7 Where is it? 8 MS. ANDREA TUCK-JACKSON: Page 7, line 9 25, of Tab 36. 10 COMMISSIONER SIDNEY LINDEN: Yes, but I 11 still can't -- 12 MR. JULIAN ROY: It's on page 2 -- 201 of 13 the transcript. 14 COMMISSIONER SIDNEY LINDEN: 201? 15 MR. JULIAN ROY: I'm going read from the 16 transcript of the -- of the proceedings yesterday, where 17 Ms. Tuck-Jackson engaged in a line of -- 18 COMMISSIONER SIDNEY LINDEN: No. No. I 19 want to know where the colour of right quote comes from 20 in the transcript. 21 MR. JULIAN ROY: Sure. It's at page 7, 22 line 25. 23 COMMISSIONER SIDNEY LINDEN: Page 7, line 24 25. 25 MR. JULIAN ROY: Yeah. And it's


1 reflected in -- in the transcript of the proceedings 2 yesterday. 3 4 (BRIEF PAUSE) 5 6 COMMISSIONER SIDNEY LINDEN: "... because 7 there was an issue of colour of right. 8 Now, as I recall." 9 Yes? 10 MR. JULIAN ROY: And Ms. Tuck-Jackson 11 asked the following -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN ROY: -- on page 201 of the 14 transcript. 15 COMMISSIONER SIDNEY LINDEN: Right. 16 MR. JULIAN ROY: "Yes. What I'm 17 particularly interested in, he appears 18 to be discussing this toll booth on the 19 road [and right around line 25] I'm 20 going to suggest to you [and there's an 21 answer] Oh yes. Okay. Sorry. 22 Q: He -- that's all right. He 23 volunteered that there is an issue of 24 colour of right in relation to the 25 road. A: Yes."


1 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. JULIAN ROY: And that creates an 3 impression, in my respectful submission, that -- that 4 Detective Sergeant Wright is gratuitously, out of the 5 goodness of his heart, volunteering information -- 6 COMMISSIONER SIDNEY LINDEN: You're 7 trying -- 8 MR. JULIAN ROY: -- that he's bound under 9 oath to provide. Now, I wish Ms. Tuck-Jackson had not 10 made a suggestion about volunteering but she has, in my 11 respectful submission. 12 COMMISSIONER SIDNEY LINDEN: And you're 13 saying -- 14 MR. JULIAN ROY: And I'm entitled to take 15 -- to put that volunteering of evidence in context. 16 MR DONALD WORME: Mr. Commissioner, 17 perhaps -- I'm not necessarily disagreeing with My Friend 18 but he can certainly do that with the Witness and not 19 with this Witness. 20 And it appears to me, in any event, that 21 he is now trying to make an argument against what he is 22 suggesting that the OPP are anticipating that the OPP 23 will argue. 24 And I respectfully suggest that we move 25 on --


1 COMMISSIONER SIDNEY LINDEN: We're 2 getting too far away. 3 MR. DONALD WORME: -- that this is not a 4 matter for argument at this point. 5 COMMISSIONER SIDNEY LINDEN: It's -- 6 yeah. Your point is that he's under oath and he's made 7 this statement? 8 MR. JULIAN ROY: Yes. 9 COMMISSIONER SIDNEY LINDEN: And he has 10 an obligation -- 11 MR. JULIAN ROY: A suggestion was made 12 that he volunteered it. 13 COMMISSIONER SIDNEY LINDEN: And he had 14 an obligation to do so because he was under oath? 15 MR. JULIAN ROY: Yes, he did. 16 COMMISSIONER SIDNEY LINDEN: All right. 17 You've made that point. 18 MR. JULIAN ROY: All right. 19 COMMISSIONER SIDNEY LINDEN: Now move on. 20 MR. JULIAN ROY: I had another example of 21 the same thing -- 22 COMMISSIONER SIDNEY LINDEN: Well -- 23 MR. JULIAN ROY: -- and that's my last 24 question. 25 Thank you very much, Mr. Commissioner, and


1 I thank you, Mr. McCabe. 2 THE WITNESS: Mr. Roy. 3 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 4 Twohig...? 5 I don't mean to be short with Mr. Roy, but 6 it is five (5) after 5:00 and I guess we're all getting a 7 little tired and it's unfortunate that you're last, but 8 that's the way this is -- 9 MR. JULIAN ROY: We all have our unique 10 challenges, Mr. Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Well... 12 MR. JULIAN ROY: I have more than others 13 and -- 14 COMMISSIONER SIDNEY LINDEN: You -- 15 MR. JULIAN ROY: -- more respects than 16 just being last. 17 COMMISSIONER SIDNEY LINDEN: You know it 18 is difficult to be last when there are so many parties 19 and I understand that. 20 Yes, Ms. Twohig...? 21 MS. KIM TWOHIG: Thank you, Mr. 22 Commissioner, I just have a few questions. 23 24 CROSS-EXAMINATION BY MS. KIM TWOHIG: 25 Q: I'd like to begin, first of all, with


1 Exhibit 444(b) Tab 39 which is the conversation that Mr. 2 McCabe had with Inspector Carson. I don't think it's 3 necessary, Mr. McCabe, for you to turn to it there's just 4 a -- 5 A: All right. 6 Q: -- a brief exchange here that I 7 wanted to review. It's page 274. 8 A: It's the conversation with Carson? 9 Q: Yes, Carson and McCabe. And 10 Inspector Carson says, when he's talking about the guns, 11 and we've been over this today which is why I raise it. 12 I'll let you turn to it then, Tab 39? 13 A: Yes. 14 Q: Page 274. 15 A: Yes? 16 Q: And this is the exchange regarding 17 gunfire at the Park and you'll see about a third of the 18 way down the page Inspector Carson says: 19 "I don't want people to think or that 20 your affidavit to suggest that we have 21 been fired upon or any of those kinds 22 of things." 23 And at that point you say: 24 "Well, the information about that will 25 come from you or from the officers."


1 Do you see that? 2 A: And then further down you say: 3 "You know there won't really be any 4 leading questions, it'll be sort of 5 identifying yourself and telling the 6 story." 7 Do you see that? 8 A: Yes. 9 Q: So I take it Inspector Carson was 10 telling you not to put -- make too much of it in an 11 affidavit and at that point you said, Well, it'll be for 12 you to give the evidence? 13 A: Yes. 14 Q: So if he had any concerns about 15 impressions that would be left, you were leaving it to 16 Inspector Carson or another officer to make sure the 17 appropriate qualifications were given? 18 A: That's right. 19 Q: You were asked about issues of -- of 20 colour of right and entitlement to the Park and fairness. 21 And I just wanted to, in the interest of fairness, take 22 you to the transcript of the court proceedings which is, 23 I believe, Tab 36 of your materials? 24 A: Yes. 25 Q: And I just wanted to take you first


1 of all to page 42 which is during your submissions to the 2 court at the conclusion of the evidence. 3 And beginning at line 14 you're talking 4 about how long the injunction would be for if it were 5 granted. And at line 20 it says: 6 "On that date, of course, it would be 7 incumbent upon the plaintiffs to return 8 to seek an extension of the 9 interlocutory order and at that time, 10 of course, the defendants or any others 11 who might feel that they have a right 12 to occupy the Park can attend on notice 13 and make their best case as to why that 14 is so, as to why this occupation of the 15 Park can continue. 16 The issue, if there is an issue, 17 because there's no real knowledge on 18 the part of anyone as to the theory, 19 legal or otherwise, of the occupiers as 20 to why they appear to believe that they 21 have a right to occupy this Park in 22 light of the surrender. If there is an 23 issue as to who owns Ipperwash 24 Provincial Park that will be gone into 25 by the Court at that time and the Court


1 will determine..." Et cetera. 2 Do you recall that submission? 3 A: I -- I don't actually recall the 4 submission but, again -- 5 Q: The transcript speaks for itself. 6 A: -- there it is in the transcript. 7 Yes. 8 Q: Thank you. Turning to page 44 then, 9 the first reference to you on that page, second sentence, 10 you're being asked what you're attempting to do and you 11 say two (2) things. The second line is: 12 "Attempting both to create the 13 mechanism whereby the issue can return 14 to this court in an orderly fashion and 15 also -- and so provide the Defendants 16 with a day in court in which they can 17 explain their position, make their best 18 case." 19 Do you see that? 20 A: Yes. 21 Q: And then at line 14: 22 "That is it would make clear to the 23 occupiers that they have no legal right 24 to be in possession of the Park now 25 before the -- any judicial


1 determination of any claim that they 2 might wish to bring forward." 3 I don't have a particular question but, 4 Mr. Commissioner, I think this is important because My 5 Friends have gone to different transcripts and have drawn 6 Mr. McCabe's attention and the attention of everyone in 7 this room and everyone watching on the webcast to certain 8 passages. 9 And I think it's important that those 10 other excerpts be balanced by certain other passages, 11 which do tend to provide a fuller picture. 12 I won't be long but I do have a couple 13 more. 14 COMMISSIONER SIDNEY LINDEN: Well, I -- 15 MR. DONALD WORME: Let me simply say, Mr. 16 Commissioner, that I find this to be particularly 17 unhelpful. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. DONALD WORME: I have the same 20 objection that I had when others were attempting simply 21 to read portions of the transcript in. We have the 22 transcript, we can all read it, and it doesn't really 23 help to read it. In spite of the -- the reasons that My 24 Friend points out, I suggest that -- 25 COMMISSIONER SIDNEY LINDEN: I'm going to


1 agree with you, Mr. Worme. 2 MR. DONALD WORME: Thank you. 3 COMMISSIONER SIDNEY LINDEN: And I'm 4 going to ask you not to just simply read the transcript, 5 because we can all read it. 6 MS. KIM TWOHIG: Okay. My problem though 7 is, Mr. Commissioner, that I -- I did not object when 8 other people tried to do that, did do that -- 9 COMMISSIONER SIDNEY LINDEN: Well, 10 perhaps -- 11 MS. KIM TWOHIG: -- because I thought 12 they had a point to make, and no one else objected, 13 including Commission Counsel. And in the balance of -- 14 in fairness I -- I think I should just be permitted to 15 highlight at least some of the portions -- 16 COMMISSIONER SIDNEY LINDEN: Perhaps -- 17 MS. KIM TWOHIG: -- that may answer some 18 of the questions that were put to Mr. McCabe. 19 COMMISSIONER SIDNEY LINDEN: I think we 20 should perhaps object in the future for people just 21 standing up and reading excerpts of transcripts because 22 it's not particularly helpful just to read them, just for 23 the sake of putting them on the record, that's not 24 helpful. 25 So, I'm not sure if it's going to serve


1 any useful purpose to have you -- 2 MS. KIM TWOHIG: Well, perhaps I can 3 point out that on page 48 and 51 of the transcripts there 4 are other similar references to the occupiers of the Park 5 having an opportunity to be heard about their -- any 6 theory that they may have as to their right to occupy the 7 Park. 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 That's useful. Okay? Are you -- 10 11 CONTINUED BY MS. KIM TWOHIG: 12 Q: Now, Mr. McCabe, you were asked about 13 whether or not you put forward any views that had earlier 14 been expressed to you by Mr. Taman when you attended at 15 the September 6th Interministerial Committee meeting; do 16 you remember that? 17 A: Yes. 18 Q: Okay. I'd like to take you to the 19 minutes of the meeting, which appear at Tab 11 of your 20 materials, I believe. There are two (2) sets of minutes 21 and I'm referring to the minutes of September 6th, which 22 appear second. 23 A: I'm sorry, the tab again? 24 Q: I thought it was Tab 11. Perhaps I 25 was mistaken.


1 (BRIEF PAUSE) 2 3 Q: I'm afraid it's my Tab 11 but I guess 4 it's not everyone's Tab 11. 5 6 (BRIEF PAUSE) 7 8 A: It appears to be Tab 18. 9 Q: Okay. Wherever they're found, that's 10 fine. 11 A: These are the official minutes. 12 Q: The official minutes -- 13 A: Yes. 14 Q: -- yes. And I believe you said that 15 you had no reason to doubt the accuracy of those minutes? 16 A: Yes. 17 Q: The last three (3) pages, and we're 18 looking at page 2 of the minutes themselves. 19 COMMISSIONER SIDNEY LINDEN: September 20 6th meeting? 21 MS. KIM TWOHIG: 6th, yes. 22 23 CONTINUED BY MS. KIM TWOHIG: 24 Q: This was the only meeting you 25 attended I understand, Mr. McCabe --


1 A: Yes. 2 Q: -- at this time? And you'll see that 3 there was some background apparently that was presented, 4 some updating. And item 3 on page 2 sets out minister's 5 directives. And you'll see the second directive there 6 is: 7 "The Minister agrees that application 8 will be made for an injunction." 9 Is it possible that this was one (1) place 10 that you received instruction to proceed with an 11 injunction as soon as possible? 12 A: Yes. I'm not sure I'm looking at the 13 same place you are, but -- 14 Q: Okay, well I want to make sure that 15 you -- you are there. 16 A: Right. These are the official 17 minutes of the September 6th meeting on page 3? 18 COMMISSIONER SIDNEY LINDEN: Page 2. 19 THE WITNESS: Page 2, I'm sorry. 20 MS. KIM TWOHIG: Page 3. 21 COMMISSIONER SIDNEY LINDEN: Item 3. 22 THE WITNESS: I'm sorry, oh, yes. 23 MS. KIM TWOHIG: Page 2, Item 3. 24 THE WITNESS: Right. 25


1 CONTINUED BY MS. KIM TWOHIG: 2 Q: Do you see that? 3 A: Yes. 4 Q: Yes. So, I take it then that the 5 meeting after those directives were given, involved a 6 discussion of the injunction because at that point that 7 was the directive? 8 A: Yes. That appears to be the case 9 from these minutes, yes. 10 Q: Yeah. So following down then when 11 you made the comment that was attributed to you by Ms. 12 Jai in her notes, that the Ministers can say the AG has 13 been instructed to seek an injunction ASAP, I take it 14 that was not simply a communications issue, but was in 15 fact the instruction that had been communicated at the 16 meeting? 17 A: Yes, apparently so, yes. 18 Q: And did you consider it necessary or 19 appropriate at anytime to question or debate the 20 instructions you received directly or indirectly from the 21 Deputy Minister? 22 A: No. 23 Q: You were asked about your objectives 24 when you made submissions before the Court, and I'm 25 wondering if your objectives were different in any way


1 from those of your client? 2 A: My objectives weren't -- my 3 objectives in seeking the order and so forth, were to 4 implement the -- you know, the instructions of my client. 5 I -- you know, I was aware of the fact that I did have 6 obligations to the Court, which independently of the 7 objectives of my client. 8 Q: And did you at all times, and in 9 particular, in relation to the Ipperwash events, because 10 that's what we're dealing with here, did you intend to 11 act, or did you believe you were acting within the 12 boundaries of your instructions and your professional 13 obligations? 14 A: Yes. 15 Q: Thank you. Those are my questions. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Ms. Twohig. 18 Mr. Worme, do you have any questions? 19 MR. DONALD WORME: Commissioner, I don't 20 -- I don't have anything by way of re-examination and 21 before I thank the witness on behalf of the Commission, I 22 want to take a moment simply to thank My Friends for 23 their extraordinary efforts over the last several days, 24 particularly today, we know it's been a long day. 25 We appreciate the collegiality that has


1 been shown, in spite of the sometimes heated debate. But 2 I think that that speaks more to the commitment that the 3 parties have on behalf of their clients, and I certainly 4 thank them for that. 5 COMMISSIONER SIDNEY LINDEN: I believe 6 that's true. And I want everybody to keep it up, because 7 that's the way professionals act, they argue, but they're 8 civil and they come back to fight another day. 9 So, we will be back in two (2) weeks, and 10 we will continue. We have a two (2) week hiatus now, and 11 we then have a three (3) week continuous session in 12 October, and then a three (3) week continuous session in 13 November, and with a little bit of luck, we'll be 14 finished. 15 MR. DONALD WORME: So, our thanks to Mr. 16 McCabe for his attendance here and his testimony, and 17 thank you, Commissioner. 18 COMMISSIONER SIDNEY LINDEN: Thank you 19 very much, Mr. McCabe, it's been a long day -- 20 THE WITNESS: Thank you, Commissioner. 21 COMMISSIONER SIDNEY LINDEN: -- thank you 22 very much. 23 THE WITNESS: Yes. 24 25 (WITNESS STANDS DOWN)


1 THE REGISTRAR: This Public Inquiry is 2 adjourned until Monday, October 17th at 10:30 a.m. 3 4 --- Upon adjourning at 5:16 p.m. 5 6 7 8 9 Certified Correct 10 11 12 13 14 ________________________ 15 Dustin Warnock 16 17 18 19 20 21 22 23 24 25