1
  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                     August 22nd, 2006
 25  

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

3
  1                   APPEARANCES (cont'd)
  2  Kim Twohig       )              Government of Ontario
  3  Walter Myrka     )     (np)
  4  Susan Freeborn   )
  5  Sheri Hebdon     )     (np)     Student-at-law
  6  
  7  Janet Clermont   )              Municipality of 
  8  David Nash       )     (np)     Lambton Shores
  9  Nora Simpson     )     (np)     Student-at-law
 10  
 11  Peter Downard    )              The Honourable Michael
 12  Bill Hourigan    )     (np)     Harris
 13  Jennifer McAleer  )
 14   
 15  Ian Smith        )              Robert Runciman
 16  Alice Mrozek     )     (np)
 17  
 18  Harvey T. Strosberg, Q.C.)       Charles Harnick
 19  Jacqueline Horvat )
 20  
 21  
 22  
 23  
 24  
 25  

4
  1                   APPEARANCES (cont'd) 
  2  Douglas Sulman, Q.C. )           Marcel Beaubien
  3  Mary Jane Moynahan)     (np)
  4  Dave Jacklin     )     (np)
  5  Trevor Hinnegan  )
  6  
  7  Mark Sandler       )   (np)     Ontario Provincial 
  8  Leslie Kaufman     )            Police
  9  
 10  Ian Roland       )              Ontario Provincial 
 11  Karen Jones      )     (np)     Police Association &
 12  Debra Newell     )              K. Deane
 13  Ian McGilp       )     (np)
 14  Annie Leeks      )     (np)
 15  Jennifer Gleitman )     (np)
 16  Robyn Trask      )
 17  Caroline Swerdlyk )     (np)
 18  
 19  
 20  
 21  
 22  
 23  
 24  
 25  

5
  1                   APPEARANCES (cont'd) 
  2  Julian Falconer  )              Aboriginal Legal
  3  Brian Eyolfson   )     (np)     Services of Toronto
  4  Kimberly Murray   ) 
  5  Julian Roy       )
  6  Clem Nabigon     )     (np)
  7  Linda Chen       )     (np)
  8  Chris Darnay     )     (np)
  9  Sunil Mathai     ) 
 10  Adriel Weaver     )     (np)     Student-at-Law
 11  
 12  Al J.C. O'Marra  )              Office of the Chief
 13  Robert Ash, Q.C. )      (np)     Coroner
 14  William Horton   )     (np)     Chiefs of Ontario
 15  Matthew Horner   )     (np)
 16  Kathleen Lickers )     (np)
 17  
 18  Mark Fredrick    )              Christopher Hodgson
 19  Craig Mills      )     (np)
 20  Megan Mackey     )     (np)
 21  Peter Lauwers    )     (np)
 22  Erin Tully       )     (np)
 23  Michelle Fernando )     (np)
 24  Maanit Zemel     )     (np)
 25  Patrick Greco    )     (np)

6
  1                   APPEARANCES (cont'd)
  2  
  3  David Roebuck    )     (np)     Debbie Hutton
  4  Anna Perschy     )
  5  Melissa Panjer   )
  6  Adam Goodman     )     (np)
  7  
  8  Gary Penner      )     (np)     Allan Percy Howse
  9                                    
 10  
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  1  
  2                     TABLE OF CONTENTS
  3                                                       PAGE NO.
  4  
  5  FINAL SUBMISSIONS BY ABORIGINAL
  6                 LEGAL SERVICES OF TORONTO                    8
  7  FINAL SUBMISSIONS FOR THE HONOURABLE MICHAEL HARRIS        98
  8  FINAL SUBMISSIONS FOR MR. CHARLES HARNICK                 115
  9  FINAL SUBMISSIONS FOR MR. ROBERT RUNCIMAN                 129
 10  FINAL SUBMISSIONS FOR MR. CHRISTOPHER HODGSON             140
 11  FINAL SUBMISSIONS FOR MR. MARCEL BEAUBIEN                 159
 12  FINAL SUBMISSIONS FOR MS. DEBBIE HUTTON                   189
 13  FINAL SUBMISSIONS FOR THE MUNICIPALITY OF 
 14                 LAMBTON SHORES                             242
 15  
 16  
 17  Certificate of Transcript                                 248
 18  
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 24  
 25  

8
  1  --- Upon commencing at 9:03 a.m.
  2  
  3                 THE REGISTRAR:   This Public Inquiry is
  4  now in session, the Honourable Mr. Justice Linden
  5  presiding.  Please be seated.
  6  
  7                       (BRIEF PAUSE)
  8  
  9                 MR. JULIAN FALCONER:   Good morning, Mr.
 10  Commissioner.
 11                 COMMISSIONER SIDNEY LINDEN:   Good
 12  morning, Mr. Falconer.  Mr Roy, good morning.
 13  
 14                       (BRIEF PAUSE)
 15  
 16  FINAL SUBMISSIONS FOR ABORIGINAL LEGAL SERVICES OF
 17  TORONTO:
 18                 MR. JULIAN FALCONER:   Mr. Commissioner,
 19  as the Counsel before me have already indicated it
 20  represents a somewhat special moment for those of us who
 21  poured blood, sweat and tears into this Inquiry to be
 22  standing before you for the last time.
 23                 I have known you historically, Mr.
 24  Commissioner, and I again came to know you even better at
 25  this Inquiry.  I learned many things about you and about

9
  1  myself and about my fellow colleagues because a journey
  2  like this, as small as it is compared to the journey that
  3  Sam George took, and the journey that Murray Klippenstein
  4  and his legal team took, is a journey we keep with us for
  5  the rest of our lives.
  6                 Mr. Commissioner, I want to acknowledge my
  7  client, Aboriginal Legal Services of Toronto, for
  8  providing myself, Julian Roy, Sunil Mathai, an
  9  opportunity to represent such an important client on
 10  important issues.
 11                 Aboriginal Legal Services of Toronto is
 12  managed and directed by Ms. Kim Murray, also a lawyer,
 13  who is here today and who's an integral part of the legal
 14  team.  I like to think to myself that Kim Murray is to
 15  Julian Falconer as Gwen Boniface is to Mark Sandler.  And
 16  I want to emphasize that her work and the work of her
 17  colleagues Brian Eyolfson --
 18                 COMMISSIONER SIDNEY LINDEN:   She's not
 19  going to Ireland is she?
 20  
 21  CONTINUED BY MR. JULIAN FALCONER:
 22                 MR. JULIAN FALCONER:   No, she's not. 
 23  She's not retiring.  She's not resigning.
 24                 Kim Murray, Brian Eyolfson, Mandy Eastman;
 25  these are all people who have contributed greatly to the

10
  1  work of Aboriginal Legal Services and to the work of our
  2  legal team and I simply wanted to acknowledge them.
  3                 Aboriginal Legal Services of Toronto was
  4  granted standing in these proceedings with respect, Mr.
  5  Commissioner, on the basis of its expertise in issues of
  6  policing and issues of racism.
  7                 Needless to say we found some work to do. 
  8  Needles to say issues surrounding systemic frailties in
  9  policing and issues surrounding systemic racism are
 10  abound in this case.
 11                 Having said that there is also good news. 
 12  Important police work conducted by good police officers
 13  who have good intentions are also characterized in this
 14  case.  This isn't only a bad news case.
 15                 The tragedy of the death of Dudley George
 16  is why this Commission was convened but that doesn't take
 17  away from the fact that there are many aspects of the
 18  professionals working in this case who did good work.
 19                 I want to acknowledge at the start that
 20  because of our expertise on issues of policing and racism
 21  that will be the focus of my submissions.  That means of
 22  course that to some extent with great respect, Mr.
 23  Commissioner, I will be disregarding the long-term
 24  picture surrounding the lands.
 25                 Of course our written submissions are

11
  1  before you, pages 7 through 20, cover what Aboriginal
  2  Legal Services of Toronto perceives as the important
  3  relationship between Aboriginal peoples and the land, the
  4  special relationship, the deeply sacred nature of
  5  Aboriginal burial grounds.  All of those have been
  6  canvassed far more professionally by My Colleagues than I
  7  could.
  8                 My focus will be on a shorter term in the
  9  sense of moving to the medium and short-term when it
 10  comes to policing and when it comes to issues of racism
 11  as they permeated and manifested themselves in the events
 12  surrounding September 6th, 1995, when Dudley George died.
 13                 On the screen before you, Mr.
 14  Commissioner, is the medicine wheel.  Now, when My Client
 15  gave me instructions to speak to you, Mr. Commissioner,
 16  about the medicine wheel my throat went very dry and I
 17  became very concerned because for Julian Falconer to try
 18  to provide any insight into the First Nations medicine
 19  wheel is problematic in the extreme.  
 20                 Suffice it to say this, the teachings as
 21  you know, Mr. Commissioner, and as Elders have sought to
 22  taught you, the teachings from the medicine wheel are
 23  completely consummate with the notions of healing that
 24  you've espoused in your opening comments and throughout
 25  these proceedings.  Part of healing are the various

12
  1  directions and teachings the medicine wheel gives to
  2  First Nations people.
  3                 The west is reflection, Mr. Commissioner, 
  4  reflection on what occurred, what we say, Mr.
  5  Commissioner are the facts.
  6                 Now, there can be no healing without
  7  substantive and true reflection and of course to echo the
  8  words of a very excellent counsel such as Mr. Rosenthal
  9  there can be no healing without truth.
 10                 Our submission is directed to assisting
 11  you to ascertain the truth about:
 12                 1.  Whether there was political
 13  interference in the police operations at Ipperwash.
 14                 2.  If there was political interference
 15  how if at all did that political interference play out in
 16  the actions and decisions at OPP Incident Command at
 17  Ipperwash Provincial Park?
 18                 Finally our submissions will convey the
 19  realities of racism within government and within the
 20  police as they pertain to Ipperwash.  
 21                 If I may, Mr. Commissioner, I'd like to
 22  get to the plot.  Now, I often say to counsel that I work
 23  with, in addition to not boring the judge, try to convey
 24  the judge the story that you believe actually unfolded. 
 25  Don't tell a fictional story.  Tell the story you think

13
  1  happened.
  2                 Behind every human dynamic, behind every
  3  tragedy there's a story.  Your effort, of course, as an
  4  investigative body is to piece together that story.  Our
  5  perspective on the story is as follows.
  6                 We say the story begins at the end.  We
  7  say the question how did some forty/forty-five (40/45)
  8  police officers, either in riot gear or tactical gear
  9  along with K9, how did they end up marching on the
 10  occupiers in the dead of night based on fictional
 11  accounts of violence by the occupiers?  There was no
 12  trashing of a private citizen's vehicle by Natives with
 13  baseball bats.
 14                 How did it happen?  We say by focussing on
 15  the end we can work our way backwards and perhaps figure
 16  out the story.  The answer lies not in searching for a
 17  taped conversation in which politicians are caught in the
 18  act of saying, Commissioner O'Grady, Incident Commander
 19  Carson, I want you to do the following.
 20                 There's no smoking gun that makes your job
 21  a piece of cake, Mr. Commissioner, with respect.  Now,
 22  while noteworthy that there is no such smoking gun that
 23  is hardly determinative.  It is naive and facile to
 24  believe that the kind of direction in issue in this case;
 25  the kind of influence by politicians in issue in this

14
  1  case comes in the form of such a smoking gun.  It comes
  2  differently.  It comes nuanced.
  3                 It comes by understanding the human
  4  dynamics of how powerful people influence those below
  5  them.  It comes by understanding the responsibilities of
  6  power.  We say, with respect, the neophyte Harris
  7  government did not understand the responsibilities of
  8  power in September 1995 and thereby breached its
  9  obligations to the people of Ontario.
 10                 And how that breach played out was that
 11  march, that march on those occupiers.  There is a direct
 12  link between how the Harris government failed to
 13  discharge its responsibilities and the march on the
 14  occupiers by the riot squad.  There is a direct link.
 15                 The link is not a circumstantial link. 
 16  It's not a link by exclusion; that is we can't explain it
 17  any other way so this must be how it happened.  We're not
 18  talking inferentially.  We intend to show you, Mr.
 19  Commissioner, that there is a direct link between the
 20  actions of the Harris government and the absolute mess
 21  that was that march by the Riot Squad on the evening of
 22  September 6th, 1995.
 23                 As I said, I want to begin with the end;
 24  the march, the actions of the police.  What I refer to as
 25  the Riot Squad, of course, is formally known as the Crowd

15
  1  Management Unit, CMU.  It wasn't just the CMU, it was the
  2  Tactical Rescue Unit, the TRU team, what colloquially the
  3  public come to know as different forms of SWAT teams,
  4  different forms of tactical teams.
  5                 Four Emergency Response Teams combined to
  6  make a CMU, thirty-two (32) officers.  Eight (8) Tactical
  7  Rescue Unit officers capable of sniper fire, though not
  8  all deployed to do that, but capable of it, joined those
  9  thirty-two (32) making for forty (40) plus two (2) K9
 10  units.  All engaged in the march.
 11                 Now, the march operated in the following
 12  fashion, I say to you, Mr. Commissioner, based on the
 13  evidence you've heard, that march was misguided.  That is
 14  it operated on a false premise.  The things that John
 15  Carson thought happened didn't happen.  There was no
 16  trashing of a car.  There were no fires in the sandy
 17  parking lot.  The threats they perceived as threats
 18  didn't happen.
 19                 Perhaps that's why John Carson ultimately,
 20  out of candour, acknowledged to this court, John Carson,
 21  the Incident Commander, acknowledged to this court that
 22  on reflection, knowing what he knows today, he might not
 23  have marched.  
 24                 Not only was it misguided, the march was
 25  poorly briefed.  You heard from the head of the riot

16
  1  officers that he had not reconnoitred the area.
  2                 Officer Lacroix testified that he had no
  3  expectation of being used so he didn't familiarize
  4  himself with the area that he marched on the dark, didn't
  5  work out logistics, didn't engage in the standard
  6  planning and preparation he might have as head of a Crowd
  7  Management Unit. 
  8                 You'll recall what I thought was
  9  particularly noteworthy evidence when he said, We marched
 10  down the road and the next thing I knew I was at this
 11  fence.  Lack of knowledge of the area.  Poorly briefed
 12  because the TRU team with snipers and observation teams,
 13  the TRU Team, well, they thought that the occupiers had
 14  guns in the form of AK-47's.  They thought they had
 15  Molotov Cocktails.
 16                 When I say, "they thought they had," they
 17  believed there was a reasonable probability that the
 18  people they were marching on possessed these weapons;
 19  that was the TRU Team, the snipers and the observation
 20  teams -- eight (8) officers.
 21                 The CMU Team that they were working with,
 22  the one in charge of it, Officer Lacroix, testified with
 23  surprise that they would think that.  He didn't think
 24  that.  His officers, he didn't think, thought that.  They
 25  were operating on a different premise, that there were no

17
  1  weapons in the hands of the occupiers.  
  2                 How could one (1) set of officers all be
  3  working on different premises and understandings?  Again
  4  I refer to the evidence of Officer Lacroix when he said
  5  the following to you, Mr. Commissioner.  He says:
  6                   "I can see how a TRU member who thinks
  7                   thirty (30) or thirty-two (32) officers
  8                   are marching towards people with AK-
  9                   47's might be jumpy about protecting
 10                   them, might be jumpy in the dark."
 11                 Misguided, poorly briefed, poorly
 12  organized.  You heard from the head of the TRU Team, Kent
 13  Skinner, how he and John Carson agreed that this team of
 14  Crowd Management officers were simply a diversionary
 15  tactic.  They were meant to go down and divert the
 16  occupiers so that the TRU members could get in place to
 17  see what was going on.  From Kent Skinner, the head of
 18  TRU, from his point of view they were simply being used
 19  as a decoy at that stage.
 20                 I say, "poorly organized" because from the
 21  point of view of the guy who was leading them, he
 22  completely rejected that that what was happening. 
 23  Misguided, poorly briefed, poorly organized, finally,
 24  regrettable, Mr. Commissioner, poorly deployed.
 25                 This Tactical Rescue Unit that consisted

18
  1  of observation teams and sniper teams and sniper teams,
  2  the eight (8) officers, they'd never worked with the Riot
  3  Team before.  They've never worked with CMU.
  4                 These two (2) teams that had never worked
  5  before together were sent down the road in the dark.  The
  6  head of TRU said:
  7                   "We were sent down the road in the
  8                   dark, but we had not gotten our
  9                   observation teams in place."
 10                 They were sent down the road in the dark
 11  with no eyes.  They were down in the road in the dark
 12  with no eyes with no ability to communicate with the
 13  occupiers what their intentions were.  Poorly deployed,
 14  poorly deployed.
 15                 The sum total is a show of force by
 16  approximately forty (40) officers that was in the end
 17  almost inevitably going to lead to disaster.  Frankly,
 18  and with greatest of respect to the memory of Dudley
 19  George the only surprise is that more lives weren't lost.
 20                 Now what led to this extraordinary show of
 21  force being deployed in such questionable circumstances? 
 22  The dynamics of the decision making process that led to
 23  this show of force involved by all accounts a
 24  professional, apparently, and a seemingly very reasonable
 25  officer in the form of John Carson.

19
  1                 It's not just how John Carson presents in
  2  this forum because to be honest, Mr. Commissioner, I will
  3  be making submissions about how Mark Wright presented in
  4  this forum, but it ain't the real Mark Wright you saw.  
  5                 On the other hand John Carson does present
  6  as reasonable and when you listen to him on the tapes he
  7  presents as reasonable.  There's not that dissonance in
  8  personalities.  There's not a personality change when he
  9  gets to court.
 10                 So how does a reasonable man like John
 11  Carson end up mismanaging such -- and creating such a
 12  poor operation?
 13                 Now, this was the first critical incident
 14  of a First Nations occupation over which John Carson
 15  presided as an Incident Commander.  Parenthetically, Mr.
 16  Commissioner, from Mike Harris and his office, the
 17  Premier's office, this was his first First Nations
 18  occupation that he personally addressed as the new
 19  Premier.
 20                 Now, how did it get away from John Carson? 
 21  How did it get away from John Carson?  We say the fact of
 22  political interference accounts for much of the mess.  We
 23  say that the interplay between two (2) key events
 24  accounts for that march and accounts for the death of
 25  Dudley George.

20
  1                 And Aboriginal Legal Services of Toronto
  2  flatly rejects, the -- with great respect, Mr.
  3  Commissioner, the facile statement in the reply
  4  submission of Mr. Harnick, former Minister of Native
  5  Affairs, former Attorney General, when he said, "I did
  6  nothing that caused the death of Dudley George".
  7                 Well, with great respect, Mr.
  8  Commissioner, if what we're looking for is Mr. Harnick's
  9  fingerprints on the trigger of Ken Deane's gun, well we
 10  didn't need to start this commission to know that.  What
 11  this is about is the dynamics of the acts or omissions of
 12  politicians that led to the acts or omissions of police
 13  officers.
 14                 The interplay between two (2) key events;
 15  on the one hand, the dining room Meeting, on the other
 16  hand the decision making process that led to the march,
 17  the CMU.  Those two (2) key events, the dining room
 18  Meeting and the CMU are the focus of the two-thirds
 19  (2/3's) of my submissions today.  The last focus is the
 20  issue of racism in the Government and police.  Those two
 21  (2) key events and how they relate, the dining room
 22  Meeting and CMU, explains the mess.  
 23                 Now, I want to first deal with CMU. 
 24  Mr. Commissioner, in our written submissions we've posed
 25  four (4) questions.  Four (4) questions that with the

21
  1  deployment of this level of force should be capable of
  2  easy answer. 
  3                 Now, the four (4) questions that we say
  4  you should be able to answer without even starting a
  5  commission of inquiry given you're talking forty (40) to
  6  forty-five (45) officers marching in the dark, the four
  7  (4) questions are as follows.
  8                 Who of the incident commanders made the
  9  decision to call out the Crowd Management Unit?
 10                 Why is there no record of the decision to
 11  call out the Crowd Management Unit?
 12                 Accepting the distinction for a moment
 13  that the OPP draws, who of the Incident Commanders made
 14  the decision to deploy the Crowd Management Unit?
 15                 Why is there no record of the decision to
 16  deploy the Crowd Management Unit?
 17                 These four (4) questions should have been
 18  capable of answer immediately after the incident.  As you
 19  know, Mr. Commissioner, they are hardly capable of simple
 20  answer.  
 21                 We say that in understanding the answers
 22  to these questions we understand what really went wrong
 23  with the march.  To begin with let me point something out
 24  in terms of the answer to question 2; why is there no
 25  record of the decision to call out the Crowd Management

22
  1  Unit and where is there no record, in question 4, of the
  2  decision to deploy the Crowd Management Unit?
  3                 We say we can be realistic that sometimes
  4  in the heat of the moment decisions get made and notes
  5  don't get taken properly.  But that's not what happened
  6  in this case.  There was a scribe taking minute by minute
  7  detailed note.  The scribe noted down, you'll recall, Mr.
  8  Commissioner, during important command team discussions
  9  how the -- the nature of the menu the officers were
 10  enjoying.  What food they were getting at the Pinery.
 11                 The scribe noted, a scribe for those who
 12  don't know, of course, is someone whose only job is to
 13  take detailed notes while it's all going on.  Between
 14  8:29 and 8:46 that scribe did just that on the night of
 15  September 6th, 1995, but what is more interesting is not
 16  withstanding all of those detailed notes, you can't find
 17  a record of a decision to call out the Crowd Management
 18  Unit or a decision to deploy the Crowd Management Unit.
 19                 And I say, it's the position of Aboriginal
 20  Legal Services of Toronto, is there is a reason for that. 
 21  And the reason is that the decision to call out the Crowd
 22  Management Unit was made outside of the conventional
 23  chain of command and ultimately that decision that was
 24  made outside of the conventional chain of command was
 25  never ratified in any formal way, and ultimately what was

23
  1  a decision made outside of the chain of command simply by
  2  momentum propelled itself into the march.
  3                 Now, that's not pithy, I got that, but at
  4  the same time that's the dynamic that we're dealing with. 
  5  The dynamic that we're dealing with is nuances, how this
  6  happened.
  7                 Now, what I want to emphasize is the key
  8  position to Aboriginal Legal Services of Toronto is the
  9  CMU train left the station prior to 20:29.  There is
 10  absolutely no credible evidence to suggest that the
 11  decision to deploy was actually made by John Carson. 
 12  John Carson says he made the decision, but we can't find
 13  it.  
 14                 Not only can we not find a record of an
 15  actual decision, we can't find a weighing process.  We
 16  can't find an Incident Commander engaged in a weighing
 17  process of the different options in coming up with CMU as
 18  the least form of force.  
 19                 You know, Mr. Commissioner.  You've been,
 20  not only educated in this proceeding but historically,
 21  your life experience, you know that use of force options
 22  by police officers are based on a simple notion, you use
 23  the least force necessary to get the job done.
 24                 That's how we:
 25                 1.  Inform them and educate them on how to

24
  1  cause minimal injury to those you're trying to control
  2  but at the same time ensure public and personal safety.
  3                 My respectful submission to you, Mr.
  4  Commissioner, is that if you look at the scribe notes
  5  between 8:29 and 8:46 you will see a number of things. 
  6  You will see that John Carson gets briefed on some
  7  fragments of information of the conduct of the occupiers. 
  8  
  9                 He spends a lot of time between 8:29 and
 10  8:32. Remember 8:29 is when John Carson comes back to the
 11  Command Post from dinner.  It's the first time he's in a
 12  position of decision making power.  
 13                 Between 8:29 and 8:32 John Carson is
 14  scrambling to call off a decision his Incident Commander
 15  Linton made.  He's trying to get the TRU Team to back off
 16  and then John Carson spends a great deal of time looking
 17  at evacuating the cottages but not evacuating the
 18  cottages.  
 19                 And then John Carson spends time trying to
 20  determine how to deploy CMU; that is, is the kiosk
 21  something that would threaten them when they go own
 22  there?  And then the mechanical act of deploying CMU
 23  occurs.  
 24                 There is nothing that shows us that John
 25  Carson looked at whether there were alternative uses of

25
  1  force that he could have employed to get the job done of
  2  doing what he says he wanted to do which was simply
  3  return the occupiers to the Park.
  4                 For example, did John Carson simply send
  5  some officers down there to determine whether the
  6  occupiers were in the sandy parking lot?  Did John Carson
  7  make an effort to negotiate, to facilitate their re-entry
  8  to the Park?  Were there any forms of lesser force used
  9  or considered?  Did John Carson notify his superior and
 10  say this is the use of force I'm contemplating?
 11                 In my respectful submission none of those
 12  things happened and there's a reason.  The reason is that
 13  the decision to call out CMU, the decision to call out
 14  CMU was one that was actually engaged in by those other
 15  than John Carson.
 16                 Now, you've heard from my various friends,
 17  I'm not going to spend a tremendous amount of time on it,
 18  I simply want to point in a -- I adopt the submissions of
 19  My Colleagues who have already appeared before you, but I
 20  want to add two (2) things.  We have two (2) major
 21  members of the command team that are either 1) prescient,
 22  that is they can predict the future with certainty, or 2)
 23  they knew something that John Carson didn't before John
 24  Carson arrived at the Command Post.
 25                 Firstly, Mark Wright, second in command at

26
  1  8:25 within the first three (3) pages of a nineteen (19)
  2  minute conversation says:
  3                   "We're taking all the Marines down
  4                   now."
  5                 I will show in the next slide how he
  6  defines Marines as the CMU, but when John -- when Mark
  7  Wright, when Mark Wright tells Tim McCabe, the lawyer for
  8  the Attorney General, in a telephone call, "We're taking
  9  all the Marines down now", that is before John Carson is
 10  even on the scene.
 11                 Is Mark Wright prescient?  How does he
 12  conclude as a fact that's going to happen?  8:32, three
 13  (3) minutes after John Carson arrives at Command Post,
 14  Stan Korosec declares:
 15                   "Lacroix is on his way up to do these
 16                   guys."
 17                 How does Stan Korosec know that?  8:41,
 18  Stan Korosec, the one who said he wasn't involved in the
 19  planning, do you recall his evidence, Mr. Commissioner?
 20                   "I was not involved in the planning of
 21                   the decision to deploy CMU."
 22                 Quote, 8:41 in the scribe notes, this is
 23  what the scribe notes say Korosec said.  He said, quote:
 24                   "My team is dressed and ready in the
 25                   rear office."

27
  1                 Well, that sounds like a man that's
  2  involved in the planning.  Why would Mark Wright and Stan
  3  Korosec run from the decision to deploy CMU?
  4                 And when I say "run", I say look at the
  5  evidence of Mark Wright.  Mark Wright testifies that when
  6  he spoke to John Carson on the phone at approximately
  7  8:05 p.m., that the deployment of CMU wasn't even on the
  8  table.
  9                 That's what he testified to.  He said that
 10  the deployment of CMU at 8:05 wasn't even on the table. 
 11  And when I put it to him it was really him and Korosec
 12  who called out CMU, he rejected that notion flatly. 
 13  Korosec, of course, rejects all of this.  He says he had
 14  nothing to do with it. Why would they run from it?
 15                 Now, the next slide that's in front of
 16  you, Mr. Commissioner, simply provides you that
 17  definition of Marines.  The definition of Marines that
 18  Mark Wright conceded.  The definition of Marines that
 19  Mark Wright conceded which was CMU.
 20                 But what is interesting to note is that
 21  the positions of Mark Wright and Stan Korosec in terms of
 22  their place in the command team, placed them uniquely to
 23  make this call.  That is, Mark Wright was second in
 24  command of the entire operation and Stan Korosec headed
 25  the Emergency Response Team, the members of which made up

28
  1  a CMU.
  2                 The evidence in front of you, Mr.
  3  Commissioner, is far from being the case that John Carson
  4  had something to do with this decision, is that between
  5  8:01 and 8:21, the man who would ultimately head up the
  6  Crowd Management Unit, Wade Lacroix, was summonsed by
  7  Korosec to lead that unit.  That's the evidence.
  8                 If you believe Wade Lacroix, the head of
  9  CMU, he said he was summonsed at 8:00.  if you accept the
 10  scribe note, it's 8:21.  Either way, it's before John
 11  Carson arrives at Incident Command.  All of this is to
 12  make the point that it wasn't John Carson in charge, that
 13  reasonable man, deploying of the force, it was people
 14  behind him and around him.
 15                 People far more hawkish than him, but
 16  people who weren't prepared to be accountable; people
 17  with prejudices.
 18                 At 8:10, Hebblethwaite, Sergeant George
 19  Hebblethwaite, who was the second in command of CMU, is
 20  racing to Grand Bend to retrieve his CMU uniform.  That's
 21  his testimony.  You'll recall he testifies about the
 22  thirteen (13) minute trip?
 23                 Now, I've had to race from Grand Bend at
 24  the Oakwood, I've never done it in thirteen (13) minutes. 
 25  I asked him about that.  I said, could your lights have

29
  1  been on?  He said they might have been. 
  2                 George Hebblethwaite was racing, as the
  3  second in command of the Riot Squad, at 8:10 to get his
  4  hard TAC.  The only thing you do with that hard TAC is
  5  march as a riot officer, you don't do anything all.  All
  6  before John Carson gets to the command post.
  7                 Why?  Why would Mark Wright and Stan
  8  Korosec be so anxious?  what was in their minds?  What
  9  was it they were trying to accomplish?
 10                 And this is the story, the story I say,
 11  Mr. Commissioner, with respect, you ought to tell in your
 12  report.  You see, one of the puzzles about the usage of
 13  the police force in this case, one of the puzzles was
 14  always, well, they just went down to contain them.
 15                 If the occupiers went back into the Park,
 16  then they would just be containing them.  So, Mr.
 17  Falconer, you know, your notion or others who argue this,
 18  your notion that Mark Wright or Stan Korosec was behind
 19  trying to engage in a use of force and take the Park
 20  isn't consistent with how CMU was being used.
 21                 So there's a dissonance there.  On the one
 22  hand you have the theory that they were there for
 23  containment, on the other hand you have those of us who
 24  say they were being employed improperly.  
 25                 There is an explanation.  When Mark Wright

30
  1  went down to the sandy parking lot in between 7:40 and
  2  8:00 p.m. that night, and he saw people with bats, he
  3  didn't see them doing anything with the bats.  He claimed
  4  they were holding them menacingly.
  5                 Ultimately, that story morphed into a
  6  story of how eight (8) to ten (10) Natives beat a private
  7  citizen's vehicle with their baseball bats, trashed an
  8  innocent private citizen driving by.  That never
  9  happened.
 10                 But when he went down there and saw eight
 11  (8) to ten (10) occupiers, as he put it, with bats or
 12  clubs, he says he saw them outside the Park. 
 13                 Now, he went to another checkpoint and he
 14  immediately got back to Incident Command at eight
 15  o'clock.  And at eight o'clock, interestingly enough, he
 16  has a conversation with Korosec that results in a calling
 17  out of both Lacroix and Hebblethwaite going for his hard
 18  TAC but every more interestingly he has a conversation
 19  with Carson where he complains -- he complains -- Mark
 20  Wright complains about Linton waffling, between 8:02 and
 21  8:13.
 22                 Mark Wright complains about Linton, the
 23  Incident Commander at the time, complains about him
 24  waffling.  He says to Carson -- he calls the alternate
 25  Incident Commander that's out to dinner, he calls him in

31
  1  front of the Incident Commander in place and says:
  2                   "Linton's waffling.  Don't you say we
  3                   go get these fucking guys?"  
  4                 Now, this reference to profanity, I use it
  5  for a quote, not for effect right now, but to get the
  6  quote right.  We don't need all the regrettable language
  7  Mark Wright used.  We need the ideas he was conveying. 
  8  That's what you need.
  9                 This isn't about controversial or
 10  inflammatory language, Mr. Commissioner, this is about
 11  understanding what was in Mark Wright's head.  He kept
 12  espousing, you'll see it in the scribe notes and you'll
 13  see it in his conversation with Carson, he kept espousing
 14  these guys are committing offences.
 15                   "We got them for mischief, possession
 16                   of weapons dangerous.
 17                   Don't you say we go get these fucking
 18                   guys?"
 19                 Now, Linton's answer is, I need something
 20  in writing.  Now, Linton is the Incident Commander at the
 21  post.  Wright gets frustrated hearing that from the
 22  Incident Commander so he calls the other Incident
 23  Commander who is off duty in front of Linton and says,
 24  This one's waffling, don't you say we go get them. 
 25                 Now, why, why would that matter to Mark

32
  1  Wright?  And here's the story I say you ought to tell,
  2  Mr. Commissioner.
  3                 Mark Wright knew something and so did Stan
  4  Korosec.  They knew that they could not enter the Park
  5  without an injunction.  They knew they would never be
  6  permitted to, so-call, take the Park without an
  7  injunction.  They needed what Mark Wright called a piece
  8  of paper to go in and take the Park.
  9                 But here's what they didn't need.  Here's
 10  what they could do without an injunction.  What they
 11  could do without an injunction is go to the sandy parking
 12  lot and pick up whatever occupiers were out there with
 13  those bats that he says were committing offences, the
 14  offences of course being simply having the bats.
 15                 He saw an opportunity to go get those
 16  fucking guys and thereby remove significant numbers of
 17  the occupiers without a piece of paper.  He didn't need
 18  it.  He kept talking about how they were committing
 19  numerous offences and he complained to Carson right in
 20  front of Linton; Daylight's a-wasting, this guy's
 21  waffling, don't you say we go get them, we got them, we
 22  got them for offences.
 23                 Now, if you look at how we define CMU's
 24  mission, Mr. Commissioner, if you look at how we define
 25  CMU's mission, Wright is quoted at 10:12, Mark Wright

33
  1  advises Sarnia jail he has one (1) -- Mark Wright advises
  2  Sarnia Jail he has one (1) full wing for natives.  One
  3  prisoner van available for twelve (12) people at a time.
  4                 What Mark Wright had in mind -- what Mark
  5  Wright had in mind was they go down there, they get
  6  whoever is out in that sandy parking lot and they give
  7  some business to Sarnia Jail.  That's what Mark Wright
  8  had in mind.
  9                 And that was his way to work without the
 10  piece of paper and that's why he was so impatient.  He
 11  had them.  They had left the zone of protection, the
 12  Park, and they had walked out to the sandy parking lot. 
 13  He had them.  He had them and he was impatient and he
 14  wanted to move.
 15                 In my respectful submission, Mr.
 16  Commissioner, that's the story.  That's the inexplicable
 17  dissonance.  It wasn't about containing.  For Mark
 18  Wright, he had them.  
 19                 Now, that also informs us as to why Mark
 20  Wright was concerned about moving quickly because, of
 21  course, the one (1) danger that could happen, that
 22  happened with the picnic tables earlier that day, is that
 23  the occupiers might just go back into the Park.  He
 24  wouldn't have them any more. 
 25                 In my submission, Mr. Commissioner, the

34
  1  story of this ill advised march is a story of seconds in
  2  commands who had too much authority that was unchecked. 
  3  We -- we talk in the business, and -- and in particularly
  4  in the academic world of policing, about a notion called
  5  pretext policing.
  6                 Now, pretext policing we address in our --
  7  in our submissions and I -- I won't go into too much
  8  detail, but suffice it say this.  All of the
  9  justifications you've heard, the post-facto
 10  justifications; well, we made this decision at 8:46, but
 11  look here, look what happened at 9:15; look what happened
 12  at 9:45 before we actually marched; see, we had another
 13  reason to go.
 14                 Mr. Horton's submission yesterday was -- I
 15  could never articulate it as well he did, John Carson
 16  couldn't find one (1) good reason so he created eight (8)
 17  bad ones.  That is what pretext policing is about.  
 18                 Pretext policing is about there actually
 19  being a broken tail light.  A police officer pulls
 20  someone over and they have a broken tail light so on the
 21  face of it there's a good reason for the actions of the
 22  police officer; that is they're entitled by law to
 23  intervene.  
 24                 But pretext policing is about the fact
 25  that if an officer does that not for the good faith

35
  1  effort to notify the motorist about the broken tail light
  2  or to address it but for another reason.  If the broken
  3  tail light is used as a pretext then it's improper.  It's
  4  an improper exercise of force. 
  5                 To the extent you find that the litany of
  6  events that Mr. Sandler developed in his inventory of all
  7  the different things Mark Wright may have heard when he
  8  was in Incident Command that may have informed, though
  9  none of them are referred to on any record, right?
 10                 To the extent you accept any of those I
 11  say they represent the post-facto justifications inherent
 12  in pretext policing which is, we can find a broken tail
 13  light, but that isn't the answer.  Our system of law says
 14  if you're motivated by an improper purpose as Mark Wright
 15  was in this case, then this will not bail you out.  
 16                 And I want to emphasize that the issue of
 17  pretext policing in this case plays itself out on two (2)
 18  levels.  Firstly, I agree with the submissions of Mr.
 19  Rosenthal and others, and Mr. Klippenstein, that all of
 20  the facts that they've put forward still do not amount to
 21  grounds for that march.  That is, the sum total of all of
 22  these facts do not rise to the level of the deployment of
 23  this kind of force.
 24                 Having said that, that I agree, my
 25  alternative submission -- and I want to emphasize this,

36
  1  is even if you find that some of the things after the
  2  decision to deploy, allegedly at 8:46, even if you find
  3  that some of the things could create some possibility of
  4  something for the police to address, if you find what I'm
  5  going to submit to you that there was an improper purpose
  6  operating, that it was something different, it wasn't
  7  about actually addressing a public safety issue, it was
  8  for something else, then pretext policing is all about a
  9  flat rejection of the police conduct and an insistence
 10  that they do things for valid purposes and that they
 11  don't spend their time reconstructing justifications
 12  after the fact.
 13                 What I want to emphasize at this stage of
 14  -- of my submissions is that the conduct of the police,
 15  the improper purpose that we refer to, Mr. Commissioner,
 16  so we're clear, is actually addressed at length in our
 17  main factum under the title, Losing the Park, at page 72,
 18  paragraph 121.
 19                 The dynamic operating in this case -- page
 20  72 paragraph 121.  The dynamic operating in this case
 21  isn't that surprising, but it does bear out some flushing
 22  out.  That is, what was the improper purpose motivating
 23  these officers?  Do I just say that they're all evil and
 24  they're bad?  No,  something happened, there is context
 25  to this.

37
  1                 Here's the context, pure and simple.  In
  2  the days and months leading up to September 4th, 1995,
  3  before the occupiers took Ipperwash Provincial Park, the
  4  OPP had ample notice that it was their intention, that is
  5  the intention of the occupiers once the campers left,
  6  once the Park closed, to occupy the Provincial Park. 
  7  They had ample notice, we have examples of it.
  8                 Now we're into arguing about well, did we
  9  think it was likely, definite?  We thought it was a
 10  possibility.  The point is, they had ample notice, 1.  
 11                 2.  The occupiers who had occupied the
 12  Army Base weren't a particularly sophisticated bunch from
 13  the point of view of the police.  That is, from their
 14  point of view they weren't dealing with the most
 15  sophisticated individuals such that they should pose a
 16  problem.
 17                 3.  The OPP was receiving a great deal of
 18  pressure from local politicians who claim that they
 19  weren't policing enough, they weren't enforcing enough. 
 20  And you'll recall the evidence of Superintendent Parkin
 21  that yes, on August 11th when we met with Marcel Beaubien
 22  he made clear on behalf of himself personally, right?  
 23                 Remember the reference to "personally," in
 24  contrast to Mr. Beaubien's claim that it wasn't personal? 
 25  Personally, he was frustrated that they were under

38
  1  policing the occupiers and on behalf of his constituents. 
  2  There was local pressure from the community Mayor Thomas,
  3  there was pressure from Beaubien and his constituents. 
  4  There was pressure from the cottagers, under-policing. 
  5  That's the context leading up to September 4th. 
  6                 The response of the OPP, quite properly,
  7  in keeping with their policy is, we're trying to maintain
  8  a level of peaceful coexistence here and we're not going
  9  to enforce against one to fill a political agenda of
 10  another.  It -- to some extent, they were trying to play
 11  it out and let the Army Base situation play itself out
 12  with the Federal Government.
 13                 September 4th, 1995.  Stan Korosec, head
 14  of ERT, the one who ultimately says, "Their day will
 15  fucking come", right?  Stan Korosec is at the Ipperwash
 16  Provincial Park.  The day they expect them to take over,
 17  the occupiers do exactly that, they come in.  There is a
 18  brief skirmish in which a window on a cruiser is broken.
 19                 Stan Korosec, and particularly John
 20  Carson, decide that there is about to be violence on a
 21  serious level and they make a good decision.
 22                 They say to themselves, Let's -- well,
 23  there's only a few campers left, let's get the campers
 24  out, it's a hundred and nine (109) acres of pine trees,
 25  not maples, a hundred and nine (109) acres of pine trees,

39
  1  what's worth getting hurt about?
  2                 They make a good decision.  John Carson
  3  makes a good decision.  He decides to withdraw from the
  4  Park and thus the term, they lost the Park, the OPP lost
  5  the Park, the occupiers began their occupation.  That
  6  dynamic of losing the Park informs everything that
  7  happens in the next two (2) to three (3) days.
  8                 You recall the evidence of Wade Lacroix,
  9  the head of CMU, that in the time period immediately
 10  following the occupation of the Park, Stan Korosec came
 11  to him, as he put it in the trial, and he rejected until
 12  I showed it to him then he accepted it, Stan Korosec came
 13  to him and reached up to him and said, Now, I wonder if I
 14  did the right thing, leaving the Park?
 15                 He agreed that it was like a junior
 16  officer seeking some reassurance he'd done the right
 17  thing.  And Wade Lacroix said to him, of course you did,
 18  no, it's not worth getting hurt over, it's a hundred and
 19  nine (109) acres of pine trees, nothing else there.
 20                 John Carson is asked, he's asked by his
 21  boss, he's asked by Superintendent Parkin, the quotes are
 22  all in front of you, Mr. Commissioner, pages 71 through
 23  74.  He's asked by his boss, he says, The chief's going
 24  to want to know how we lost containment.  And the more
 25  importantly, right, he -- there is a very poignant quote

40
  1  between Parkin and -- and Carson.  You'll see it at 73,
  2  paragraph 122 of our submission.
  3  
  4                       (BRIEF PAUSE)
  5  
  6                 MR. JULIAN FALCONER:   Page 73, paragraph
  7  122 of our main submission.  If you go to the second
  8  quoted page, line 1.
  9                   "PARKIN:   They're going to say we got
 10                   caught by surprise."
 11                 And then I ask:
 12                   "Is that accurate?"
 13                 And Parkin says:
 14                   "Yes, sir."
 15                   "Q:   Well, not."
 16                 That's Carson.  Then Parkin again:
 17                   "They're going to say that we knew this
 18                   was going to happen."
 19                 And I ask him:
 20                   "You're canvassing all the different
 21                   criticisms that are going to be
 22                   levelled at Carson and at you?"
 23                 And he says:
 24                   "It would be criticism against the OPP,
 25                   but I wasn't criticising Carson.

41
  1                   They're going to say we got caught by
  2                   surprise.  They're going to say that we
  3                   knew this was going to happen."  
  4                 You see, the OPP was in a tricky position. 
  5  They were getting it from all angles.  They'd lost the
  6  Park.  Right in the moment that they were accused of
  7  under-policing, they blew it with respect to a bunch,
  8  from their perspective, roughshod occupiers.
  9                 John Carson used the words, We just didn't
 10  have the horses to keep the Park.  
 11                   "We just didn't have the horses to do
 12                   it." That's a quote.
 13                 John Carson's decision was a good
 14  decision.  It was a good decision, but what happens in
 15  the next two (2) days is a good decision is put under
 16  what has to be the single most intense magnifying glass
 17  of John Carson's career, because a good decision on
 18  September 4th became a bad decision at 2:00 p.m. on
 19  September 6th, according to the Premier, personally.
 20                 Premier Harris is critical of the OPP. 
 21  You shouldn't have let this happen.  You should have done
 22  something right away.
 23                 What John Carson knew, which was
 24  discretion was the better part of valour, Mike Harris
 25  personally rejected as a sign of weakness.  What happens

42
  1  to a first time Incident Commander when he hears that his
  2  judgment is being directly called into question by the
  3  most powerful political leader of the Province?  What
  4  happens inside that incident commander's head? 
  5                 John Carson would have us believe nothing. 
  6  I'm not affected by the cottagers.  I'm not affected by
  7  the local politicians and I'm not affected by Mike
  8  Harris.  My name is John Carson and I'm a robot.
  9                 That's what the position advanced by the
 10  OPP totals to.  That's the sum total of their position. 
 11  None of it affected us, we're a robot.  Well, I have
 12  proof that they're not a robot; the march.  Poorly
 13  organized, poorly planned, poorly deployed, poorly
 14  briefed, misguided.  It was a sign of action.
 15                 Mike Harris was pushing against an open
 16  door when he came to the police in the form of Mark
 17  Wright.  Not so with John Carson, but John Carson had
 18  exercised restraint on September 4th, 1995 and where did
 19  it get him?  Where did it get him?
 20                 It got him being reamed out at the highest
 21  levels of government; that's where it got him. 
 22                 COMMISSIONER SIDNEY LINDEN:   That may be
 23  exaggeration.  "Reamed out" is a word that I think you'd
 24  better be careful. 
 25                 MR. JULIAN FALCONER:   Fair enough.  But I

43
  1  say that -- I say, in effect, that's what happened
  2  because this is where I intend to show the interplay
  3  between the dining room and the march. 
  4                 COMMISSIONER SIDNEY LINDEN:   That's fine. 
  5  Just stay with the evidence.  
  6                 MR. JULIAN FALCONER:   Fair enough. 
  7                 COMMISSIONER SIDNEY LINDEN:   I'm
  8  following the story.  Stay with the evidence. 
  9  
 10  CONTINUED BY MR. JULIAN FALCONER:
 11                 MR. JULIAN FALCONER:   Thank you.  This
 12  case when we say, what happened to John Carson?  What
 13  happened to a man who, by all accounts, does appear to be
 14  somewhat of a dove and we use the word 'dove' because we
 15  have Deb Hutton using the word 'hawkish', what happens
 16  when a man by all accounts who seems to be somewhat of a
 17  dove ends up leading this bizarre show of force?  How
 18  does it happen?
 19                 Well, I refer back to a good decision on
 20  September 4th and I say to you, Mr. Commissioner, that
 21  good decision wasn't just second guessed.  Second
 22  guessing is mild.  That good decision was challenged. 
 23  John Carson's judgment was challenged and there is no way
 24  -- there is no way to take any other inference from the
 25  quotes from Ron Fox. He, that is the Premier, is critical

44
  1  of the police action; they should have gone in right
  2  away.
  3                 He -- the clear -- and then this same
  4  criticism is repeated to Coles.  That is at 2:00 p.m. on
  5  September 6th, Ron Fox repeats Premier Harris' challenge
  6  to Incident Command to both Carson and then to Coles. 
  7  You can see this in the table we set up under what we
  8  colloquially refer to as the Voices of the Premier Chart. 
  9  You can find the Voices of the Premier Chart at page 26,
 10  paragraph 53 of our submissions.  
 11                 The express wording -- it's the next page
 12  actually, starting at page 27, and we created this chart
 13  and we call it the voices of the Premier because it
 14  represents from pages 27 to 30 of our submission; it
 15  represents the various different ways messaging was heard
 16  by Incident Command.
 17                 At page 29, the message I'm talking about
 18  that's conveyed at 2:00 p.m., the key message that's
 19  conveyed to John Carson is at page 29.  According to Ron
 20  Fox, Harris said:
 21                   "The OPP in my opinion made mistakes. 
 22                   They should have done something right
 23                   at the time.  And I'm sure it will all
 24                   come out in an inquiry sometime after
 25                   the fact."

45
  1                 That same challenge, that same second
  2  guessing of John Carson is then conveyed to John Carson's
  3  boss in the presence of Carson, Coles.  Fox repeats it.  
  4                   "Okay, the Premier is quite adamant,
  5                   this is not an issue of Native rights
  6                   and in his words, I mean, we've tried
  7                   to pacify and pander to these people
  8                   for too long, it's now time for swift
  9                   affirmative action.  I walked in the
 10                   tail end, Chris,..."
 11                 And that's Chris Coles.
 12                   "I walked in the tail end, Chris, with
 13                   him saying things like, 'well, I think
 14                   the OPP have made mistakes in this one. 
 15                   They should have just gone in.'"
 16                 Now, I respectfully submit to you that
 17  what the Premier has done, what the Premier has done is
 18  the unthinkable.  He's expressed an opinion to someone
 19  who is from the OPP as the Liaison Officer and quite
 20  predictably, in fact I say quite deliberately on the part
 21  of Premier Harris,  that opinion was then conveyed to
 22  Incident Command. 
 23                 We want to know why a swift, affirmative
 24  action happened between 8:00 and 11:00 that night in an
 25  unplanned, poorly-briefed, horribly disorganized fashion. 

46
  1  The answer lies in Mike Harris' challenge to anything
  2  other than swift action. 
  3                 Mike Harris challenged John Carson, You
  4  shouldn't have backed off, you shouldn't have followed
  5  through with the kind of approach you people have
  6  historically taken, pacifying, pandering too long.  
  7                 With great respect, when we want to
  8  understand how political interference played a role in
  9  this case we don't blame Ron Fox for being from the OPP,
 10  a Liaison Officer, because that's what he was.  
 11                 Where do I get the words from the OPP, a
 12  Liaison Officer?  I get them from Mike Harris.  On May
 13  29th, 1996, that's how he described Ron Fox's role.  How
 14  do I know that at least Deb Hutton, Mike Harris'
 15  assistant, knew that that's who he was?  Well, she used
 16  him in that fashion for hours on end at IMC meetings.
 17                 Ron Fox would check with Incident Command. 
 18  Ron Fox would advance the police perspective.  Ron Fox
 19  briefed the Premier on the police perspective.  It wasn't
 20  predictable, it was expected that Ron Fox would convey
 21  the Premier's disapproval to Incident Command.  It was
 22  expected.
 23                 Now, I say challenging John Carson's
 24  judgment, second-guessing John Carson, made John Carson
 25  gun shy, gun shy to stop a train that had left, the CMU

47
  1  train.  John Cason could have stopped that train when he
  2  arrived at 8:29 and how did -- how did he put it?  How
  3  did he put it?  How did he put it?  The way Stan Korosec
  4  put it?  When John Carson arrived he could have called
  5  off the team that was dressed and ready in the rear
  6  office.  Right?
  7                 That's -- that's how Stan Korosec
  8  described his team as dressed and ready.  He could have
  9  stopped that train, but Mike Harris had let him know what
 10  he thought of restraint.  Mike Harris had let him know
 11  what he thought of the old way of peaceful resolution.
 12                 I want to deal with in a little more
 13  detail this dining room meeting.  
 14  
 15                       (BRIEF PAUSE)
 16  
 17                 MR. JULIAN FALCONER:   And this takes me
 18  to the second event.  This dining room has a story to
 19  tell and I say the story's not that complicated.  
 20                 The dining room meeting happened
 21  completely predictably on the heels of an IMC meeting. 
 22  The dining room meeting was the product of another second
 23  in command, Deb Hutton. 
 24                 Deb Hutton left the IMC meeting on
 25  September 6 frustrated and upset.  She might have even

48
  1  have said the words -- she didn't, that's not the
  2  evidence.  This is argument.  This is advocacy.
  3                 She might have said, Daylight's a wasting. 
  4  I can't take this waffling anymore.  She might have said
  5  that, but she didn't say that.
  6                 COMMISSIONER SIDNEY LINDEN:   She --
  7                 MR. JULIAN FALCONER:   You know what she
  8  did say?
  9                 COMMISSIONER SIDNEY LINDEN:   -- didn't
 10  say that.
 11                 MR. JULIAN FALCONER:   She didn't say that
 12  but what did she say?  What she said was:
 13                   "This was a complete waste of my time. 
 14                   This will never happen again."
 15                 COMMISSIONER SIDNEY LINDEN:   Yes.
 16  
 17  CONTINUED BY MR. JULIAN FALCONER"
 18                 MR. JULIAN FALCONER:   She was frustrated
 19  and upset at the lack of action; another second in
 20  command who was upset and frustrated.
 21                 Now, what does a second in command do when
 22  they're upset and frustrated?  Well, in the case of Mark
 23  Wright they call John Carson.  In the case of Deb Hutton
 24  she turns up the volume, she calls Mike Harris.  That's
 25  what she did.

49
  1                 And this is my argument to you.  What she
  2  did was she went to Cabinet which she has access to and
  3  she said, They're not hearing us.  Mike, we have to turn
  4  up the volume. 
  5                 The dining room meeting could only have
  6  been convened at the behest of the Premier's Office.  It
  7  is inconceivable that it was anyone else.  It is
  8  ridiculous to suggest, given the nature and control that
  9  Mike Harris and Deb Hutton exercised over this particular
 10  issue that it was convened by anyone else.  It is
 11  ridiculous.
 12                 Interestingly enough and -- and to be fair
 13  to the evidence, Mr. Runciman said he had actually no
 14  direct knowledge of who convened the meeting, but
 15  interestingly enough, there is a reference by Mr.
 16  Runciman that I found quite telling.
 17                 And that reference can be found at page
 18  43, paragraph 70 of our main submission.  It's a quote
 19  from Mr. Runciman.
 20                 Now, to be fair to the evidence, Mr.
 21  Runciman says, I don't know who actually convened it, but
 22  it sounds reasonable it would have been the Premier's
 23  office.  That was the gist of his evidence, basically. 
 24  He says, It sounds reasonable, but I don't know that for
 25  a fact.

50
  1                 But then he says something at -- and I've
  2  got it set out at page 43 of my submission.  He's asked:
  3                   "Q:   When you say that you reflected
  4                   on the attendance of Premier Harris..."
  5                 Do you see that?
  6                   "...is it fair to say what you were
  7                   trying to convey to the Commissioner
  8                   was that on reflection you might have
  9                   reconsidered having Harris attend that
 10                   meeting?
 11                   A:   Well, that wasn't my -- my role to
 12                   play, having the ability to advise the
 13                   Premier when or when not to attend the
 14                   meeting.  The meeting was called by his
 15                   staff and I attended as requested."
 16                 The meeting was called by his staff and I
 17  attended as requested.
 18                 Runciman believed that meeting was called
 19  by his staff.  He didn't believe as Solicitor General
 20  he's in a position to argue.
 21                 Now, if the meeting was called by Mike
 22  Harris' staff, is it conceivable that Deb Hutton was
 23  bypassed?  It's ridiculous, she wasn't bypassed.  She was
 24  in charge of this brief.
 25                 If the meeting was called by his staff, it

51
  1  was called either on the direct order of Deb Hutton or
  2  with her approval.  Anything else is inconceivable on the
  3  facts that we know on her personal control of this case.
  4                 In my respectful submission, the finding
  5  that ought to be made is that Bob Runciman got it right
  6  and that Deb Hutton, in a fit of frustration, brought all
  7  the players together, all of the players together to turn
  8  up the volume.
  9                 And what Mike Harris did, when he uttered
 10  the magic words, "I want the fucking Indians out of the
 11  Park", at the start of the meeting, was to turn up the
 12  volume.
 13                 And why did he need to turn up the volume? 
 14  From the point of view of Deb Hutton, his second in
 15  command, daylight was a-wasting, they were waffling.
 16                 Tim McCabe said the best I can do is get
 17  an injunction by Friday.  That's not what Deb Hutton
 18  wanted.  The Premier wants them out in a day or two (2). 
 19  He doesn't want a piece of paper, to have another piece
 20  of paper, to have another appeal.
 21                 No, we're a new government.  We don't work
 22  with Aboriginal rights.  This is a law and order issue. 
 23  A political agenda was playing itself out.
 24                 In a free and democratic society, it is
 25  inimical to our principles of democracy for a government

52
  1  to use armed force as a means of completing its political
  2  agenda, but that is precisely what unfolded on September
  3  6, 1995 when Ron Fox, Tom Patrick (sic) and another
  4  female police officer were summonsed to that room as
  5  liaisons.
  6                 In my respectful submission, this was not
  7  a fluke.  Deb Hutton and her staff knew exactly who Ron
  8  Fox was.  They wanted him to hear the message.  And it
  9  worked.  He heard the message.  He was offended.
 10                 Mark Sandler has said, more than one (1)
 11  occasion, and he's right, when you look at the Fox/Carson
 12  conversation on September 6th, 1995, at 2:00 p.m. the one
 13  thing that is clear is that they both wholesale reject
 14  Mike Harris' approach.
 15                 They're apparently offended.  If you look
 16  at Fox's statements and Carson's responses.  These are
 17  two (2) reasonable police officers that find what they're
 18  hearing a bad thing.
 19                 Mark Sandler is right, but the more
 20  interesting question is, when you have your judgment
 21  challenged by the most powerful political figure in the
 22  Province when you exercised restraint, how quick are you
 23  going to be to apply the brakes at 8:29 p.m. on September
 24  6th, 1995 when all of the people under you have got that
 25  train underway?

53
  1                 Now, before -- before -- and you'll see
  2  this at page 62, paragraph 100 of my submission.
  3                 Before, before they understood the level
  4  of heat and the level of intensity, of scrutiny that was
  5  going to come down on their government, before Mr. Harris
  6  and Ms. Hutton understood the extent of it, they spoke in
  7  a matter of fact terms about Ron Fox.  You'll see it at
  8  page 52, paragraph 100 of my submission.
  9                 In a matter of fact fashion, Mike Harris
 10  advises the House, quote:
 11                   "Invited from the OPP was the liaison
 12                   officer who was assigned to that
 13                   committee in these circumstances."
 14                 You recall how Deb Hutton proudly
 15  testified to how she controlled answers by Ministers in
 16  briefings?  That she was the goto person on preparing
 17  briefing books on the issue.  She didn't just prepare
 18  Harris, she prepared others to coordinate with Harris;
 19  that was Deb Hutton's role.
 20                 It isn't surprising that Deb Hutton would
 21  have gotten it right that Ron Fox was invited from the
 22  OPP as a liaison officer.  They didn't know what rode on
 23  that at the time.  They simply declared what they knew in
 24  relation to the IMC meetings.  No one knew.  That is no
 25  one outside of Mike Harris, Deb Hutton and those who were

54
  1  at that meeting, no one knew about the dining room
  2  Meeting.
  3                 But what I want to emphasize is in a
  4  moment of pure clarity about who Ron Fox was it is very
  5  telling how Mike Harris describes Ron Fox before --
  6  before the defensive postures start being adopted about
  7  their knowledge of Ron Fox; matter of fact, invited from
  8  the OPP was a liaison officer. 
  9                 When you ask Bob Runciman to acknowledge
 10  that he knew that he says, Of course, yes.  I called him
 11  that.  I showed him in Hansard where he called him that. 
 12  It wasn't an issue about who Ron Fox was.  Debt Hutton; I
 13  don't recall.
 14                 We don't have any tapes of Deb Hutton so
 15  she doesn't apologize.  She says, I don't recall.  She
 16  can't help us.  She can't help us with the most minimal
 17  basic questions.  Now, either a) because she suffers from
 18  a terrible memory lapse, or b) because she's being self-
 19  serving.  In my respectful submission b) is the
 20  regrettable obvious conclusion on her credibility.
 21                 In terms of the process -- in terms of the
 22  process that took place, it's propriety, that is the
 23  propriety of the dining room Meeting, we don't have to
 24  look very far to understand -- we don't have to look very
 25  far to understand its impropriety. 

55
  1                 A principle in the courtrooms that you are
  2  more than familiar with, Mr. Commissioner, is the concept
  3  of consciousness of guilt.  When we weigh credibility of
  4  individuals we often look at how individuals behave after
  5  they've done something to determine what was in their
  6  minds at the time of the act.
  7                 Why do we do that?  Well, we don't have --
  8  we don't have a way of reading their minds at the time
  9  but we can look at conduct.  Hence, if somebody takes the
 10  standard flatware or the cutlery in their draw and starts
 11  tossing it in the Don River it's probably a good sign
 12  that they used it for something bad.
 13                 If somebody's asked a basic question, Did
 14  you go out that night, and a person is absolutely
 15  insistent, I stayed home, but they were seen out that
 16  night, it's probably a fair indication they're hiding
 17  something bad.
 18                 If somebody's asked, did you have an
 19  informal meeting and they don't tell you about the dining
 20  room, it's because they knew they did something bad.
 21                 With the greatest of respect to the former
 22  Premier when he, on the countless occasions, failed to
 23  disclose the existence of the dining room meeting along
 24  with his Ministers -- not one (1) person breathed a word
 25  about that dining room meeting in the house right up

56
  1  until October 2001.
  2                 A passage of time between May '96, when it
  3  first came up in the house, that is Ipperwash, and
  4  October 2001 the dining room meeting didn't exist.  The
  5  only meeting that Mike Harris personally attended where
  6  decisions were made, the only meeting that Mike Harris
  7  attended in which police officers were present from the
  8  OPP was the liaison officer, wasn't mentioned.
  9                 Lawyers call is consciousness of guilt. 
 10  so my submissions refer to that.  And it is in that
 11  category that I now address what I would say is probably
 12  the most regrettable aspect of this inquiry, that Mike
 13  Harris lied.
 14                 It's regrettable because even those of us
 15  who may not agree with his politics, we all look for
 16  inspiration from our leaders.  Even the leaders we didn't
 17  elect.  And we all expect a standard of conduct and we
 18  hope for it in our democracy because if our -- if we
 19  can't trust our leaders to tell the truth then we're
 20  lost.
 21                 Power is about responsibility.  Is Mike
 22  Harris prepared to have his credibility determined by
 23  you, Mr. Commissioner?  At first blush one would have
 24  thought, yes.  But when you look at the submission that
 25  Mr. Downard put in front of you, at the end of his

57
  1  submissions he says, he says:
  2                   As a formality, you, Mr. Commissioner,
  3                   don't have the jurisdiction to
  4                   determine if Mike Harris lied to the
  5                   people of Ontario in the Legislature."
  6                 That's the position Mr. Downard took in
  7  his submissions.  You don't have the jurisdiction to say
  8  whether he lied or not.  Now, I find that an
  9  extraordinary submission
 10                 I find that an extraordinary submission
 11  for two (2) reasons.  Hundreds of pages are spent by his
 12  counsel telling us how he told the truth and then at the
 13  end he says, By the way, you don't have the jurisdiction
 14  to give the finding that ALST wants.  Not, you shouldn't. 
 15  Not, they're wrong, we're right.  You don't have the
 16  jurisdiction.  I'm not prepared to let you judge my
 17  credibility.
 18                 That's an extraordinary submission.  It
 19  speaks to consciousness of guilt frankly.  I want to back
 20  up.  I want to address the issue of the dining room
 21  meeting and the failure to disclose it.
 22                 Now, the slide in front of you has what
 23  Mr. Harris told us on February 20th, 2006.  February
 24  20th, 2006, I asked Mr. Harris about the failure to
 25  disclose.  He says:

58
  1                   "I didn't disclose the existence of any
  2                   meetings, nor was that the question."
  3                 And you'll understand that I was asking
  4  him about the six (6) months that had passed by between
  5  May and November of '96 when he's in the House and he
  6  never discloses the meeting and his answer to us is, I
  7  was never asked.
  8                 Now, parenthetically I point out that
  9  there's an extraordinary parallel with what Charles
 10  Harnick said about why he didn't ever say in the past why
 11  the Premier -- why he never said in the past that the
 12  Premier had said:
 13                   "I want the fucking Indians out of the
 14                   Park."  
 15                 He said:
 16                   "I was never asked."
 17                 Well, he told you, Mr. Commissioner, that
 18  he was never asked, but on May 29th, 1996, the member for
 19  Scarborough/Agincourt Gerry Phillips asked the following. 
 20  The first day that this matter -- the first day that this
 21  matter was dealt with in a substantive way in the House:
 22                   "Q:   Were you involved in any informal
 23                   meetings where any informal opinions or
 24                   directions were expressed about how
 25                   this matter might be dealt with in

59
  1                   order to ensure that the Ipperwash
  2                   Provincial Park occupation did not
  3                   continue?"
  4                 Were you involved in any informal
  5  meetings?  Gerry Phillips asked the question.  Premier
  6  Harris in the House May 29th, 1996, that same day, in
  7  answer to this question right after this question is
  8  asked:
  9                   "Was I involved in informal meetings? 
 10                   I don't know what an informal meeting
 11                   is.  When I got to bed at night is that
 12                   an informal meeting?  When I sit and
 13                   talk with people is this an informal
 14                   meeting?"
 15                 That's not candour, Mr. Commissioner,
 16  that's gamesmanship.  Before you, Mr. Commissioner, Mr.
 17  Harris testified that against his lawyer's advice he had
 18  made a determination from the outset to be completely
 19  candid and tell all in the House in order to dispel any
 20  notion of political interference.  This isn't telling
 21  all.  This is the opposite of telling all.
 22                 Now, that's May 29th, 1996.  Over a year
 23  later on August 26th, 1997, as the intensity picked up in
 24  terms of demands for explanations as to the decision-
 25  making process that the Government engaged in on August

60
  1  26th, 1997, Mr. Harris said the following about the
  2  decision-making process:
  3                   "The recollection of Ms. Hutton is that
  4                   she had relayed information to me by
  5                   phone and I think everything else is a
  6                   matter of public record.  Any results
  7                   from any of the meetings that took
  8                   place were in Cabinet on Wednesday
  9                   where as you know the Attorney General
 10                   suggested and Cabinet accepted the
 11                   advice and the recommendation that we
 12                   seek an injunction."
 13                 On August 26th, 1997, Michael Harris told
 14  the people of Ontario that the decision by the Government
 15  was a Cabinet decision made in Cabinet.  That is not
 16  true.  That error, which he told you was an unintentional
 17  error was never corrected.  Why? 
 18                 The reason the error could not be
 19  corrected by Mike Harris and Deb Hutton, because she
 20  prepared the answers -- the reason it couldn't be
 21  corrected is it would have necessitated disclosing the
 22  existence of the dining room meeting, consciousness of
 23  guilt.
 24                 Mike Harris and Deb Hutton knew that they
 25  had crossed the line in turning up the volume.  Not only

61
  1  did they knew (sic) that they had crossed the line in
  2  turning up the volume, they knew that the statements they
  3  made, the statement that Mike Harris made, the
  4  indiscreet, repugnant, offensive, racist statement, "I
  5  want the fucking Indians out of the Park", was something
  6  that could never be made public or he'd be ruined.  They
  7  knew it.
  8  
  9                      (BRIEF PAUSE) 
 10  
 11                 MR. JULIAN FALCONER:   In our submissions,
 12  beginning at page 63, Mr. Commissioner, we set out how
 13  the various opportunities presented themselves for Mike
 14  Harris to come clean.
 15                 And it is so important to understand that
 16  this was not a fluke.  I, as an officer of the Court,
 17  have the responsibility in making the submission I'm
 18  making to you today, to honestly canvass the record and
 19  not simply pick a twig here or there to create an
 20  impression of a lie.
 21                 I have to look before I use that word. 
 22  But when you look at the number of chances that Mike
 23  Harris had to come clean and didn't avail himself of
 24  them, when you look at the impropriety of the meeting,
 25  the unique nature of the meeting, it is beyond argument,

62
  1  beyond contention that this was a classic example of a
  2  cover up.
  3                 With respect, Mr. Commissioner, I want to
  4  direct your attention first of all to page 63 of my
  5  submission, paragraph 105.
  6                 I do so for a reason.  I want to explain
  7  the story for you, Mr. Commissioner.  I want to make sure
  8  you get the whole story.
  9                 At page 63, paragraph 105, there is a
 10  reason that this term "informal meeting" was bandied
 11  about so quickly.  There is a reason.
 12                 And the reason is to be found at paragraph
 13  105 in the words of Gerry Phillips.  At line 9, I'm
 14  trying to get right to the quote, because of time.  At
 15  line 9, page 63, paragraph 105, we quote from Hansard on
 16  May 29th, 1996.  Quote:
 17                   "The Premier was never directly
 18                   involved in formal meetings on
 19                   Ipperwash."
 20                 Were the words attributed to Mr. Harris'
 21  press secretary that morning on May 29th, 1996.  Now, I
 22  said I would tell a story and here's the story.
 23                 Mr. Harris came to this Court and he told
 24  you, Mr. Commissioner, that on the morning of May 29th,
 25  1996, a number of events happened that put this matter in

63
  1  the House, that propelled the matter far more into public
  2  scrutiny.
  3                 There was a newspaper article in the
  4  Toronto Star on the morning of May 29th, 1996,
  5  identifying Superintendent Ron Fox as a police officer
  6  from the OPP who was involved in IMC meetings.
  7                 Mr. Harris testified before you, Mr.
  8  Commissioner, he testified that he remembered that
  9  morning.  He remembered him and Hutton and his other
 10  staff being shocked, the term he used was "shocked", at
 11  the fact that Ron Fox was an officer and that he had been
 12  at the IMC meeting and that he had been at the dining
 13  room meeting.
 14                 That was the gist of the evidence.  You'll
 15  recall, though, the cat and mouse that I had to engage in
 16  to get him to repeat that.
 17                 With respect, Mr. Commissioner, you're
 18  entitled to weigh that cat and mouse in credibility
 19  considerations, and I ask you to do that.
 20                 I simply asked him to repeat what he told
 21  you in the morning.  He didn't want to do it.
 22                 Mr. Commissioner, in acknowledging that he
 23  directed his mind to both the issue of who Ron Fox was
 24  and the convening of the dining room meeting on the
 25  morning of May 29th, 1996, it became impossible for Mr.

64
  1  Harris to explain how, by the afternoon of May 29th,
  2  1996, he gave the answer he did about informal meetings
  3  and being in bed.
  4                 But I want to give you context, Mr.
  5  Commissioner, and the context is to be found at paragraph
  6  105.  What happened was, that as a means of damage
  7  control, the press secretary commented that morning,
  8  quote:
  9                   "The Premier was never directly
 10                   involved in formal meetings on
 11                   Ipperwash."
 12                 You see that at line 8 through 10, right? 
 13  Now, Gerry Phillips, never known for being a lightweight,
 14  picked up on the fact that the press secretary referred
 15  to formal meetings.
 16                 So he did the obvious.  He asked Mr.
 17  Harris, what about informal meetings?  And that triggered
 18  the bedtime response.  That's the story; that's what
 19  happened.
 20                 Now, at page 63 we identify two (2)
 21  opportunities Mr. Harris had on May 29th, 1996, to tell
 22  the truth about the dining room meeting.
 23                 The first one actually came when Mr.
 24  Harris explained, when he explained to the House that all
 25  of the briefings he obtained were in the context of the

65
  1  IMC meeting.
  2                 He came to Court here and he told you, Mr.
  3  Commissioner, that the dining room meeting was a method
  4  for him to get a status update.
  5                 And so on May 29th, 1996, he mislead the
  6  House when he told the House that all the briefings he
  7  got were through the IMC meeting.
  8                 On May 29th, 1996 he had an opportunity to
  9  say and I was also briefed in the dining room but he
 10  chose not to.  The very meeting he was shocked about that
 11  morning had apparently slipped his mind.  That was the
 12  first chance.  
 13                 The second chance was when Gerry Phillips
 14  asked the direct question.  The second chance was when
 15  Gerry Phillips asked the direct question, were you
 16  involved in informal meetings?  His answer he simply
 17  disclosed nothing.
 18                 Now, Mike Harris didn't only have two (2)
 19  chances.  He had a third chance.  You see it at page 65
 20  of our submissions, paragraph 109.  At page 65, paragraph
 21  109 we see that Mike Harris on November 6th, 1996 is
 22  asked a series of questions again by Mr. Gerry Phillips,
 23  Member of Scarborough-Agincourt.  
 24                 Mr. Phillips doesn't accept Mr. Harris'
 25  explanations and at page 66, line 17 of the transcript;

66
  1  that is page 66 of my factum.  If you go to the second
  2  part you see line 16, it's two-thirds of the way down the
  3  page you see a line 16.
  4                 Mr. Harris says, on November 6th, 1996:
  5                   "I have given all of the information
  6                   that I've been aware of every day at
  7                   every instance and continue to do so
  8                   going back to the events over a year
  9                   ago."
 10                 Mr. Harris declares to the people of
 11  Ontario he's told all.  He's told all but he hasn't
 12  revealed the meeting in which he made the final call
 13  about the injunction.  He hasn't revealed the meeting he
 14  was shocked about the morning of May 29th, 1996.  He
 15  hasn't revealed the only meeting in which he was in the
 16  same room as police officers over Ipperwash and he hasn't
 17  revealed the meeting in which he said "I want the fucking
 18  Indians out of the Park".
 19                 It is absurd for Premier Harris to appear
 20  before you, Mr. Commissioner, and say he was never asked. 
 21  It is absurd for him to make that in a submission but it
 22  speaks to the credibility of his position. 
 23                 Now, that's three (3) chances.  Mr. Harris
 24  had a fourth chance to come clean, page 68, paragraph
 25  113; that is August 26th, 1997.  This was the fourth

67
  1  occasion where he is asked what happened and Mr. Harris
  2  describes a cabinet meeting that never took place.
  3                 The Attorney General suggested and cabinet
  4  accepted a process that never happened.  Ipperwash never
  5  went to cabinet in that time period, September 4th to
  6  September 6th, 1995.  In fact, the meeting that Mike
  7  Harris and his staff convened was in an informal setting
  8  in the dining room.  Cabinet never considered it. 
  9                 What Mike Harris did on August 26th, 1997,
 10  is create a veneer of legitimacy that he never corrected. 
 11  How many times did Mike Harris address Ipperwash without
 12  ever revealing the existence of the dining room meeting? 
 13  How many times was he present in the House when questions
 14  were asked about Ipperwash prior to October 9th, 2001? 
 15  Seventeen (17) times.  Seventeen (17) times Mike Harris
 16  could have told the truth and chose not to. 
 17                 At page 29, paragraph 57 of our reply
 18  submission, I don't know if you have it there, it's the
 19  thin -- if you could turn to page 29, paragraph 57.  Page
 20  29, paragraph 57 of our reply submission we actually set
 21  out all of the appearances Mike Harris made before the
 22  Legislature on the issue of Ipperwash.  
 23                 There are three (3) dates missing from
 24  that list of appearances which I have incorporated in my
 25  submission and, of course, have misplaced.  The three

68
  1  dates plus these dates add up to twenty (20) occasions
  2  between May 29th, 1996 and October 9th, 2001.  
  3                 Suffice to say, Mr. Commissioner, in all
  4  these times, and you see the table in our reply
  5  submissions at page 29, paragraph 57, you see all the
  6  dates?
  7                 May 29th, November 6th, December 4th,
  8  April 22nd, April 30th, on and on, through three (3)
  9  tables.  Three (3) tables, three (3) charts, on and on,
 10  all these appearances.
 11                 Each time, the dining room meeting is
 12  never referred to, even though each time opposition keeps
 13  pressing him on what was the process you used to make
 14  your decisions.
 15                 And the only process that Mike Harris ever
 16  used to make a decision on Ipperwash of substance was the
 17  dining room meeting, but it was never disclosed.
 18  Consciousness of guilt.
 19                 On October 9th, 2001, when notes from one
 20  (1) of the bureaucrats actually came out, her notes were
 21  revealed in the litigation and she referred to a meeting
 22  and Mike Harris, the one who said informal meeting, when
 23  I'm in my bed, is that an informal meeting?  That man who
 24  says he was never asked, on October 9th, 2001 he said the
 25  following:

69
  1                   "There was a meeting, as you know, that
  2                   I indicated I attended.  Mr. Scott,
  3                   whatever his name is, at the time, I
  4                   wasn't aware he was at the meeting.  It
  5                   was an informal meeting."
  6                 Mike Harris admits that which had been
  7  sought from him for years and years and years.  That he
  8  had been at an informal meeting with police officers
  9  because Mr. Scott, of course, is the Patrick Scott, the
 10  OPP officer who was assisting Ron Fox at that meeting.
 11                 I apologize.  Scott Patrick.  I've got it
 12  wrong, just like Mr. Harris did.  Scott Patrick, a police
 13  officer is who he is referring to.
 14                 And in my submission, what you -- what you
 15  can direct your mind to, with respect, and your findings,
 16  is that on October 9th, 2001, Mr. Harris had no
 17  difficulty classifying that dining room meeting as an
 18  informal meeting.
 19                 Bookends, Mr. Commissioner, bookends.  We
 20  go to May 29th, 1996.  Were you at an informal meeting? 
 21  No answer, obfuscation, concealment and then October
 22  2001, I was at an informal meeting.
 23                 Why fail to conceal -- why fail to
 24  disclose the meeting?  Why hide the meeting?  What would
 25  have prompted a Premier to engage in this level of

70
  1  deception?
  2                 If we're going to responsibly tell this
  3  story, it's essential that we provide the motives, the
  4  problem in what Mike Harris knew he did.
  5                 In the legislature on May 29th, 1996, Mike
  6  Harris announced to the House:
  7                   "When it came to whatever might have
  8                   been the response to that, clearly my
  9                   understanding would have been that
 10                   there is a matter for the OPP to deal
 11                   with."
 12                 Now, I have triple dots, but you can check
 13  the Hansard extract, because it was put -- it was put to
 14  him.  
 15                   "Therefore we would not have offered
 16                   any opinion."
 17                 Mike Harris told the people of Ontario,
 18  not only did he not give an express direction, but he
 19  never offered an opinion to the OPP.  That's what he told
 20  the people of Ontario on May 29th, 1996.
 21                 Is that viable based on the evidence
 22  before you, Mr. Commissioner?  Is that viable?
 23                 The staffer for the Attorney General
 24  Harnick described the opinion that Mr. Harris expressed
 25  in the following terms.

71
  1                   "The opinion that Mr. Harris expressed
  2                   was he was disappointed that the OPP
  3                   had allowed the situation to get this
  4                   far."
  5                 This is Mr. Moran.  Far more a loyalist to
  6  Mr. Harris than otherwise.  Mr. Taman, the Deputy
  7  Attorney General, described the opinion that Mr. Harris
  8  expressed at the dining room meeting as following:
  9                   "He would have thought that the police
 10                   would have the Aboriginal citizens out
 11                   of the Park by this time.  He expressed
 12                   that opinion at the meeting."
 13                 There were more opinions expressed.  You
 14  know -- you -- I reviewed a portion of the transcript
 15  with you already but it is essential to appreciate, I say
 16  to you, Mr. Commissioner, that Ron Fox's description to
 17  both John Carson and then to Chris Coles of the same
 18  words and then Mike Harris' actual adoption when Mark
 19  Sandler cross-examines him that in essence he was -- did
 20  have those concerns and may have shared those concerns,
 21  tells us unequivocally that he did express the opinion.
 22                 As Ron Fox put it:
 23                   "The OPP in my opinion..."
 24                 These are Harris' words at the dining room
 25  meeting.

72
  1                   "The OPP in my opinion made mistakes. 
  2                   They should have done something right
  3                   at the time.  He said that I'm sure it
  4                   will all come out in an inquiry
  5                   sometime after the fact."
  6                 He expressed an opinion to the police.  It
  7  wasn't just Ron Fox.  Charles Harnick was asked as well
  8  whether the Premier expressed some dissatisfaction over
  9  the OPP's performance and Mr. Harnick said, quote:
 10                   "Well, I think I tend to agree with
 11                   that.  Given what I recollect is him
 12                   coming to the conclusion that once in
 13                   the Park there was no way to get them
 14                   out."
 15                 And the premise that he agreed with was
 16  that the Premier had expressed dissatisfaction; opinion,
 17  opinion, opinion.
 18                 Mike Harris knew that he crossed the line. 
 19  Deb Hutton, who prepares him in the House, knew that he
 20  crossed the line.
 21                 In my respectful submission there was only
 22  two (2) directions Mike Harris could go.  He could tell
 23  the truth on May 29th, 1996, just flat out say what
 24  happened and take his lumps or he could engage in a
 25  cover-up. 

73
  1                 Now, with respect, the Webster's
  2  Dictionary tells us a cover-up is a device or stratagem
  3  for masking or concealing.  Quote:
  4                   "A usually concerted effort to keep an
  5                   illegal or unethical act or situation
  6                   from being made public."
  7                 Seventeen (17) times in the House.  In my
  8  respectful submission this fits every definition of
  9  cover-up.  This has no hallmarks of being candid with the
 10  people of Ontario.  The reason Aboriginal Legal Services
 11  of Toronto seeks what we seek from you, Mr. Commissioner,
 12  is that at the heart of this Inquiry, at the heart of
 13  this case is the role that Mike Harris and his government
 14  played in Ipperwash.
 15                 Now, if he was not candid with the people
 16  of Ontario through the only method he accounts for his
 17  behaviour, in the House, then that finding needs to be
 18  made.  The direction the medicine wheel sends us in,
 19  reflection is about telling the truth even if that truth
 20  is hard to say.  
 21                 What do we hear from Mr. Harris at page 27
 22  of his submissions?  Quote:
 23                   "As a formality, it is also
 24                   respectfully submitted that the finding
 25                   requested by ALST is plainly beyond the

74
  1                   scope of this Inquiry's terms of
  2                   reference."
  3                 The finding we seek, Mr. Commissioner, is
  4  quote:
  5                   "The existence and circumstances of the
  6                   dining room meeting were deliberately
  7                   concealed from the people of Ontario by
  8                   both Attorney General Harnick and
  9                   Premier Harris despite direct questions
 10                   on the floor of the Legislature that
 11                   should have prompted references to the
 12                   meeting."
 13                 You'll find that finding at page 145 of
 14  our main submission, paragraph 6.
 15                 Does Mr. Harris say page 145 paragraph 6
 16  of our findings -- it's paragraph 238 of the -- the
 17  submission, but it's number 6 of our findings, page 145
 18  of our main submission.
 19                 COMMISSIONER SIDNEY LINDEN:   Yes, I hear
 20  you.  I hear you.
 21  
 22  CONTINUED BY MR. JULIAN FALCONER:
 23                 MR. JULIAN FALCONER:   Does Mr. Harris
 24  say, Well, their request that that finding happened is
 25  ridiculous?  They're wrong.  I didn't deliberately

75
  1  conceal anything?  Well, he does say that, but then he
  2  says something else.  He says, By the way, you don't have
  3  jurisdiction to decide if I was telling the truth anyway. 
  4                 That, with great respect, Mr.
  5  Commissioner, is completely duplicitous.  He doesn't want
  6  to put his veracity to the test.  He doesn't trust the
  7  process.  His veracity is being tested.  Declining that
  8  jurisdiction to say whether the Harris Government told
  9  the truth about their role Ipperwash, to decline that
 10  jurisdiction is to do a disservice to the memory of
 11  Dudley George, to Sam George and his family, and to all
 12  of the participants, to be honest, including myself. 
 13                 And I strongly urge you right or wrong --
 14  if ALST is wrong, tell us we're wrong but the notion that
 15  we should engage in a legal technical battle about your
 16  jurisdiction on whether Mike Harris told the truth is
 17  probably the best sign of whether he told the truth.
 18                 I have half an hour left in my
 19  submissions, actually about thirty-three (33) minutes,
 20  but what I would ask is --
 21                 COMMISSIONER SIDNEY LINDEN:   No, you've
 22  got less than that but you've got just under a half hour
 23  left but carry on.
 24                 MR. JULIAN FALCONER:   This could be one
 25  (1) of our last discussions about my time.

76
  1                 I -- it's all becoming very -- I'm going
  2  to miss you, Mr. Commissioner.  I was wondering could
  3  this be an appropriate time for a break because I'm
  4  moving onto another area?
  5                 COMMISSIONER SIDNEY LINDEN:   We've
  6  decided to just let the submissions go --
  7                 MR. JULIAN FALCONER:   Motor on? 
  8                 COMMISSIONER SIDNEY LINDEN:   -- until
  9  they're finished. 
 10                 MR. JULIAN FALCONER:   That's fine. 
 11                 COMMISSIONER SIDNEY LINDEN:   We don't
 12  want to throw our whole schedule off.  So I would
 13  appreciate if you could just -- 
 14                 MR. JULIAN FALCONER:   Certainly. 
 15                 COMMISSIONER SIDNEY LINDEN:   -- continue
 16  and finish.  
 17  
 18  CONTINUED BY MR. JULIAN FALCONER:
 19                 MR. JULIAN FALCONER:   All right. 
 20  Mr. Commissioner, I've spent a great deal of time
 21  describing the CMU decision and the dining room meeting. 
 22  I've described them as the two (2) key events.  I've
 23  described in detail why I think the decision making --
 24  what the decision making process was that resulted in the
 25  two (2) key events.  

77
  1                 But I want to emphasize at the start of
  2  this area that while I've described in detail what I
  3  think the decision making process was, the fact that the
  4  decision making process with respect to CMU and the fact
  5  that the decision making process with respect to the
  6  dining room are shrouded in mystery probably speaks
  7  volumes as to (a) the willingness of those in positions
  8  of authority to take accountability for what they did and
  9  (b) their discomfort with what they did.
 10                 Now, there are parallels that I say are
 11  crucial to understanding the process that unfolded on
 12  September 6th, 1995.  Both the dining room meeting and
 13  the decision to march represent the final call to action
 14  by the Government and the police.
 15                 Both the dining room meeting and the
 16  decision to march represent ad hoc decision making for
 17  which there is absolutely no record.  Both the dining
 18  room meeting and the decision to march were the products
 19  of seconds in commands whose role in both the dining room
 20  meeting and the decision to march were instrumental. 
 21  Frustrated seconds in command.  Both the dining room
 22  meeting and the decision to march were born of an
 23  exaggerated sense of urgency.
 24                 And most importantly from the point of
 25  view of understanding how racism operated in this case,

78
  1  both the dining room meeting and the decision to march
  2  were the product of a desire to appease the non-
  3  Aboriginal community.
  4                 I referred to frustrated seconds in
  5  command.  It bears note that whether you look at Deb
  6  Hutton or you look at Mark Wright, the comments they make
  7  are very telling on September 6th, 1995.  Deb Hutton
  8  leave IMC and minutes later the dining room meeting is
  9  convened.  Minutes.  Deb Hutton leaves IMC and this is
 10  what she says, the second in command to Harris, quote:
 11                   "This is the most useless meeting I
 12                   have ever attended.  It was a complete
 13                   waste of my time."
 14                 Frustrated with inaction.  Mark Wright,
 15  second in command to John Carson, on the evening of
 16  September 6th, 1995, right before -- immediately before,
 17  by all accounts, the decision to march is made, Mark
 18  Wright says the following about Incident Commander Linton
 19  and his failure to act, failure to take swift affirmative
 20  action, he says:
 21                   "Oh fuck, I don't know.  Waffle.  We'll
 22                   be here 'til fucking daylight figuring
 23                   it out."
 24                 And you'll recall he said, "daylight's a-
 25  wasting".  

79
  1                 Now, I spoke of appeasing the non-
  2  Aboriginal community.  Well, Deb Hutton kept sending the
  3  same message over and over again at every IMC meeting, in
  4  every place possible, the Government through Beaubien,
  5  the message that was received repeatedly, there is to be
  6  no different treatment of the people in this situation. 
  7  In other words, Native as opposed to non-native.
  8                 That is a message of assimilation.  That
  9  is a message meant to appease the non-Aboriginal
 10  community.  We must be seen to be acting.  This isn't a
 11  Native rights issue.  This is a law and order issue.
 12                 Mark Wright.  Mark Wright just left -- he
 13  just left the company of what he called the irate
 14  citizens in his telephone call with Tim McCabe.  Mark
 15  Wright backed away from that characterization when he was
 16  before you in this court, but I ask you to have careful
 17  regard to what he said to Tim McCabe in and around 8:00
 18  p.m. on the night of September 6th, 1995.  He described
 19  the people as irate.  And he said to John Carson, "well,
 20  don't you want to be briefed about the citizens?".  
 21                 We also have a number of irate citizens,
 22  non-Aboriginal community demanding action.  I say an
 23  exaggerated sense of urgency.  I say an exaggerated sense
 24  of urgency that is communicated in no uncertain terms to
 25  those in a position to make decisions who aren't moving

80
  1  fast enough.
  2                 Deb Hutton, quote:
  3                   "This may be the time and place to act
  4                   decisively.  He wants them out in a day
  5                   or two."
  6                 The second in command is conveying a sense
  7  of urgency to all who were listening.  You recall Julie
  8  Jai's evidence?  
  9                   "With this sense of urgency,
 10                   negotiation, facilitation, that's not
 11                   an option we could put up.  It was
 12                   obvious to us we weren't expected to."
 13                 Mark Wright: 
 14                   "Daylight's a-wasting.  Don't you say
 15                   we go get those fucking guys?"
 16                 Exaggerated sense of urgency for the
 17  dining room and for the march.
 18                 In both cases, whether we're talking about
 19  the dining room meeting or that decision to march, in
 20  both cases, the Premier's personal views are
 21  communicated.  Mike Harris' personal views are
 22  communicated to bureaucrats.  Mike Harris' personal views
 23  are communicated to Incident Command.
 24                 You'll recall the extraordinary reference
 25  on September 5th, 1995 by Wade Lacroix in talking to John

81
  1  Carson.  You -- I pause here to reflect for a moment on
  2  Wade Lacroix.  One of the classic blunders in this case
  3  had to be having the guy that headed up the march on the
  4  occupiers be the same one in charge of political
  5  communications with the local MP.
  6                 That was ane extraordinary show of poor
  7  judgment and simply makes the point that the John Carson
  8  that made a good decision on September 4th, had been
  9  neutered by September 6th.  Bad decisions were being made
 10  left, right and center.
 11                 What does Lacroix, on the day before the
 12  march, say to John Carson about the Premier's views?
 13                   "Harris has involved himself and are
 14                   quite uptight about it.
 15                   CARSON:   Okay."
 16                 Not, Carson, Don't tell me that, Wade. 
 17  What's that got to do with our work.  Look, I want you to
 18  focus on this not that. 
 19                 No, Carson receives all information.
 20                   LACROIX:   So I would say the signal is
 21                   that we're going to end up evicting.
 22                   CARSON:   I would suspect.
 23                   LACROIX:   So anyhow, it sounds like
 24                   the Government is onside.
 25                   CARSON:   Oh, good."

82
  1                 The robot who doesn't care.  Nonsense. 
  2  Absolute artifice.  Of course they care.  Of course they
  3  care that their political masters are onside, of course
  4  they do.
  5                 Mr. Commissioner, it is like suggesting
  6  that children don't care what their parents think.  It's
  7  like suggesting those we oversee don't care what our
  8  oversight bodies think, police officers don't care what
  9  the Solicitor General thinks.  It's ridiculous.  The
 10  Incident Commander is getting direct knowledge of what
 11  Mike Harris thinks about his work.
 12                 Now, we say that that entire process, that
 13  entire process led to the parallel, the parallels between
 14  the dining room and the CMU ultimately linking them up. 
 15  The dining room led to the march.  The dining room led to
 16  CMU. 
 17                 We say, Mr. Commissioner, Mike Harris'
 18  wishes when he turned up the volume on September 6th,
 19  1995, turned into action.  Ill-advised, ill-considered,
 20  silly, nonsensical action.  It wasn't riot officers
 21  discharging their duty.  It was officers engaged in a
 22  riot.  It was a mess, a pure, simple mess.
 23                 John Carson wasn't operating with the
 24  decisive, substantive, critical decision-making powers
 25  he'd been given, because somebody above him took them

83
  1  away.
  2                 We say, Mr. Commissioner, that the
  3  suggestion by Mr. Harris, the suggestion by Mr. Harris
  4  that he gave no direction is no different, is no
  5  different than what I've put to Ron Fox, what I put to
  6  Ron Fox on July 18th, 2005.
  7                 The Archbishop of Canterbury, Thomas
  8  Beckett, that famous quote, when it was said:
  9                   "Will no one rid me of this meddlesome
 10                   priest?"
 11                 And to his great shock, the knights went
 12  out and did just that, and then he looked up and said, I
 13  don't understand, don't -- don't know where that happen -
 14  - how did that happen?
 15                   "Will no one rid me of this meddlesome
 16                   priest?"
 17                 Well, those meddlesome occupiers
 18  experienced in 1995 what is attributed to the play of
 19  Henry II in 1170, quote, "I want the fucking Indians out
 20  of the Park", is no different. 
 21                 "I want the fucking Indians out of the
 22  Park" is no different than, "Will no one rid me of this
 23  meddlesome priest?"
 24                 Now, will there always be a defence; I
 25  didn't say kill them?  Will there always be a defence

84
  1  that Charles Harnick can mount in a facile, simple
  2  offensive reply for a former Minister of Native Affairs
  3  when he says, I didn't cause his death?
  4                 Will there always be an answer?  Yes, but
  5  we go well beyond that.  We go well beyond that.  We
  6  asked the question, What was your role?  What was your
  7  role?
  8                 We asked for findings with respect to
  9  political interference.  Mr. Commissioner, you can find
 10  those findings -- you can find those findings at page 145
 11  paragraph 237 that the newly-formed Conservative
 12  Government under the leadership of Premier Michael Harris
 13  had neither the experience nor the judgment to
 14  competently and effectively discharge the Government's
 15  responsibility in relation to the occupation of the
 16  Ipperwash Provincial Park.
 17                 We ask your finding, number 2, that:
 18                   "High-ranking members of the
 19                   Conservative Government including
 20                   Premier Harris personally
 21                   inappropriately permitted their
 22                   personal views on Aboriginal rights
 23                   generally and the Ipperwash Park
 24                   occupation specifically to be
 25                   communicated to Civil Service and

85
  1                   police personnel."
  2                 And then you'll see, Mr. Commissioner, in
  3  findings 3 and 4 at page 145, paragraph 237, that we ask
  4  you to make specific findings about the crossing of the
  5  lines of demarcation.  
  6                 I move now to the last area, Mr.
  7  Commissioner, how racism ultimately played itself out in
  8  the hours leading up and after the death of Dudley
  9  George.  
 10                 You've heard my submissions up 'til now. 
 11  I didn't leave racism out.  I didn't -- I don't say that
 12  this submission is hermetically sealed from my previous
 13  submissions, in fact I respectfully submit to you that
 14  Canada's history when it comes to treatment of Aboriginal
 15  peoples is disgusting.  We should all be ashamed.  I
 16  learned more in this Inquiry about the country I didn't
 17  know I had than at any time in my life.  We should all be
 18  ashamed.
 19                 What fuelled this march, what permitted
 20  this to happen was where Aboriginal people stand in the
 21  minds of Canadians.  It's all bad.  It's all bad.  
 22                 The World Conference Against Racism said
 23  the following:
 24                   "Racism is the basis of unequal
 25                   treaties and broken treaties.  Racism

86
  1                   is the basis of the failure to
  2                   apologize and the failure to
  3                   compensate.  Racism is the reason that
  4                   the rights of Indigenous Peoples are
  5                   not protected by domestic legal systems
  6                   to the same degree that the rights of
  7                   other peoples are protected."
  8                 We have seen in our Part 2 proceedings
  9  focusses on conditions, on communities, Band communities
 10  that are appalling.  We have seen teenagers that have
 11  died and fires that should never have happened.  We've
 12  seen disgusting conditions and disgusting treatment of
 13  our First Nations people.
 14                 Now, it is not that we have done nothing,
 15  it is just we have done nearly nothing.  You have
 16  commissioned important work on the land claims process. 
 17  We initiated first contact with First Nations Aboriginal
 18  peoples in this world, in this part of the world.  We
 19  initiated first contact and they were displaced from
 20  their lands.
 21                 Today, in the year 2006, if a Band makes a
 22  claim, a land claim, it takes between fifteen (15) and
 23  twenty (20) years for the Government to simply decide
 24  whether they're going to consider the claim, that is
 25  whether it even reaches a level of merit.  That is

87
  1  appalling.  
  2                 That sign that Mr. Ross so articulately
  3  put out there, the sign that he had up there during his
  4  submissions, when the Government gets their shit
  5  together, the failure to get their shit together is born
  6  of racism.  It's born in the fact that Aboriginal peoples
  7  from our perspective hold the lowest rung in our society.
  8                 In September 1995 the Harris Government
  9  had its first opportunity to play out its political
 10  agenda.  It is so important to appreciate the story that
 11  I say, Mr. Commissioner, you ought to tell.  
 12                 You see, the Harris government was elected
 13  in the summer of 1995 and everybody knows nothing happens
 14  in the summer.  You get elected.  There is majorly
 15  different forms of ceremonies, but nothing happens.
 16                 The bureaucrats are working like crazy to
 17  get briefings together.  People go on summer holiday. 
 18  People come back ready for work after Labour Day; that's
 19  the way life is in most places of our North American and
 20  Canadian society.
 21                 They came back to work on September 5th,
 22  1995 and Julie Jai had this to say about their attitude,
 23  quote -- keeping in mind the Julie Jai was the Chair --
 24  the Chair of the Inter-Ministerial Committee meant to
 25  deal with issues of Aboriginal affairs.

88
  1                 With the authority from government to deal
  2  with these issues, the Chair had this to say:
  3                   "With the Premier's office staff the
  4                   message that I got back after saying
  5                   that there are -- that Aboriginal
  6                   people do have special rights that are
  7                   protected by Section 35 of the
  8                   Constitution Act, I was told, well, we
  9                   don't care."
 10                 Ron Fox put it differently, granted. 
 11  Quote:
 12                   "They couldn't give a shit less about
 13                   Indians."
 14                 Close quotes.  Racism by government.  This
 15  is racism by government.  The political agenda was a
 16  clear one.  
 17                 Dr. Todres had many, many things to say. 
 18  But one of the things she said, I don't know if you
 19  recall, Mr. Commissioner, is she was quite poignant about
 20  her view of what they did with the statement of
 21  principles by a previous government.  What the Harris
 22  government did and she basically described as it being
 23  thrown out.
 24                 Mr. Commissioner, there is little or no
 25  doubt that the story behind the story is the story of not

89
  1  just insensitivity, not just the lack of cultural
  2  training, but the story of an anti-Aboriginal government. 
  3  Sad as it is, a government not prepared to recognize the
  4  special place that Aboriginal peoples hold in our
  5  society.
  6                 Declared so by the courts.  Declared so by
  7  all of our forefathers, including the creators of our
  8  Constitution.  The irony of invoking the rule of law on
  9  the night of September 6th, 1995, to march on the
 10  occupiers is that if Julie Jai is telling the truth Mike
 11  Harris had decided to disregard the rule of law.
 12                 The rule of law said that Aboriginal
 13  peoples do enjoy a special place in our Canadian lexicon;
 14  that Aboriginal peoples do enjoy special constitutional
 15  rights.  They said, we don't care.  That's not the rule
 16  of law.  That's contempt for the rule of law.
 17                 Racism by police.  There are so many
 18  examples that I have chosen several snippets of some of
 19  the more poignant statements on the experiences -- on the
 20  experiences and what you heard, Mr. Commissioner.  And
 21  these are by no means exhaustive.  The litany of racist
 22  comments embarrass us all.
 23                 It's not every police officer.  There are
 24  many police officers that are good people.  This whole
 25  theory that one shouldn't critically analyse an

90
  1  institution because it means we're calling them all
  2  names, you know the good ones they know that's poppycock. 
  3                 They know that it is our job to critically
  4  analyse our institutions to make them better and the good
  5  officers are waiting for the bad officers to leave so
  6  they can prosper. 
  7                 Marlin Simon testified what was heard. 
  8  Welcome to Canada from across the fence.  Right.  Welcome
  9  to Canada. 
 10                 COMMISSIONER SIDNEY LINDEN:   Yes.  Carry
 11  on.  I'm just -- Mr. Millar's supposed to remind you
 12  about something but he's forgotten. 
 13                 MR. DERRY MILLAR:   We have one minute to
 14  go. 
 15                 MR. JULIAN FALCONER:   You see my watch
 16  and Mr. Millar's is the same.  I think -- 
 17                 COMMISSIONER SIDNEY LINDEN:   You have
 18  more than one minute.  You have just under ten (10)
 19  minutes.  Just under ten (10) minutes. 
 20                 MR. JULIAN FALCONER:   Okay.  All right. 
 21  I'll just give the ten (10) minutes. 
 22                 COMMISSIONER SIDNEY LINDEN:   Just under
 23  ten (10) minutes.  
 24                 MR. JULIAN FALCONER:   I can't help but --
 25  my children are educating me on the World Cup -- 

91
  1                 COMMISSIONER SIDNEY LINDEN:   I didn't
  2  mean to interrupt you in the middle of a sentence. 
  3  
  4  CONTINUED BY MR. JULIAN FALCONER:
  5                 MR. JULIAN FALCONER:   That's all right. 
  6  I'm not a huge football fan but my kids love -- love
  7  soccer and getting red carded and yellow carded has some
  8  special meaning to them.  So I want my kids if they're
  9  listening to this, to know that when I get red carded in
 10  this thing it's not because I did something wrong.
 11                 Welcome to Canada.  That's what police
 12  officers uttered in the presence and to Marlin Simon. 
 13  Detective Sergeant Terry McIntosh, "Yeah, don't give a
 14  shit about the stupid fucking Indians".  Constable Daryl
 15  Whitehead quote:
 16                   "Just a big, fat, fucking Indian."
 17                 Detective Constable James Dyke:
 18                   "Yeah, we had this plan,  you know.  We
 19                   thought that we would -- could five (5)
 20                   or six (6) cases of Labatt's 50 we
 21                   could bait them."
 22                 It is the ultimate irony that those who
 23  comment on this Inquiry as a huge burden on the taxpayer
 24  that couldn't possibly be justified, happen to be the
 25  same kind of people that might have produced that

92
  1  memorabilia that took us months to sort our way through.
  2                 Money wasn't wasted; it had to be spent to
  3  root out this nonsense.
  4                 When you are criticised, and I don't say
  5  if, I say when, Mr. Commissioner --
  6                 COMMISSIONER SIDNEY LINDEN:   Thank you.
  7  
  8  CONTINUED BY MR. JULIAN FALCONER:
  9                 MR. JULIAN FALCONER:   -- when -- when you
 10  are criticised, when you are criticised for the length of
 11  this Inquiry or the time it took to root this stuff out,
 12  I hope the people that line up to criticise aren't the
 13  same people engaged in this conduct, because it cost us.
 14                 It cost us time in finding out that it
 15  happened, it cost us time in figuring out how the OPP
 16  dealt with it, it cost us time because there can't be any
 17  healing as your Counsel so eloquently put it, without a
 18  full excavation of the facts, Mr. Millar, his quote.
 19                 In my respectful submission, Mr.
 20  Commissioner, what permeates the process, what permeated
 21  this process, what permeated the march, what permeated
 22  the dining room meeting is an anti-Aboriginal racism, not
 23  shared by all, but an anti-Aboriginal racism enjoyed by
 24  the decision-makers.
 25                 The real decision-makers, Deb Hutton; Mark

93
  1  Wright, Stan Korosec.
  2                 When Stan Korosec described "doing these
  3  fuckers big time", he could do that in an element of
  4  protection, because it was about First Nations people.
  5                 Interestingly enough, and a true irony
  6  lies in those scribe notes, when John Carson said maybe
  7  we should evacuate the cottages, they never did, because,
  8  of course, I would submit to you there was never any real
  9  threat.
 10                 But they were most concerned about
 11  disturbing the cottagers.  You see in the scribe notes,
 12  well, they're already mad enough.  Let's not bother them.
 13                 You see, the cottagers, the non-Aboriginal
 14  community, we're worried about bothering them to evacuate
 15  them for their safety.  The occupiers, we can march on
 16  them.
 17                 In my respectful submission, at the end of
 18  the day, what -- what you are faced with, is the wisdom
 19  of the words of Chief Ovide Mercredi when he discussed
 20  the OPP Ipperwash memorabilia.
 21                   "Well, it does nothing to restore, you
 22                   know, it does nothing to restore normal
 23                   relations between the Aboriginal
 24                   community and the police.  It does the
 25                   opposite.  It creates a greater

94
  1                   divide."
  2                 If you look at the way the OPP dealt with
  3  the racism memorabilia, it was always on the basis of an
  4  ultimate failure to apologize to the community that the
  5  racism was directed at.
  6                 The Whitehead/Dyke scenario is the best
  7  example.  There was an apology to the OPP for
  8  embarrassing them.  No apology to the Aboriginal
  9  community.
 10                 In my respectful submission, this -- these
 11  words, quote, "informal discipline", close quotes,
 12  they're bad words.  They're code to communities who
 13  suffer from this form of racism.  They're code from --
 14  for you're not important enough to formally deal with
 15  what's been done to you.
 16                 Former Commissioner Boniface enjoys a
 17  tremendous legacy when it comes to the sophisticated,
 18  open approach she has taken to fostering race relations,
 19  in particular First Nations relations.
 20                 She enjoys that reputation fairly.  While
 21  I don't know her very well personally, I can be nothing
 22  but impressed by her every day that I speak to her.
 23                 But that doesn't remove the obligation of
 24  us, as officers of the Court, to closely scrutinize her
 25  conduct as well.

95
  1                 When she signed off on the Whitehead/Dyke
  2  discipline, when discipline was meted out inside of seven
  3  (7) days with basically no investigation as to other
  4  misconduct by the officer, when informal discipline was
  5  done behind closed doors instead of a public process,
  6  even if a lesser penalty would happen, Gwen Boniface
  7  showed she didn't appreciate what was at stake.
  8                 We don't sweep it under the carpet and
  9  that's what was done with Whitehead and Dyke, a straight
 10  sweep under the carpet, seven (7) days.  That was the
 11  window of informal discipline.  Appalling.  
 12                 Mr. Commissioner, in our reply factum we
 13  have prepared a chart relating to various examples that
 14  we put together and organized by way of informational
 15  assistance at page 33 paragraph 59 of the various
 16  institutional responses to racism.  There's included a
 17  table on the -- in the pages that follow.
 18                 Now, my submission is that -- and you'll
 19  see it at page 36 the table that I'm talking about and
 20  the reply submissions.
 21                 COMMISSIONER SIDNEY LINDEN:   Yes.
 22  
 23  CONTINUED BY MR. JULIAN FALCONER:
 24                 MR. JULIAN FALCONER:   We are also doing
 25  additional submissions in the Part 2 parts of this

96
  1  process on the issue of systemic racism.
  2                 No -- no speech, no advocacy can
  3  communicate the harm done to people by these forms of
  4  racism.  I can't fix it.  I can't even begin to come up
  5  with a solution.  I only know what doesn't work.
  6                 What doesn't work is how we as a people
  7  have treated racism to-date.  We use different words. 
  8  This is cultural sensitivity.  We create hurdles such as
  9  informal discipline.  We don't apologize directly for
 10  what's been done and we rely on the passage of time to
 11  claim that we couldn't do better.  
 12                 It hasn't worked.  The police can't
 13  investigate themselves when it comes to acts of racism
 14  because they (a) lack the sophistication, and (b) the
 15  charged nature of the allegations make them completely,
 16  completely impotent to deal with their own.
 17                 We have asked for two (2) things.  We have
 18  asked for you to consider a recommendation that there be
 19  a Police Services Board for the OPP and we've asked for
 20  that for two reasons:  
 21                 1. There needs to be a buffer between
 22  politicians on the one (1) hand and the police directly
 23  on the other hand.
 24                 But number 2, a Police Services Board
 25  would make a Commissioner accountable to someone.  

97
  1                 You heard from Gwen Boniface.  She --
  2  she's invited to a meeting of a Standing Committee or
  3  she's not in a given year.  There is no accountability. 
  4  We ask for a recommendation to create accountability. 
  5                 We also ask that when investigating issues
  6  of racism that it be removed from the Police Service and
  7  be provided for by way of independent review.  No option. 
  8  No discretion.  That is the least we can do.  
  9                 Mr. Commissioner, I am wrapping up.  I am
 10  alive to the fact that you've been through a hundred and
 11  thirty-nine (139) witness, two hundred and twenty-nine
 12  (229) days of hearings, and eighteen hundred and seventy-
 13  six (1,876) exhibits not to mention all the Part 2
 14  functions and proceedings that continue to this day.
 15                 Neither I nor any of the other lawyers
 16  have to walk in your shoes.  You and your Counsel and --
 17  and I want say no matter how I may have disagreed or
 18  agreed with Mr. Millar, Ms. Vella, or others, I would
 19  never, ever resile from the view that their work ethic
 20  was beyond anything I have ever seen by a lawyer.  They
 21  are truly a team to be impressed with.
 22                 You have a journey to go on and the
 23  journey has to be inspired from the teachings from the
 24  West, reflections and then truth.  Thank you, Mr.
 25  Commissioner.

98
  1                 COMMISSIONER SIDNEY LINDEN:   Thank you
  2  very much, Mr. Falconer.  We will now take a morning
  3  break.
  4                 THE REGISTRAR:   This Inquiry will recess
  5  for fifteen (10) minutes.
  6  
  7  --- Upon recessing at 11:03 a.m.
  8  --- Upon resuming at 11:13 a.m.
  9  
 10                 THE REGISTRAR:   This Inquiry is now
 11  resumed, please be seated. 
 12                 COMMISSIONER SIDNEY LINDEN:   Mr. Downard,
 13  sir.
 14                 MR. PETER DOWNARD:   Good morning, sir.
 15                 COMMISSIONER SIDNEY LINDEN:   Good
 16  morning.
 17  
 18  FINAL SUBMISSIONS FOR THE HONOURABLE MICHAEL HARRIS:
 19                 MR. PETER DOWNARD:   Sir, direct action
 20  such as the taking of the Park in this case or the -- the
 21  current takeover of land in Caledonia strikes at the
 22  foundations in my submission of civil order in society
 23  and many people view the primary role of government as
 24  being the protection of those foundations. 
 25                 Concern on the part of the public and

99
  1  their representatives is inevitable where there is an
  2  attack or disruption of civil order. 
  3                 And the public in that situation has every
  4  right, in my submission, to express their concerns to
  5  other members of the public, their political
  6  representatives and to the police.  And, in particular,
  7  the political representatives, we say, have the right and
  8  duty to take a position about that upset of civil order.
  9                 In a democracy it is trite, but it is
 10  still fundamental, that there is a diversity of opinions
 11  on such fundamental issues.  And when faced with a direct
 12  action scenario, politicians viewing the situation from a
 13  left perspective, for example, might take a more
 14  permissive view or adopt a policy that has a more
 15  permissive effect.
 16                 And politicians viewing the situation from
 17  a more conservative viewpoint with more concern about
 18  traditions of civil order and traditions of legitimate
 19  process, may be more concerned that civil order be
 20  restored as soon as possible.
 21                 Now, politicians from that perspective
 22  they may place a great value, as I say, on civil order
 23  and legal processes for the assertion of grievances and
 24  they may be concerned, as in this case, with preventing
 25  the expansion of the event.

100
  1                 They may be concerned about the future
  2  consequences, as in this case, the future consequences of
  3  permitting a disruption of civil order.  And they'll be
  4  very concerned that such direct action tactics certainly
  5  not be encouraged or rewarded.
  6                 But in any event, the positions that
  7  politicians in a democratic society may legitimately take
  8  include the position that the direct action should be
  9  opposed.  And if they come to that view those political
 10  representatives, in our submission, have the right and
 11  duty to take steps that are within the legitimate
 12  authority of government to oppose a takeover or
 13  occupation.
 14                 Now, in our submission political
 15  authorities would be abandoning their responsibilities if
 16  they refused to take a position on a matter of public
 17  concern.  
 18                 In particular, we say they would be
 19  abandoning their duty if they refused to take government
 20  action within the bounds of legitimate government action
 21  for fear that this might result in what has been referred
 22  to as quote "political pressure on the police".
 23                 In that respect the authorities must rely
 24  on the professional conduct of police command.  On
 25  commanding officers who know full well that their first

101
  1  allegiance is always to law enforcement; that public and
  2  political views are inevitable where a community is
  3  disrupted by civil disorder and that as far as police
  4  operations are concerned those views are outside the
  5  sphere of police operational decisions.
  6                 Now, to -- to respond to a comment by
  7  Mr. Rosenthal yesterday, we say that that must be so
  8  whether the political views are in opposition to the
  9  incident in question or political views that are
 10  permissive of the -- the incident.
 11                 Whatever the position of the Government of
 12  the day, the public is also going to look to the
 13  professional conduct of police command to maintain their
 14  first allegiance to law enforcement and to keep the peace
 15  in a manner consistent with professional integrity.
 16                 Now, we say all of that is fundamental and
 17  we also say that Mike Harris was not a king.  He was not
 18  a dictator.  He didn't have mystical powers of mind
 19  control or the ability to cause all those around him to
 20  cease rational thinking.
 21                 He was the Premier of Ontario.  He was a
 22  politician in a democratic society and we say his
 23  government had the right to take steps that were within
 24  the legitimate bounds of government to oppose the
 25  occupation.

102
  1                 And we say that that is what they did when
  2  they submitted the matter to the Courts for an
  3  injunction.
  4                 Now, what the Government could not do was
  5  direct the operations of the Ontario Provincial Police on
  6  the ground.  The government knew that and we say that
  7  neither Premier Harris nor anyone else in the Government
  8  did that.  
  9                 There is no evidence, we say, that this
 10  was done.  And with that, I want to come to the dining
 11  room.
 12                 Now, we say that the brief discussion in
 13  the Premier's dining room on September 6th was
 14  appropriate and it followed two (2) lengthy meetings of
 15  the InterMinisterial Committee that had taken place that
 16  day and the previous day, and in the dining room what we
 17  have is an informal, ad hoc discussion at the conclusion
 18  of a regular full Cabinet meeting, to respond to the IMC
 19  recommendation to seek an injunction as soon as possible.
 20                 And -- so that we have the Premier and the
 21  three (3) ministers most directly involved meeting
 22  together briefly with their political staff and a small
 23  number of relevant civil servants.
 24                 And they did so as to make a final
 25  decision as to what the government's response should be

103
  1  to the take over of the Park.
  2                 And we say that was plainly an appropriate
  3  thing to do.  Plainly.  And what's more important, the
  4  content of the discussion in the dining room was also
  5  appropriate.
  6                 Now, Mr. Falconer says there was a cover
  7  up.  And I say that's nonsense because there is nothing
  8  to cover up.
  9                 The theory of conscious of guilt, I say,
 10  is simply sophistry because there is nothing to be guilty
 11  about.
 12                 Now, we know -- we know from the evidence
 13  that a central part of that discussion was precisely that
 14  the action taken by government had to be action that was
 15  within the legitimate bounds of government.
 16                 And more specifically it was expressly
 17  discussed in the dining room that government could seek
 18  an immediate Court injunction but could not direct
 19  operations of the police.
 20                 There was no dissent on that point.  Not a
 21  single participant of the many who testified said there
 22  was any direction of police operations or any attempt to
 23  direct police operations in that meeting.
 24                 Now, Ron Fox, who was the OPP officer
 25  seconded to the civil service, who, some parties allege

104
  1  was a messenger of government direction to the police,
  2  well he testified that he was never instructed to convey
  3  any such direction.
  4                 He also testified that he was never
  5  instructed to communicate any views of the Premier to the
  6  police and more importantly, his evidence as to the
  7  outcome of the meeting was that police matters were to
  8  remain firmly in the hands of the police.
  9                 And we've detailed all that in our written
 10  submission and I know you'll read that very carefully.
 11                 Now, the allegation that Mike Harris gave
 12  directions to the police being clearly unfounded on the
 13  evidence, some parties have made an attempt to interpret
 14  an implied direction.
 15                 Lawyers love to find implied things.  They
 16  can find them virtually anywhere.  But there has been an
 17  attempt to interpret an implied direction, a direction by
 18  raised eyebrow, as it were, into evidence that the
 19  Premier was concerned about the takeover of the Park and
 20  wanted to know why the police had not been able to stop
 21  it.
 22                 Now, it will be recalled that former
 23  Deputy Attorney General Larry Taman testified that it is
 24  perfectly appropriate for government officials to ask
 25  such questions and the point comes back to fundamentals

105
  1  of democracy.
  2                 He reminded us that the public is entitled
  3  to ask their political representatives how such events
  4  have occurred and the public's entitled to an answer from
  5  their political representatives.  So the political
  6  representatives have to get the information, they have
  7  to.
  8                 Now, in our submission it is not
  9  reasonable to attempt to stretch the asking of this
 10  question by Mike Harris into a direction to the police. 
 11  No participant in the meeting thought that it was a
 12  direction to the police.
 13                 More than that, more than that, very
 14  senior, very seasoned civil servants in the -- in the
 15  dining room testified they did not even think there was
 16  even criticism of the police.  So set -- set aside -- set
 17  aside that -- that's what political people say, but
 18  senior independent civil servants say there was no
 19  criticism.  
 20                 And even more than that Ron Fox's own
 21  assistant Scott Patrick testified here and he made
 22  reference to the Premier expressing some concerns, but he
 23  said he did not know that he would describe the Premier's
 24  comments as criticism.  
 25                 So we say what's going on is a lawyerly

106
  1  strained attempt to find what is desired to be found in
  2  facts that really don't support it in a reasonable way.
  3                 Now, Mr. Falconer said this morning that
  4  it was silently expected -- in the context of government
  5  it was silently expected that things said by Mike Harris
  6  in the dining room would be conveyed to Mr. Fox directly
  7  to Incident Commander Carson.
  8                 Well, we know in fact that the opposite is
  9  true.  The reasonable expectation of participants in the
 10  dining room discussion was in fact that the discussions
 11  in that room would not go outside of government.
 12                 Now, formerly Deputy Solicitor General
 13  Elaine Todres testified that Ron Fox's subsequent
 14  communications to John Carson of Fox's opinions about the
 15  dining room discussion were contrary to protocol.  She
 16  said such discussions are expected to be -- to be kept
 17  confidential within government.
 18                 Now, we say that that was what people were
 19  going to reasonably expect in that actual culture and I
 20  submit to you that Mr. Falconer's submission on that
 21  point is based on assertion.  Our submission on that
 22  point is based on evidence.
 23                 Now, some parties will still allege,
 24  though, that the dining room discussion was held for the
 25  very purpose of enlisting Ron Fox as a messenger of

107
  1  political direction and we say that's also contradicted
  2  not only by the -- the content of the -- of the
  3  discussion time and time again but by the very
  4  circumstances of the situation.
  5                 Now, Ron Fox testified on September 6th
  6  that he was in the same room as the Premier for three (3)
  7  to five (5) minutes and his assistant Mr. Patrick said he
  8  had no recollection of the Premier speaking directly to
  9  either himself or Fox.  
 10                 More than that, he said -- Patrick said --
 11  Patrick said that he and Fox were seated in the far
 12  corner of the room 20 to 30 feet away from the Premier.
 13                 More than that, Patrick said the Premier
 14  had his back to Fox and Patrick when he was speaking
 15  which made it hard for them to hear.
 16                 And more than that he said that the
 17  Premier spoke in a calm and low conversational tone which
 18  caused further auditory difficulties.
 19                 Now, I say to you, sir, that it is simply
 20  unreasonable, it is a virtually irrational torturing of
 21  the circumstances to suggest that they were consistent
 22  with Ron Fox having been summoned to the dining room to
 23  get direction to be conveyed to police officers.
 24                 Now, I also want to say that the decision
 25  the Government actually made to seek an immediate

108
  1  injunction was consistent with the position the
  2  Government had clearly communicated to the public, to
  3  everyone the previous day.  There was no secret about it.
  4                 At midday on September 5th the Government
  5  had made public through Minister Hodgson's media
  6  conference its opposition to the takeover.  It was made
  7  clear in that conference that the Government was
  8  reviewing its legal options including the seeking of an
  9  injunction and that the Government intended to proceed
 10  quickly.
 11                 Now, Mr. Klippenstein said yesterday that
 12  the communication of the Premier's views to John Carson
 13  on the afternoon of September 5th was extraordinary. 
 14  Well, he's entitled to his opinion.  But it's also the
 15  case that the Government's clear opposition to the
 16  takeover and its intent to take prompt legal action was
 17  already in the public domain and it had already been put
 18  in the public domain by the Government itself.
 19                 Now, I also want to speak briefly to
 20  Mr. Falconer's personal attack on Mr. Harris this
 21  morning.  And I'd like to start with Mr. Falconer's
 22  submission to you that Mike Harris is not prepared to
 23  have his credibility determined by you on the basis of
 24  Mike Harris' statements in the House.
 25                 Now, that is black and white false.  It is

109
  1  completely false and the reason why it is false is that
  2  as you will recall, sir, we dealt with this issue in the
  3  course of the hearings.
  4                 The issue of parliamentary privilege. 
  5  There was -- parliamentary privilege may preclude a
  6  member of the House being cross-examined as to
  7  credibility on statements in the House.  And that issue
  8  came up and on Mr. Harris' expressed instructions we
  9  waived that privilege precisely so there could be full
 10  latitude of cross-examination of Mr. Harris as to
 11  credibility or whatever, and you can look at the
 12  statements in the House all you want.  And our approach
 13  to this Inquiry throughout, throughout is to attempt to
 14  be cooperative and constructive because we know -- we
 15  know Mr. Harris did nothing wrong.
 16                 Now, I do also want to make a few comments
 17  on the -- the attack on the basis of Hansard.  And what
 18  Mr. Falconer does is he reads Hansard which is the record
 19  of democracy in action; the rough and tumble of debate
 20  and accusation and counter-accusation and all that goes
 21  on.
 22                 But he reads that in a lawyerly way like a
 23  last will and testament to try and build his case.  Now,
 24  we say if you -- if you're going to read the record of
 25  democracy in action as a last will and testament it may

110
  1  well become one.
  2                 But, in any event, the gravity of
  3  Mr. Falconer's case is really not what he says Mr. Harris
  4  said, it's -- you know, it's the seventeen (17) times or
  5  whatever, the number, right.  It's a big number.  Put a
  6  big number on the screen, it's very impressive.  And he
  7  says, Oh no, but it's what Mr. Harris didn't say.
  8                 Okay.  And he says that what Mr. Harris
  9  didn't say is crucial because Mr. Harris was involved in
 10  an inappropriate meeting.  His involvement in an
 11  inappropriate meeting is the key that unlocks all this,
 12  that explains everything.  Well, we've made it clear to
 13  you, sir, in our submission, that it was a perfectly
 14  appropriate meeting in form and in content.
 15                 And what we say is that Mr. Falconer's
 16  argument is without merit, that it privileges lawyerly
 17  techniques and tactics over truth.  And we also say that
 18  the approach of character assassination that
 19  Mr. Falconer, more than any other witness, has adopted
 20  against Mr. Harris -- and you'll notice in his
 21  submissions, he only wants you to make an adverse finding
 22  of credibility against one (1) witness.
 23                 Now, we say that the approach of character
 24  assassination is not only unfounded but completely
 25  inconsistent with the spirit of your process and it is

111
  1  damaging and distracting from the serious work that we
  2  say your Commission has sought to do.
  3                 And with that, I wish to talk about Mr.
  4  Horton's submissions yesterday, briefly, and some similar
  5  assertions by others.
  6                 I do not agree with Mr. Horton's
  7  submission that the Harris government's First Nations
  8  policy was anti-Native and that it was motivated by an
  9  anti-Native animus.  In our written submissions, we have
 10  referred to specific documents and facts which show why,
 11  in our submission, that would not be a reasonable finding
 12  for you to make.
 13                 And I must tell you, I wonder about the
 14  role the ideological bias has played in the positions of
 15  -- of counsel, an ideological hostility has played in the
 16  positions of counsel in this matter.
 17                 But notions, for example, to take an
 18  impressionistic, uncorroborated statement that I heard
 19  somebody say that this Government was going to disregard
 20  the constitution and to then therefore assert that the
 21  Harris Government was going to disregard the
 22  constitution, it beggars belief in a modern world.  It
 23  completely beggars belief.
 24                 And I am very concerned that there is an
 25  anti-Conservative animus at play in this -- in this

112
  1  matter and that it is skewing us away from constructive
  2  work.
  3                 But -- but happily, I also note -- well,
  4  I'll come to my other point in a minute, which I want to
  5  balance that last statement with, because I think it's
  6  important that it be balanced, very important.
  7                 Now, the Harris Government's view that the
  8  approach to First Nations issues should be through
  9  economic empowerment is not, in our submission, one that
 10  was intended to be contrary to the strength and cultural
 11  integrity of Native communities.
 12                 When one reads the policy documents which
 13  include the express recognition of constitutional
 14  protection which assert that Native rights must be
 15  respected and then go on to emphasise economic
 16  empowerment, one can readily see how persons could hold
 17  that a view and believe that that would be more likely to
 18  enhance the capacity of Native communities to maintain
 19  their strength and cultural integrity and that it may
 20  well be economic disadvantage that in fact provides a
 21  strong incentive to assimilation.
 22                 Now, the Chiefs of Ontario may well take a
 23  different view and -- and there clearly were some issues
 24  in the field of First Nations policy upon which the
 25  Harris Government and the Chiefs of Ontario took

113
  1  different views, but the way forward on any such
  2  difference, in my submission, is not by one side of that
  3  debate or discussion attacking the character of the
  4  other.
  5                 In particular, in the context of this
  6  case, it is my submission, that one can't deal with a
  7  conservative view point by seeking similarly to
  8  characterize it as anti-Native.
  9                 Now, it is wrong and unproductive to
 10  simply refuse to deal with a conservative view point on
 11  the basis that it is racially prejudiced and a view point
 12  that should be -- should not be allowed audience.  We are
 13  not going to move forward if we continue to deal with
 14  these fundamental conflicts between -- or in -- these
 15  fundamental conflicts regarding appropriate conduct in
 16  society, if we respond with inflammatory and unfounded
 17  techniques of character assassination.
 18                 Now, it's also not the way forward to seek
 19  to attribute a person's holding any political perspective
 20  in good faith causal consequences of that perspective, of
 21  just -- of simply holding the perspective itself, as Mr.
 22  Horton would have it.  That sort of argument can readily
 23  be seen, upon calm reflection, as being unreasonable and
 24  is involving remote matters and speculation.  And the
 25  concern here is that that can only contribute to a

114
  1  condition of sustained polarization and isolation.  And
  2  where one (1) party in the debate has experienced
  3  historical injustice or historically disadvantaging
  4  conditions it can contribute to continued marginalisation
  5  to some extent.
  6                 Now, I want to close by saying there
  7  should be no doubt about one (1) thing.  Mike Harris
  8  believes that the death of Dudley George was a
  9  regrettable tragedy that occurred when he was Premier of
 10  Ontario.  But we say -- we say -- and we -- we have to
 11  live with that tragedy.  We -- we can't -- we can't just
 12  close the door on it.  We have to live -- we all have to
 13  live with it.  It is far -- it is far more central to
 14  some people's lives than to others, but we all have to
 15  live with it.
 16                 And we say that if we all listen to each
 17  other in good faith and we learn from each other, and in
 18  -- in the several references I heard yesterday to the
 19  last paragraph of our submissions I heard bridges being
 20  built, and I say that if we pursue that path we can
 21  prevent a similar tragedy from ever occurring again in
 22  the future.  And make no mistake about it, that is what
 23  Mike Harris wants.
 24                 Now, sir, I want to thank you very much
 25  for your impeccable...

115
  1                       (BRIEF PAUSE)
  2  
  3                 MR. PETER DOWNARD:   Sir, I want -- I want
  4  to thank you very much for the -- the impeccable fairness
  5  with which you've conducted this Inquiry.  It's been a
  6  privilege and an honour.  And likewise in dealing with
  7  your -- your Counsel who are not only superb
  8  professionals but pretty decent folks too.
  9                 And I've just been asked did I mean the
 10  Commissioner as an anti-conservative animus in the course
 11  of my submissions.  No.  Thank you very much.
 12                 COMMISSIONER SIDNEY LINDEN:   Thank you
 13  very much, Mr. Downard.
 14                 I believe Mr. Harvey Strosberg is here on
 15  behalf of Mr. Charles Harnick.  Welcome, Mr. Strosberg.
 16                 MR. HARVEY STROSBERG:   It's a pleasure,
 17  Mr. Commissioner.
 18  
 19  FINAL SUBMISSIONS FOR MR. CHARLES HARNICK:
 20                 MR. HARVEY STROSBERG:   I want to start
 21  where Mr. Downard finished and that was to commend you
 22  for having the patience of Job and something that I'm
 23  sure your mother taught you that you had to have which
 24  was "zitsfleisch", the ability to sit and listen.
 25                 I also want to thank Jacqueline Horvat who

116
  1  was kind enough to do all the things that I didn't have
  2  to do.
  3                 The -- the start of my submissions is
  4  really at the start of your Inquiry and contrary to the
  5  suggestion of Counsel who made a fundamental slip, not
  6  Mr. Downard but the Counsel before him, this is not a
  7  court.  He repeated that this was a court time and again. 
  8  He talked about his responsibility to the Court.
  9                 This is not a court.  This is not a body
 10  that has inherent jurisdiction.  It's fundamental to
 11  start with that rule and principle of law.  This is a
 12  commission that is created by ordering counsel and it has
 13  limits on its authority to act.   It is limited by one
 14  (1) sentence and the sentence requires you to inquire
 15  into and report on the events surrounding the death of
 16  Dudley George and to make certain recommendations. 
 17  That's a fundamental point and that means that this is
 18  not a commission into general racism. 
 19                 This is not a commission into determining
 20  many of the things that I've read in the material and
 21  that Counsel have said to you.  
 22                 You have an obligation to interpret what
 23  it means, what -- what the phrase, "the events
 24  surrounding the death of Dudley George," means, but in my
 25  submission it does not require you, nor does it permit

117
  1  you to go far afield as you have been asked to talk about
  2  systemic discrimination as just one of the items that has
  3  been talked about.
  4                 And the -- I am at -- at root, a tort
  5  lawyer and so in preparation for today I ask the question
  6  about how, in law, do we -- do we deal with causation? 
  7  What does it mean that one (1) thing caused something
  8  else?  
  9                 And your -- your -- you know or you might
 10  know if you read your brother's book that the, 'but for'
 11  test in causation doesn't apply.  Causation is determined
 12  by whether -- by determining whether or not an act
 13  materially caused, whether or not it caused an event.
 14                 And this is important because, in my
 15  submission, what we -- what we've heard today is, and
 16  what we've read in the submissions, is really a
 17  misunderstanding of what causation is.  You're asked, in
 18  effect, to say that a dining room meeting materially
 19  caused the actions of the OPP on the ground later that
 20  day.  That was what you were asked to -- to conclude.
 21                 And in my submission you can't reach that
 22  conclusion, that didn't happen, and when you -- when you
 23  look at this the way you should look at it, which is the
 24  quest --asking the question of what caused what, that is
 25  one of the things that it is important for you to do. 

118
  1  And I'm sure that you'll be able to look at those
  2  important cases such as Athey in the Supreme Court of
  3  Canada that will talk to you about the question of
  4  causation. 
  5                 COMMISSIONER SIDNEY LINDEN:   Well, my
  6  brother will be very happy that you've cited his book
  7  here.
  8  
  9  CONTINUED BY MR. HARVEY STROSBERG: 
 10                 MR. HARVEY STROSBERG:   He is happier that
 11  I bought one in preparation for today.
 12                 The point I wish to illustrate is the fact
 13  that Charles Harnick awoke on that fateful September
 14  morning and got out of bed was not a cause and didn't
 15  contribute to the death of Dudley George.
 16                 And I'd like to talk about the injunction
 17  that was -- which was sought.  The fact that there was an
 18  injunction or decision to seek an injunction did not
 19  cause and did not contribute at all to the death of
 20  Dudley George. It was not a factor which materially
 21  contributed to his -- to his death.
 22                 The fact that Charles Harnick came to this
 23  dining room meeting held by government officials to
 24  discus a response to the occupation was not a cause and
 25  didn't contribute to Mr. George's death.  It was not a

119
  1  factor which materially contributed to his death.
  2                 Mr. Harnick was the Attorney General and
  3  the responsibility of the Attorney General is to decide
  4  whether or not to make -- to make an application to the
  5  court.  In fact, traditionally when applications for an
  6  injunction are made in these contexts it's made, first
  7  and foremost, in the name of the Attorney General of
  8  Ontario.
  9                 And in my submission it was a -- prudent
 10  and appropriate, for Mr. Harnick, as Attorney General, to
 11  consult with the Premier and others before the decision
 12  was made -- and I'm not waving at you.  I'm waving at the
 13  flies.  
 14                 COMMISSIONER SIDNEY LINDEN:   Yes, we've
 15  had some experience with flying objects.
 16  
 17  CONTINUED BY MR. HARVEY STROSBERG: 
 18                 MR. HARVEY STROSBERG:   I just didn't want
 19  you to think -- I didn't think that -- want you to think
 20  that I was -- that this was histrionic yet. 
 21                 The -- the Premier agreed with the
 22  recommendations of the Deputy Attorney General and Mr.
 23  Harnick to seek an injunction.  In my submission there
 24  was nothing improper in the decision to seek an
 25  injunction.  

120
  1                 And no one can logically criticize the
  2  decision to seek an injunction and, in fact, in the
  3  absence of special damages it is only the Attorney
  4  General who may sue because of a breach of the law.
  5                 This is -- that is as a matter of law an
  6  ordinary member of the public has no standing to claim an
  7  injunction for breach of the -- of the law unless he or
  8  she or it has suffered damages.  And that's a -- that's a
  9  well known proposition that's been articulated in the
 10  case law, including in the case of Findlay and Canada in
 11  the Supreme Court of Canada.
 12                 And that -- that principle of law stands
 13  uncontradicted.
 14                 It's perfectly appropriate for the
 15  Attorney General to consider the decision about whether
 16  or not to seek an injunction and make a decision.
 17                 And no one can logically criticise the
 18  instructions to Mr. McCabe to seek the injunction and to
 19  do it on notice or without notice, as he considers
 20  appropriate, in my submission, a perfectly appropriate
 21  decision made.
 22                 And -- and so we see that nothing that was
 23  done by Mr. Harnick at that meeting, could directly or
 24  indirectly been interpreted as an attempt to anyway
 25  influence the Ontario Provincial Police.

121
  1                 The step that the Attorney General took
  2  was to say, get an injunction, recognizing always that
  3  the issue of enforcement of the injunction was a matter
  4  for the police and not a matter for the Attorney General
  5  and that is undisputed.
  6                 And -- and so in my submission, you have
  7  to conclude that the seeking of an injunction was a fair
  8  and reasonable decision in all the circumstances and was
  9  utterly irrelevant as a causative factor in the shooting
 10  of Mr. George.
 11                 And -- that's issue number 1.  And the
 12  second is the dine -- the second issue that you have to
 13  talk about is the dining room meeting.
 14                 There was a meeting in the Premier's
 15  dining room on September 6th which preceded the decision
 16  or was contemporaneous with the decision to -- to seek
 17  the injunction.
 18                 Now, there was nothing inappropriate about
 19  Mr. Harnick attending this meeting.  There was nothing
 20  inappropriate about having this meeting.  This meeting,
 21  as of today, is not shrouded in secrecy.
 22                 My goodness, I can't think of any place
 23  where -- where more days were spent looking at a meeting
 24  that only took a very short period of time.  I mean, when
 25  you think about how many days you spent hearing evidence

122
  1  about that meeting, I think you probably had a day a
  2  minute, at least.
  3                 And you have dissected that meeting minute
  4  by meeting (sic).
  5                 Any failure to disclose the fact of this
  6  meeting at any particular time does not make the meeting
  7  causative of Dudley George's death.
  8                 And let me just repeat that so that
  9  there's no misunderstanding.
 10                 Whether or not anyone disclosed that
 11  meeting, I'll leave it to you to look at the evidence, it
 12  is utterly illogical, it is facile, it is inappropriate. 
 13  You can't link the failure to disclose to say that
 14  therefore the meeting caused the death, or that the
 15  meeting caused the OPP to do anything.
 16                 You have to look at the fact of the
 17  meeting and the fact that somebody did or did not
 18  disclose the existence of the meeting in the legislature
 19  -- there was a very important politician that came from
 20  Windsor, his name was Herb Gray.  He said it was called
 21  Question Period.  It wasn't called Answer Period.
 22                 And that's how many politicians look at --
 23  look at the Question Period in the legislature.  And --
 24  and whether that's right or wrong, is not the question
 25  for you to decide.

123
  1                 The question you have to decide is whether
  2  or not what happened at the meeting was causative of the
  3  death or contributed to the death.
  4                 And you can't, by putting up on a screen,
  5  a whole bunch of dates and saying, ah ha, somebody should
  6  have, could have, would have, disclosed it at that time
  7  but didn't and ergo that means that somehow it's
  8  causative.
  9                 That is -- that is good theatre.  It's
 10  good press, but it's not good law nor is it good fact.
 11                 Now, let's go to that meeting.  The
 12  suggestion was that you should make a finding that the
 13  Harris government was racist, that's how I took the note
 14  down.
 15                 I don't know what that means.  I act for
 16  Charles Harnick.  He was a member of the Harris
 17  government.  I know that Mr. Harris has got Counsel and
 18  Mr. Runciman's got counsel and Deb Hutton has counsel. 
 19  Nothing that Charles Harnick said, nothing that Charles
 20  Harnick did, nothing that Charles Harnick believed in his
 21  heart could lead anyone to suggest that he was a racist. 
 22                 There isn't a tittle of evidence of that;
 23  that is -- that is made up of a whole cloth and any
 24  suggestion to the contrary would just be simply
 25  outrageous.  Nothing that that man said, nothing that Mr.

124
  1  Harnick did would give you any justification whatsoever
  2  to come to that conclusion.
  3                 What Mr. Harnick did was make a decision
  4  ultimately to seek an injunction.  My goodness, I don't
  5  know how -- I don't know how you can twist that into any
  6  criticism.  
  7                 Now, there was -- there was discussion
  8  about the statement, I want the fucking Indians out of
  9  the Park.  You can't take that statement in isolation;
 10  you have to also take the rest of Mr. Harnick's evidence
 11  where he talked about how the Premier paused and said he
 12  became quiet and he then said, I know -- I know you can't
 13  get them out of the Park or words to that effect, you'll
 14  have it in the transcript.
 15                 But what it led me to do was ask myself --
 16  the question is what -- what does the word "fucking" mean
 17  in these circumstances and I looked it up in the
 18  dictionary.  I looked it up in the dictionary, in the
 19  Miriam Webster Dictionary and it's an adjective.  It's
 20  used -- it said in the -- the same dictionary that was
 21  quoted up here, as an intensifier. 
 22                 Interesting word.  Common parlance used as
 23  an intensifier and I dare say, Mr. Commissioner, that
 24  I've used that word as an intensifier and I dare say that
 25  many people in this room have used that word as an

125
  1  intensifier sometimes about things that have gone on in
  2  this -- in this very room.
  3                 And --
  4                 COMMISSIONER SIDNEY LINDEN:   I'm shocked
  5  and appalled.
  6                 MR. HARVEY STROSBERG:   And you're showing
  7  -- you're showing your age when you do.
  8                 COMMISSIONER SIDNEY LINDEN:   Yes.  Yes.
  9  
 10  CONTINUED BY MR. HARVEY STROSBERG:
 11                 MR. HARVEY STROSBERG:   The -- the point I
 12  make is that that word has added flavour and colour and
 13  headlines to this Inquiry, but I respectfully say that
 14  it's neither sound nor fury and in the context of this
 15  Inquiry it signifies nothing.  
 16                 It does not -- it does not in the context
 17  of this -- of this Inquiry indicate any type of racism. 
 18  It tells you that governing this province is not a tea
 19  party; that's what it tells you.  It tells you that
 20  people who are governing this province are real people
 21  and sometimes what they do is they talk the way people do
 22  when -- when they find themselves in situations where
 23  they're looking for a descriptor or an emphasizer.
 24                 And in my submission no person can
 25  reasonably torture the discussion at that dining room

126
  1  meeting or the use of that adjective into a suggestion or
  2  a wink or a nod or an urging to the OPP to go out and use
  3  inappropriate force or shoot someone or do something
  4  that's inappropriate.
  5                 There is -- there isn't any evidence that
  6  suggests that.  You can't reach that conclusion on that
  7  evidence.  It is -- it is simply not there.  
  8                 I understand how some people have a
  9  perspective on life that sometimes -- that sometimes
 10  government can't be trusted.  In this case what happened
 11  at that meeting was not causative.  Nothing that happened
 12  at that meeting was causative of the police.
 13                 The fact that there was a botched police
 14  operation means simply there was a botched police
 15  operation.  That's what happened here.  And you can't tie
 16  the fact of a meeting that took place at Queen's Park to
 17  a botched police operation at -- at Ipperwash.
 18                 Now, in my submission, where Mr. Harnick
 19  is concerned your conclusion should be that in the time
 20  leading up to the shooting of Mr. George his actions were
 21  reasonable and appropriate and the simple reply
 22  submission that -- that was made was totally and
 23  completely supported by the evidence.  Nothing that
 24  Charles Harnick did caused Dudley George's death. 
 25  Nothing did.  

127
  1                 Now, let me come to the issues of
  2  credibility.  Mr. Downard was right.  There was -- there
  3  was, on the part of the people that participated in this
  4  Inquiry, the right to, for the purposes of this Inquiry
  5  only, to waive privilege on what was -- happened in the
  6  legislature.
  7                 What that meant is that without Mr.
  8  Harnick's consent and Mr. Harris' consent, without Mr.
  9  Runciman's consent you could never have cross-examined
 10  them about what was said in the legislature.  You never
 11  could have cross-examined them about what was said in the
 12  transcripts of the examinations for discovery.
 13                 They did it because they wanted to
 14  cooperate and because they believed it was important for
 15  your work to have that ability.  And if it's necessary to
 16  judge credibility in terms of whether you believe what
 17  one person said, you can use that evidence.  But it's not
 18  within the terms of your reference to go ahead and say
 19  oh, by the way, a year later or two (2) years later or
 20  three (3) years later someone said something in the
 21  legislature which wasn't as candid as it could have been;
 22  that's not within your terms of reference.
 23                 And in that respect, and I took what
 24  Mr. Downard was saying when I read his submissions, to be
 25  something like that and in my submissions that is a

128
  1  limitation on your -- on your work because if someone was
  2  going to say that what was going to happen in the terms
  3  of reference that they were going to -- that no - no --
  4  no government could have passed an order in council that
  5  would have, at the time of the order in council that was
  6  passed, that could have even suggested that you could
  7  inquire into something such as that because -- because of
  8  the privilege.
  9                 And so you can't interpret your order in
 10  council as having -- as giving you that authority.  And
 11  so in my submission what is important here is that -- is
 12  that so far as my client is concerned that you -- that
 13  you conclude that he -- his actions leading up to --
 14  leading up to and being involved with and at the time
 15  surrounding Dudley George's tragic death were appropriate
 16  and that you -- you reach that conclusion as quickly as
 17  you can, given the work that you have to do which I know
 18  is enormous and immense.
 19                 And I thank you very much and I thank your
 20  counsel for all the cooperation and kindness that they've
 21  shown to us.  
 22                 COMMISSIONER SIDNEY LINDEN:   Thank you
 23  very much, Mr. Strosberg.  
 24                 I believe Mr. Runciman's counsel is next. 
 25  

129
  1                       (BRIEF PAUSE)
  2   
  3                 MR. IAN SMITH:   Thank you very much,
  4  Commissioner.  I expect to be relatively brief in my
  5  comments to you today and this is, of course, in keeping
  6  with the approach that I have brought to every facet of
  7  my brief for Mr. Runciman in this Inquiry.
  8  
  9  FINAL SUBMISSIONS FOR MR. ROBERT RUNCIMAN:
 10                 MR. IAN SMITH:   Now, my cross-
 11  examinations and my submissions to you haven't been short
 12  because I'm shy or I can't think of things to say or have
 13  no questions.  They've been brief precisely because Mr.
 14  Runciman's involvement in the matters which give rise to
 15  this Inquiry was so narrow. 
 16                 In fact, so narrow as to be, in my
 17  respectful submission, completely mundane.  He was
 18  briefed from time to time.  His executive assistant
 19  governed herself at all times professionally at meetings. 
 20  He attended two (2) relevant meetings himself and he was
 21  content to let others more directly responsible with the
 22  various parts of this file to do their jobs without his
 23  interference.
 24                 Up to the time of the tragic death of Mr.
 25  George, Mr. Runciman was never the point man on this

130
  1  file, never the spokesman, never influenced or directed
  2  any policy and never, not once, did anything to interfere
  3  with the operational decisions of the OPP.
  4                 And the record of this Inquiry and all the
  5  other parties, or many of the other parties, in my
  6  respectful submission, all seem to recognize exactly what
  7  I've just been talking about.
  8                 Yesterday, you commented on the number of
  9  witnesses you've heard and the tens of thousands of pages
 10  of transcript and exhibits that have been amassed.
 11                 What's remarkable about that record, that
 12  enormous record, is how little of it relates directly to
 13  Mr. Runciman and his conduct.
 14                 Moreover in the hundreds and hundreds of
 15  pages of written submissions that were filed in-chief in
 16  this matter, there is precious little said about him,
 17  save for the written submissions I filed on his behalf.
 18                 Indeed to the extent that he is mentioned,
 19  the parties tend to cite his evidence and to rely on it
 20  and they do so with good reason.
 21                 Mr. Runciman was, in my respectful view, a
 22  very good witness and provided frank evidence to you in a
 23  very thoughtful manner.
 24                 And in any event, there being so little
 25  said about Mr. Runciman, I filed no written reply on his

131
  1  behalf.
  2                 And most of the written replies that were
  3  filed say nothing about Mr. Runciman and not until one of
  4  the last of the late filed replies trickled in, did
  5  anyone direct any aim at Mr. Runciman whatsoever.
  6                 But it is here that Mr. Klippenstein makes
  7  for the first time some serious allegations about Mr.
  8  Runciman's conduct in the guise of reply.
  9                 Now, I'm going to set aside what I think
 10  about the inherent unfairness of having approached the
 11  matter in this way and I'm simply going to respond to the
 12  allegations that have been made and the supposed evidence
 13  on which they purport to be based.
 14                 As we shall see, in my respectful
 15  submission, that evidence turns out to be pretty thin
 16  gruel.
 17                 Mr. Klippenstein makes two (2) main
 18  allegations about Mr. Runciman.  The first is that he
 19  failed to speak up at the dining room because Mr. Fox was
 20  present and because operational information was
 21  discussed.  Mr. Klippenstein refers to this as a
 22  transgression.
 23                 Now, you'll thank me for having decided
 24  not to go into any detailed analysis of the dining room
 25  meeting.  I rely on my own written submissions in that

132
  1  respect and I adopt the written submissions filed by Mr.
  2  Downard and his colleagues on behalf of Mr. Harris and
  3  Ms. Perschy and her colleagues on behalf of Ms. Hutton.
  4                 In respect of that meeting, what happened
  5  there and the lack of any connection to the OPP's
  6  decisions on the ground.
  7                 But let me make just a repeat following
  8  three (3) points.
  9                 First, Mr. Runciman heard no information
 10  at the dining room meeting he believed to be operational
 11  or that was operational.  That's supported by the
 12  evidence of others; Ms. Todres and Ms. Hunt were the
 13  people most likely to be in a position to identify it.
 14                 There was nothing about tactics or plans
 15  or matters confidential what the police were going to do.
 16                 Instead, the people present were briefed
 17  about what was happening on the ground and, make no
 18  mistake, in my respectful submission, they were entitled
 19  to know what the situation was.
 20                 In any event, the briefing came not from
 21  the OPP.  It came from the Ministry of Natural Resources.
 22                 Second, Mr. Runciman heard no order or
 23  direction given to the OPP.  The witnesses are unanimous
 24  on this point, those who attended the meeting.
 25                 The only direction was that given to the

133
  1  Attorney General, go and get an injunction.  And this is
  2  something essentially requested by the OPP in Project
  3  Maple.
  4                 In other words, police policy was
  5  directing the Government, not the other way around on
  6  this point.  And it's my submission, in light of these
  7  facts, to describe Mr. Runciman's silence at the dining
  8  room meeting as a transgression simply does not withstand
  9  scrutiny.  It has no foundation.
 10                 The second allegation and more serious in
 11  my view and more scandalous, Mr. Klippenstein accuses Mr.
 12  Runciman of having engaged in a cover-up.  He uses that
 13  term and all the dishonesty and underhandedness it
 14  implies a number of times in relation to Mr. Runciman in
 15  his reply submissions.   
 16                 Mr. Falconer this morning put a definition
 17  on the screen before you attesting to how a cover-up
 18  relates to illegal or unethical acts.  
 19                 Indeed Mr. Runciman's participation in the
 20  cover-up, the so-called cover-up is said to demonstrate
 21  his own consciousness of guilt.  That phrase is used at
 22  least twice in Mr. Klippenstein's reply submissions in
 23  respect of Mr. Runciman.
 24                 In my respectful view these are outrageous
 25  and irresponsible allegations.  As lawyers -- some of us

134
  1  here are criminal lawyers including me -- we know that
  2  the phrase, "consciousness of guilt" is a term of art
  3  applied in criminal law. 
  4                 Mr. Falconer said so this morning and he
  5  referred to your experience in the criminal courts when
  6  describing what the phrase means.  In other words, let
  7  there be no doubt as to the seriousness of the allegation
  8  Mr. Klippenstein has made.
  9                 Accordingly the maker of that allegation
 10  should set the allegation on a solid foundation. 
 11  Regrettably, however, what we have instead is an argument
 12  set on no foundation whatever.
 13                 The best Mr. Klippenstein can do is point
 14  out that Mr. Runciman did not order an investigation into
 15  his own conduct in relation to the allegation of
 16  political interference with the operations of the police.
 17                 His reply submissions say that Mr.
 18  Runciman denied such an investigation.  There's no
 19  indication to whom he denied it but in any event for his
 20  part Mr. Runciman acknowledged in his evidence that he
 21  could have ordered an investigation into his own conduct
 22  but that he couldn't imagine why he would have done so
 23  given that the underlying allegations had no merit.  And
 24  it's my respectful submission that that's exactly what
 25  this Inquiry has shown.  

135
  1                 But the fact of the matter is Mr. Runciman
  2  has never had anything to hide.  He told Mr. Rosenthal in
  3  cross-examination on January 11th that he was never
  4  personally opposed to an inquiry or an inquest.  He had
  5  no strenuous objections to it.  He had nothing to hide
  6  and this is apparent.  He cooperated with this Inquiry. 
  7  He waived his parliamentary privilege.  He gave his
  8  testimony in a very frank and fair manner.  He  simply
  9  never saw any merit or the need for an inquiry into the
 10  issue of political interference in the operational
 11  affairs of the OPP.  
 12                 And as it turns out, in my respectful
 13  view, he was right.  There was no interference.  And
 14  that's no disrespect to you or to this Inquiry.  In fact
 15  it's been good for Mr. Runciman since all of the evidence
 16  has pointed out that he did absolutely nothing wrong.
 17                 Even for those who disagree with his
 18  assessment as to whether or not there was a need for an
 19  inquiry into that particular question to call his
 20  conduct, his judgment, his opinion on this matter a
 21  cover-up, to cast it in the terms of criminal law is
 22  still beyond the pale. 
 23                 Reasonable people can disagree about the
 24  need for an inquiry.  Disagreeing that there is an
 25  inquiry does not mean you've engaged in a cover-up; that

136
  1  you're doing something dishonest or underhanded or that
  2  he's conscious of some guilt on his part.
  3                 Guilty of what I ask?  Guilty of what? 
  4  What did Robert Runciman do wrong?  There's not one (1)
  5  single thing in my respectful submission, Commissioner. 
  6  There's simply no evidence anywhere in the record, the
  7  massive record before you, that Robert Runciman did one
  8  (1) thing wrong.
  9                 On the contrary, he governed himself at
 10  all times properly.  He did not interfere in the
 11  operations of the police.  He made sure others knew of
 12  the policy against doing so and he never saw anyone
 13  violate it and he engaged in no cover-up.
 14                 And I pause to note here that Mr.
 15  Falconer, who has made extensive submissions about a
 16  cover-up, not even Mr. Falconer would include Mr.
 17  Runciman in that allegation.  There's simply no evidence
 18  whatever.
 19                 Let's assume for the moment that
 20  Mr. Harnick's evidence about the words attributed to
 21  Mr. Harris are accepted, on the evidence of everyone
 22  present at the meeting at the end of the meeting there
 23  was no direction of any kind given to the OPP.  The
 24  witnesses are unanimous on this point.
 25                 There was no order to get the occupiers

137
  1  out of the Park.  There was no direction given as to how
  2  the injunction was to be enforced.  No direction given as
  3  to when the injunction was to be enforced.  No direction
  4  was given as to whether force should be used to enforce
  5  it.  The only direction was to the Attorney General; go
  6  and get an injunction.  
  7                 I pause here to note two (2) things. 
  8  There's nothing wrong, as Mr. Strosberg just said, in
  9  getting an injunction.  In fact, My Friend, Mr.
 10  Henderson, and his thoughtful submissions on this point
 11  yesterday, acknowledged that getting injunctions is still
 12  a piece of the puzzle in responding to these kinds of
 13  problems.
 14                 And the second point I wish to note is
 15  that Dudley George died before the injunction could even
 16  be applied for.  In other words, and I follow along on
 17  Mr. Strosberg's point on this point, there's simply no
 18  causal connection between the decision to get an
 19  injunction and what unfolded on the evening of September
 20  6th.
 21                 And in the face of all of this to describe
 22  Mr. Runciman's conduct as guilty, as a transgression, as
 23  an underhanded cover up is simply completely unfounded
 24  and irresponsible.
 25                 Mr. Runciman governed himself, as I've

138
  1  said in my written submissions, at all times
  2  professionally, cautiously, dispationately and in
  3  complete good faith.  This is not simply self-serving
  4  advocacy on my part.  This is what the evidence shows. 
  5  There's no evidence to the contrary and I ask you to
  6  reject completely Mr. Klippenstein's submissions to the
  7  contrary.
  8                 I'm going to end with three (3) small
  9  points that are raised in some of the submissions of My
 10  Friends.  Yesterday Mr. Klippenstein referred to the
 11  handwritten note that reads "lots of political pressure. 
 12  Strong in house comments by Premier/ Solicitor General".
 13                 My point here is simply that there is -- I
 14  don't deny the existence of the note, of course, but
 15  there's simply no evidence that Mr. Runciman ever made
 16  any such statement anywhere.  And certainly not in the
 17  House which was not sitting.  He made no strong comments
 18  about the Ipperwash issue to anyone; that is the
 19  uncontroverted evidence of everyone who gave evidence on
 20  that point.
 21                 Secondly, Mr. Klippenstein's written
 22  Submissions in Reply suggest that Mr. Runciman wants to
 23  blame the previous governments for the tragedy at
 24  Ipperwash.  In my respectful view this is a complete
 25  misreading of my submissions on Mr. Runciman's behalf. 

139
  1                 Mr. Runciman doesn't blame anyone for the
  2  death of Dudley George.  All he did was point out that
  3  many of the policies in play were developed under
  4  previous governments.  It's a fact.  It's not to blame
  5  anyone.  That's simply a fact.
  6                  And in combination with the fact that the
  7  Government of Mr. Harris was weeks old at the time, it
  8  displays how absurd the suggestion is that the
  9  government's policies had anything to do with the
 10  occupation or the manner in which the police responded. 
 11                 The last point that is raised in the
 12  submissions in-chief of the municipality, I didn't want
 13  you to leave you with the impression that no one had any
 14  criticisms of Mr. Runciman prior to the delivery of
 15  Mr. Klippenstein's reply, in those submissions there is a
 16  suggestion that the Solicitor General's Office could have
 17  done a better job of communicating with the community
 18  after the shooting of Mr. George.
 19                 Although I think it may be the case that
 20  the criticism levelled is more of an institutional one
 21  (1) than a personal one (1) to Mr. Runciman, and I'm not
 22  sure that it's a failure that can be visited personally
 23  on Mr. Runciman.
 24                  In any event the municipality has made a
 25  number of suggestions about improving communication

140
  1  between the provincial government and the community and
  2  they seem reasonable to us and to Mr. -- to Mr. Runciman. 
  3                 I'll close by saying what others have
  4  said, I thank you for your attention and courtesy and
  5  patience with us and with me and I wish you the best of
  6  luck and wisdom as you write your report.  Thank you. 
  7                 COMMISSIONER SIDNEY LINDEN:   Thank you
  8  very much, Mr. Smith.  Thank you very kindly.
  9                 And I'll hear from Mr. Fredrick on behalf
 10  of Mr. Hodgson.
 11  
 12                      (BRIEF PAUSE) 
 13  
 14  FINAL SUBMISSIONS FOR MR. CHRISTOPHER HODGSON:
 15                 MR. MARK FREDRICK:   Thank you,
 16  Commissioner.  Before I begin submissions on behalf of
 17  Mr. Hodgson, I'd like to take this opportunity as well to
 18  thank you and Commission Counsel for the courtesy which
 19  was extended to Counsel for Mr. Hodgson, myself and my
 20  colleagues and, of course, to Mr. Hodgson himself.
 21                 I'd also like to thank my fellow learned
 22  counsel here and in particular, Mr. Millar, Ms. Vella and
 23  Mr. Worme for their professionalism and mutual assistance
 24  over the past two (2) years.
 25                 I commend all involved in this Inquiry on

141
  1  their keen sense of professionalism that they exhibited. 
  2  It's also a tribute to you in the manner in which this
  3  Inquiry was conducted in pursuit of your mandate.
  4                 I finally have to thank my colleagues, in
  5  particular Peter Lauwers and a number of people from my
  6  office who jumped in on this matter.
  7                 I took this brief on on the understanding
  8  that it was going to be a three (3) month exercise and
  9  that was an optimistic estimate at the time, but I can
 10  say I am glad to be here today to make these final
 11  submissions.
 12                 Mr. Hodgson began his evidence with his
 13  condolences to the George family on their loss and
 14  echoing Sam George's comments made yesterday, Mr. Hodgson
 15  is hopeful that this Inquiry will provide some insight to
 16  the George family as well as to other parties on how such
 17  incidents may be avoided in the future.
 18                 There is not a great deal to make reply to
 19  the submissions made to date vis-a-vis Mr. Hodgson.  I
 20  commend to you our written submissions and brief to the
 21  point.
 22                 I propose briefly to emphasise the keys
 23  points of Mr. Hodgson's evidence, and evidence and
 24  positions of other parties who refer to his actions in
 25  this matter.

142
  1                 By way of overview, you will recall that
  2  Mr. Hodgson was Minister of Natural Resources immediately
  3  prior to and at the time of the Ipperwash Park
  4  occupation.
  5                 When concerns were raised about a possible
  6  protest at the Park, it is important to note that
  7  management of the situation was left to the Ontario
  8  Native Affairs Secretariat, part of the AG's department
  9  and not to the MNR.
 10                 The unrest was certain of the Aboriginal
 11  community then being expressed was, from the view point
 12  of Mr. Hodgson and his staff, not an MNR issue.
 13                 The MNR had long peacefully co-existed
 14  with the Native community in the area and the evidence
 15  established the MNR had accommodated Aboriginal usage of
 16  the Park.
 17                 Furthermore, those expressing unrest were
 18  not representative of the local government and their
 19  chief.  
 20                 Mr. Hodgson was not a participant in any
 21  discussions with the Stoney Pointers in the summer of
 22  1995.  He did not know their motivation for occupying the
 23  Park but it was widely held -- a widely held view which
 24  he shared as well that they were trying to draw attention
 25  to the failure of the Federal Government to return the

143
  1  adjoining military base to the First Nations in a clean
  2  state.
  3                 After the occupation of the Park,
  4  management of the Ipperwash situation remained with ONAS
  5  and the Provincial Police.  It was not an MNR issue.
  6                 The only items relevant to the MNR at this
  7  time were addressing matters of public safety and
  8  infrastructural protection and certainly we heard
  9  evidence to that effect.
 10                 This was accomplished through closure of
 11  the Park and evacuation of the Park personnel.
 12                 As Minister for the entity that had title
 13  to and operated the Park on behalf of the Crown, Mr.
 14  Hodgson was requested by an Interministerial Committee to
 15  speak to a press scrum on the 5th of September 1995.
 16                 He did so, but he didn't have any
 17  subsequent press contact.  His evidence was that he did
 18  as he was asked in addressing the press, even though he
 19  and his staff had expressed some reluctance to him doing
 20  so on the grounds that the MNR didn't have responsibility
 21  for responding to this issue.
 22                 Mr. Hodgson was disappointed that efforts
 23  had not been made earlier in the summer to diffuse the
 24  situation, but that disappointed he laid at the rest --
 25  at the feet, I should say, of ONAS and not necessarily

144
  1  the OPP.
  2                 Mr. Hodgson had a positive record and view
  3  of the First Nations people and participated in resolving
  4  conflicts both before and after Ipperwash that were
  5  within the purview of his Ministry.
  6                 He tried personally to assist and met with
  7  Chief Bressette in an attempt to de-escalate the
  8  situation.  He suggested neutral mediators be brought in. 
  9  He even wrote letters to the Federal Crown to assist in
 10  resolving the conflict and in pursuit of that goal of
 11  returning the Military Base to the First Nations in a
 12  clean state and in good condition.
 13                 At no time did Mr. Hodgson attempt to
 14  direct the police, nor did he witness anyone attempt to
 15  direct the police.  He was well aware of the strict
 16  separation between the policing function which is the
 17  exclusive responsibility of the police and the function
 18  of government.
 19                 In terms of the Commission's mandate it's
 20  respectfully submitted that the finding should be made
 21  that Mr. Hodgson did not and made no effort to direct the
 22  police.
 23                 Some other key points, and these mirror
 24  the points made in our submissions.  The first is the
 25  comment allegedly made by Premier Harris.  Mr. Hodgson

145
  1  was clear in his evidence that he did not hear the
  2  Premier make the comment alleged to have been made by him
  3  and the notation for that is the January 12th, 2006,
  4  transcript, Volume I, at pages 199 to 201.
  5                 Secondly, some question raised about
  6  whether Mr. Hodgson made an untoward remark.  Mr.
  7  Hodgson's evidence was that he said nothing during the
  8  meeting in the Cabinet dining room.  With the sole
  9  exception of Dr. Todres, no one else at the dining room
 10  meeting and at least the other -- at least nine (9)
 11  others who were there on my count who gave evidence
 12  testified that they heard Mr. Hodgson say such a thing. 
 13  A number corroborated Mr. Hodgson's own position that he
 14  didn't say a thing at the meeting.
 15                 It is submitted that Dr. Todres, who
 16  admittedly could not recall some other significant
 17  details of this meeting and admittedly in a room
 18  recalling something ten (10) years later, was simply
 19  mistaken in attributing the alleged statement to Mr.
 20  Hodgson.  That no party supports her on this point is
 21  telling.
 22                 It is respectfully requested the
 23  Commissioner make an express finding that Mr. Hodgson did
 24  not make the alleged comment.
 25                 Now, we have read in the reply submission

146
  1  of the OPP which attempts at great lengths to reinforce
  2  Mr. Fox's credibility in an attempt to discredit Mr.
  3  Hodgson, to a large extent we join issue and leave it to
  4  you, Mr. Commissioner, to sort out that evidence.  We do
  5  not retreat from anything in our submission.
  6                 It's disappointing to find that Counsel
  7  for the OPP has relied upon the evidence of Dr. Todres
  8  which ascribes the offensive remark to Mr. Hodgson, one
  9  that no other witness apparently heard including their
 10  own OPP witnesses.
 11                 What is most disappointing, however, is
 12  Counsel for the OPP attempts to buttress Dr. Todres'
 13  evidence in that respect by using the evidence of Scott
 14  Patrick and this is how it's done, and I take you to page
 15  205 paragraph 23 of the OPP submission where the
 16  following is made and quote's:
 17                   "Elaine Todres had a vivid recollection
 18                   of Mr. Hodgson saying, Get the
 19                   [expletive] Indians out of my Park."
 20                 I hope you don't mind me using the term,
 21  'expletive'.  I'm so tired of hearing in every aspect of
 22  society in life that word that has been --
 23                 COMMISSIONER SIDNEY LINDEN:   It's been
 24  used in this hearing room.  It's on the record.
 25  

147
  1  CONTINUED BY MR. MARK FREDRICK:
  2                 MR. MARK FREDRICK:   Well, in the presence
  3  of -- I'll avoid it.  She was -- I'll continue with the
  4  quote.
  5                   "She was struck by the possessive,
  6                   quote 'my' used in connection with the
  7                   Park.  The use of that descriptor only
  8                   makes sense emanating from the Ministry
  9                   of Natural Resources Mr. Hodgson."
 10                 And then they write:
 11                   "Scott Patrick corroborated that
 12                   account."
 13                 And I -- that's the word I take issue
 14  with.  
 15                   "He testified that Minister Hodgson was
 16                   quite angry because his officials had
 17                   been assured by the OPP that the Park's
 18                   occupation could be prevented; that he
 19                   was a property owner; that it was his
 20                   Park and he wanted it back. 
 21                   It's important to recognize Mr. Patrick
 22                   did not corroborate the assertion made
 23                   by Dr. Todres Mr. Hodgson had made that
 24                   comment."
 25                 The OPP reply at page 241, summarizes the

148
  1  evidence of Dr. Todres as follows:
  2                   "1.  That the Premier was communicating
  3                   a level frustration at the fact that
  4                   the occupiers were still in the Park.
  5                   2.  That Dr. Todres agreed with
  6                   Inspector Scott Patrick's recollection
  7                   that Mr. Hodgson indicated during a
  8                   meeting that he was the property owner,
  9                   it was his Park and he wanted it back,
 10                   and he was angry when he spoke out
 11                   about that issue, and
 12                   3.  Dr. Todres was deeply concerned
 13                   about his comment."
 14                 There is an effort to reinforce this
 15  summary of the evidence by referring to Patrick's
 16  testimony at page 242 of the OPP reply where the
 17  following appears.  It's attributed to Mr. Patrick.  
 18                   "1.  After the Premier left the meeting
 19                   and before Inspector Patrick and
 20                   Superintendent Fox left, Mr. Hodgson
 21                   began speaking to Fox and gave the
 22                   appearance that he was angry.  He
 23                   indicated that his officials had been
 24                   assured by the OPP that the Park's
 25                   occupation could be prevented.  

149
  1                   2.  Hodgson said that he was the
  2                   property owner, it was his Park and he
  3                   wanted it back."
  4                 By putting the evidence this way the OPP
  5  reply is trying to use Fox's evidence about the dining
  6  room meeting to reinforce the Todres testimony about Mr.
  7  Hodgson making an allegedly offensive remark.
  8                 This is like trying to cross a canyon in
  9  two (2) steps.  Mr. Commissioner, nothing Mr. Patrick
 10  says actually corroborates Dr. Todres' evidence in that
 11  Mr. Hodgson made the offensive remark but that is
 12  precisely what I suggest the OPP reply tried to make the
 13  evidence say.
 14                 The basic problem for the OPP reply is
 15  that Mr. Patrick didn't -- didn't corroborate Dr. Todres
 16  on that point at all.  The following exchange is most
 17  telling and you may recall Dr. Todres saying in her
 18  evidence that "silence fell momentarily after the remark
 19  was made.  It occurred in the context of the full
 20  meeting." 
 21                  The evidence of Mr. Patrick was and the
 22  quote comes from October 17th at page 143:
 23                   "During the Premier's meeting while the
 24                   Premier was actually in attendance
 25                   you've testified that Mr. Hodgson did

150
  1                   not say anything at the meeting for
  2                   that portion?
  3                   A:   That's correct."
  4                 So it just didn't happen.  The effort to
  5  spin the evidence of Dr. Todres and Mr. Patrick together
  6  is basically unfair and we urge you to decline making the
  7  finding suggested by the OPP.  
  8                 Now, some moment is made of Mr. Hodgson's
  9  lack of recollection during the discovery which was held
 10  some years ago.  Mr. Hodgson frankly acknowledges that
 11  his memory has been refreshed in part by Mr. Fox's
 12  evidence which Mr. Hodgson acknowledge he corroborates in
 13  large measure.  The points of disagreement are, however,
 14  very firm. 
 15                 Finally, much is made of the fact that
 16  there is no record of Mr. Hodgson attending an IMC
 17  meeting.  The meeting with Mr. Fox occurred, as Mr.
 18  Hodgson testified, after the IMC meeting and, therefore,
 19  before the dining room meeting and the two (2) -- there's
 20  an issue about that.  So it's not surprising that there's
 21  no record of Mr. Hodgson's attendance.  
 22                 All in all, to the extent that it is
 23  necessary for you to resolve these issues of credibility,
 24  we urge you to find in favour of Mr. Hodgson.  There may
 25  be no need for you to make credibility findings on the

151
  1  details given your mandate.  We do urge you particularly
  2  to find Mr. Hodgson did not make the offensive remark
  3  used by Dr. Todres.
  4                 Now, did Mr. Hodgson know that Mr. Fox was
  5  a police officer?  His evidence in that respect is
  6  categorical.  He did not know at any of the relevant
  7  times that Mr. Fox was a police officer.
  8                 Throughout the submissions and the
  9  submissions we made, Mr. Fox was not given his police
 10  title.  This is not to disrespect his office, but to
 11  recognize the undeniable fact that he was not acting in
 12  the capacity of a police officer at any time during the
 13  Ipperwash situation.
 14                 He had no operational responsibility
 15  whatsoever.  Mr. Hodgson states unequivocally that he did
 16  not know that Mr. Fox was a police officer nor did he
 17  have any idea that he would report any discussions with
 18  government officials to Inspector Carson or to any other
 19  OPP active duty officer and there's no evidence to
 20  challenge that.
 21                 Now, the next point I want to address is
 22  the timing of the exchange between Mr. Hodgson and Mr.
 23  Fox.  There's no doubt they had a full exchange of views. 
 24  There's a measure of commonality around the substance of
 25  those views but there are also major discrepancies.  It

152
  1  is respectfully submitted that the evidence of Mr.
  2  Hodgson should be preferred where the evidence conflicts. 
  3                 Now, the content of those exchanges was
  4  another matter that came up before you.  The record of
  5  the exchange between Mr. Hodgson and Mr. Fox that is most
  6  contemporaneous with the event is, of course, the
  7  transcript between Mr. Fox and the Incident Commander,
  8  John Carson, which occurred on September 6th, 1995.  The
  9  famous Exhibit P-44A (sic) at Tab 37.
 10                 It is fair to say that Mr. Fox was
 11  embarrassed and somewhat defensive about this telephone
 12  call which My Friend mis-characterized as being quote
 13  unquote "intemperate" and with good reason. 
 14                 The excerpts from Mr. Fox's evidence
 15  contain testimony that is correct and corresponds to Mr.
 16  Hodgson's evidence.  There is difficulty, however, with
 17  Mr. Fox's invocations of the Serpent Mounds co-management
 18  example as something that he testifies that he refers to
 19  having raised in that conversation and that his reference
 20  to his testimony on July 12th, 2005, at page 72, and
 21  again repeated at page 22 of our submission.
 22                 We submit this adversely affects his
 23  credibility on those points.  Mr. Fox was in no position
 24  to bring forward Serpent Mounds co-management precedent
 25  in his conversation with Mr. Hodgson because it was not

153
  1  then even a possibility.  
  2                 The Serpent Mounds occupation occurred
  3  over the Labour Day weekend and the co-management
  4  solution did not come until later in the fall.  The
  5  evidence of both Mr. Hodgson and Mr. Bangs, and the quote
  6  is from November 3rd, 2005, Volume I, page 42 is
  7  categorical in this respect:
  8                   "The prospect of co-management at 
  9                   Serpent Mounds did not arise until well
 10                   after the incident at Ipperwash."
 11                 The co-management agreement was therefore
 12  reached some time after.  Mr. Fox is, with respect,
 13  confused or has made some part of that conversation up in
 14  an effort, one assumes, to cast himself in a more
 15  favourable light.
 16                 Now, the OPP reply suggests that it is
 17  absurd that Mr. Fox would be trying to portray himself in
 18  a good light, having admitted that the language he used
 19  with Inspector Carson was, quote, unquote, "intemperate"
 20  but that's exactly what they've gone on to do and that's
 21  exactly what happened.
 22                 There were clearly misunderstandings
 23  between Mr. Fox and Mr. Hodgson that are rooted in the
 24  undefined status of Mr. Fox.
 25                 Mr. Hodgson was perplexed about the nature

154
  1  of Mr. Fox's responses because he didn't know or didn't
  2  understand that Mr. Fox was a police officer.
  3                 Mr. Fox, for his part, was defensive about
  4  the situation at Ipperwash because he was a police
  5  officer and thought that Mr. Hodgson was criticising the
  6  police operation, which wasn't the case.
  7                 This may, in part, explain the significant
  8  emotion in Mr. Fox's subsequent conversation with
  9  Inspector Carson and then with Inspector Cole -- with
 10  Superintendent Coles, I should say, which led in turn to
 11  three (3) warnings or points, I suppose, as Inspector
 12  Coles or Superintendent Coles made to caution Mr. Fox to
 13  cool down, be careful, and stay away from operational
 14  concerns.
 15                 And those can be attributed to Inspector
 16  Coles, August 16th, 2005 at pages 208 to 214.
 17                 Mr. Fox no longer had any direct
 18  communication with the command post after his
 19  conversation with Commissioner Coles which he admitted
 20  being told to keep a lid on it and that's his admission
 21  on July 13th, 2005, at page 202.
 22                 Regrettably, Mr. Fox confused his civil
 23  service role with his police identity and completely
 24  misconstrued Mr. Hodgson's comments, his attacks on the
 25  police, for whom he became quite defensive.

155
  1                 His evidence in this Inquiry, buttressed
  2  only by his loyal assistant, fellow OPP officer Patrick,
  3  was an effort to respectively justify what he said and
  4  did.
  5                 His evidence in that regard wasn't candid
  6  and the effort must be seen to have failed.
  7                 Now, the next point is and you'll be
  8  relieved to hear I've only got two (2) points left to go. 
  9  Did Mr. Hodgson direct the police?
 10                 Well, Mr. Hodgson denies ever directing
 11  the police and there's no evidence that he did so.  Any
 12  remarks he made to Mr. Fox were not directions to the
 13  police, since he did not know that Mr. Fox was a member
 14  of the OPP.
 15                 In any event, Mr. Fox had no operational
 16  responsibility with respect to the incident.
 17                 Mr. Fox agreed that neither Mr. Hodgson
 18  nor his staff instructed him to direct the OPP and that
 19  comes from July 13th, 2005, pages 168 to 169.
 20                 It was Mr. Hodgson's understanding that
 21  there is a bright line between police functioning and the
 22  ordinary business of government and that was his
 23  testimony throughout and the reference is from January
 24  12th 2006, at page 38.
 25                 Finally, on the burial site issue, Mr.

156
  1  Hodgson's evidence was that throughout the period of time
  2  leading to the fatal shooting of Mr. George, he was not
  3  aware the Stoney Pointers were making a land claim in
  4  respect of Ipperwash Park.
  5                 He had been told that the Crown had clear
  6  title to the Park.  Even today, there is no land claim on
  7  the Park.
  8                 Mr. Hodgson's evidence was that the
  9  existence of a burial site in the Park could not justify
 10  an occupation of the Park in any event.
 11                 The practice of the MNR was to give First
 12  Nations access to burial sites on park property in
 13  accordance with the Cemeteries Act to erect a fence
 14  around the site in order to preserve it.
 15                 And that was Mr. Vrancart's evidence,
 16  October 27th at page 182.
 17                 There can be no doubt that had a burial
 18  site been identified or even suggested that the MNR would
 19  have taken steps to see that site respected.
 20                 My closing observations were that Mr.
 21  Hodgson gave his evidence without hesitation, his
 22  evidence was not shaken despite extensive cross-
 23  examination nor was his evidence contradicted in material
 24  part by the credible evidence of other witnesses.
 25                 His testimony established conclusively

157
  1  that he had a positive relationship with First Nations
  2  peoples and had participated before in achieving
  3  solutions to conflicts that had arisen concerning areas
  4  for which his Ministry was involved; that he saw the
  5  protest as caused by the inaction of the Federal
  6  Government in failing to return the military base to the
  7  proper First Nations in a clean state as obligated.
  8                 He thought the Park occupation was
  9  actually about the military base and not about the Park
 10  itself, either in terms of a land claim or the possible
 11  presence of a burial site.
 12                 He saw the occupation above all as a
 13  police matter.  His sole participation in the media scrum
 14  was not his idea but was a responsibility he undertook.
 15                 Mr. Hodgson understood the strict
 16  separation between the policing function, which is the
 17  sole responsibility of the police and the functions of
 18  general government.  He knew that it was inappropriate
 19  for politicians to direct the police.  He did not do so,
 20  nor did he attempt to do so.
 21                 And finally, his conversation with Mr. Fox
 22  could not be interpreted as a direction to the OPP in
 23  relation to the Ipperwash situation.  He did not know Mr.
 24  Fox to be a police officer or he did not have -- he did
 25  not know he had any responsibility, and goodness knows

158
  1  Inspector Fox had no operational responsibility for the
  2  Ipperwash situation.  He had no contact with the police
  3  whatsoever.
  4                 Later Mr. Hodgson tried to assist Chief
  5  Bressette in finding a solution but as a result of the
  6  Federal Government's refusal to engage in the effort it
  7  was doomed to failure.
  8                 Finally, in closing I would say Mr.
  9  Hodgson did not again make the statement alleged to him
 10  by Dr. Todres.
 11                 Mr. Commissioner, I'd like to thank you
 12  very much.  I commend to you submissions.  I commend you
 13  the arguments of my fellow counsel who voice the same
 14  view and I thank you again.
 15                 COMMISSIONER SIDNEY LINDEN:   Thank you
 16  very much, Mr. Fredrick.  
 17                 MR. DERRY MILLAR:   Commissioner, the next
 18  submission would be from Mr. Sulman on behalf of Mr.
 19  Beaubien and it might be appropriate, subject to what Mr.
 20  Sulman -- Sulman wants but -- suggests -- but it might be
 21  appropriate to break for lunch and come back in an hour.
 22                 COMMISSIONER SIDNEY LINDEN:   I think
 23  that's a good suggestion.  That's what we'll do.  We'll
 24  break now for lunch.
 25                 THE REGISTRAR:   This Inquiry stands

159
  1  adjourned until 1:45.
  2  
  3  --- Upon recessing at 12:41 p.m.
  4  --- Upon resuming at 1:47 p.m.
  5  
  6                 THE REGISTRAR:   This Inquiry is now
  7  resumed.  Please be seated. 
  8                 COMMISSIONER SIDNEY LINDEN:   Good
  9  afternoon, Mr. Sulman.
 10                 MR. DOUGLAS SULMAN:   Good afternoon, Mr.
 11  Commissioner.
 12                 COMMISSIONER SIDNEY LINDEN:   Good
 13  afternoon.
 14                 MR. DOUGLAS SULMAN:   I had a few
 15  preliminary comments that I'd like to make.  My voice is
 16  a little weak today and I hope it holds up but if not,
 17  I'll just bark a little louder I guess.
 18  
 19  FINAL SUBMISSIONS FOR MR. MARCEL BEAUBIEN:
 20                 MR. DOUGLAS SULMAN:   As you're aware I've
 21  been from the very outset, I've been present on most days
 22  throughout the Inquiry and with very minor exceptions. 
 23  And I've also attended the Part 2 presentations, most of
 24  which were very valuable, but frankly, had little to do
 25  with my client.

160
  1                 But my attendance at the Hearing days on
  2  those events is in large part, but out of respect for the
  3  process undertaken in this Inquiry.
  4                 And -- and I suggest that it is important
  5  in civil society that judicial processes be accordingly
  6  respected.  Before I go further, I want to complement
  7  you, Mr. Commissioner, not just on the even-handed
  8  approach, I sound like I'm joining a chorus. 
  9                 But I want to compliment you not only on
 10  the even handed approach you've taken in this long and
 11  often difficult and sometimes testy process.  But I want
 12  to comment on something that others haven't.
 13                 And that is the dignity which you brought
 14  to the process.  And the entire process has been framed
 15  by that.  And I think some of our behaviour has been
 16  brought in as a result of that dignity and I thank you
 17  for that.
 18                 I view our role in this process is
 19  threefold.  That is my client's role.  First and obvious
 20  is to assist you in a search for the truth.  And when I
 21  say truth, it's -- it's not myth, it's not speculation,
 22  it's not allegation but -- but the unvarnished truth.
 23                 Secondly, of course, my role is to defend
 24  my client's reputation and I've tried to do that
 25  throughout.

161
  1                 But thirdly and -- and I think very
  2  importantly, our role has been somewhat to add a balance
  3  so that the Commission is aware that the local community
  4  is also a victim arising out of the incidents of
  5  September 1995, and I think that's an important role.
  6                 And perhaps also to act as a reminder that
  7  the healing that you've addressed so eloquently and the
  8  healing that we agree needs to be taking place is not
  9  just healing limited to the Native community.
 10                 But there's also a healing that is a much
 11  wider sense needed for this entire community.  Throughout
 12  our participation in the Inquiry, we've tried to follow
 13  that direction that you gave us, to be efficient and
 14  hopefully we've combined that efficiency with some
 15  effectiveness from time to time both in our oral and
 16  written advocacy.
 17                 To that end I didn't file a written reply
 18  because we're trying to be effective and efficient.  And
 19  it's not because we agreed with all the other submissions
 20  but rather my understanding of reply is that I ought use
 21  it to address new matters that are raised and frankly in
 22  our view, there was nothing new that merited reply in the
 23  arguments before you.
 24                 Now I intend today to try to continue that
 25  efficiency and effectiveness.  So I'm going to briefly

162
  1  address the background of the occupation of the Ipperwash
  2  Provincial Park and then our client's role in this
  3  matter.
  4                 And then I'm going to try to touch on a
  5  few other final points.  I'm not going to review in
  6  detail our -- our submissions and we made several
  7  recommendations.  I'm only planning on touching on one of
  8  them.
  9                 The first thing I want to address though
 10  is the eight hundred (800) pound gorilla that's not in
 11  the room.  The -- the Federal Government, we can't forget
 12  about them.  And so I'm going to start off by addressing
 13  that issue.
 14                 The Federal Government's occupation of the
 15  Stoney Point lands and the -- the creation of the
 16  Canadian Forces Base Ipperwash was a legitimate action
 17  within the Rule of Law under the War Measures Act in the
 18  initial years of the Second World War.  We do not take
 19  the position -- we do not say it was an appropriate
 20  action as stated by Ms. Esmonde in -- in her reply, but
 21  rather that it was legitimate, that being that it was in
 22  accordance with provisions of the Statute in place at the
 23  time.
 24                 We make no comment whatsoever on the
 25  appropriateness of taking the Stoney Point lands versus

163
  1  other lands that may have been available, only that it
  2  was taken within the Rule of Law and the Law of Canada at
  3  the time.
  4                 Now, up until September 4th, 1995, with
  5  the entry of the Aazhoodena people and others into the
  6  Provincial Park, the issue was the occupation of Canadian
  7  Forces Base Ipperwash, and that was a Federal issue.  And
  8  there had been no longstanding festering dispute between
  9  the Province and the Kettle and Stony Point people over
 10  the Provincial Park.  There had been no land claim for
 11  the Park.  There had been no frustration over the length
 12  of the lands claim process with regard to the Park.  
 13                 Even on the now prominent issue of burial
 14  grounds as a reason for dispute with the Province, there
 15  was no evidence of years of ongoing requests by the
 16  Kettle and Stony Point people to the Province to protect
 17  it as a burial ground.
 18                 Chief Tom Bressette, you'll recall his
 19  evidence, he said he didn't think there was a burial
 20  ground at Ipperwash Provincial Park prior to September
 21  6th, when he saw mystery documents from Ron Irwin.  He
 22  specifically asked his own father-in-law, Charlie
 23  Shawkence about it.  And the former chief, Mr. Shawkence,
 24  said he didn't think there was a burial ground.
 25                 Now, the evidence before you shows that in

164
  1  a short time period, in August 1937, there was a Band
  2  resolution regarding the allegation of what was described
  3  -- and I quote -- "as an old Indian burial ground."  Then
  4  there was a letter from the Indian agent to the Federal
  5  Secretary of Indian Affairs, and then a letter from the
  6  Federal Secretary to the Provincial Deputy Minister under
  7  who's aegis the Park fell, and then a letter back to the
  8  Federal Secretary saying that the Province would respect
  9  the Indian wishes.
 10                 And with that the ball was in the Federal
 11  court, if you will, and that's where matters on that
 12  request ended.  I'm going to suggest that pointing
 13  fingers at this point or in 1995, that is should the
 14  Federal Government have acted, should the Band have
 15  written the Feds or the Province or pursue this with
 16  great vigour, should the Province have done something,
 17  none of that pointing of fingers is going to advance your
 18  inquiry into what went on at Ipperwash Park in September
 19  1995.
 20                 What is clear is that the issue was not
 21  pursued with vigour and I suggest that it can be safely
 22  said that that issue was dormant for some fifty-eight
 23  (58) years.
 24                 Then let's -- let's just for a moment --
 25  let's address a highly relevant question, in my

165
  1  submission highly relevant.  What if you were to adopt
  2  the positions of Mr. Klippenstein and Mr. Rosenthal that
  3  the longstanding concern over the burial grounds is a
  4  prime reason for the occupation of the Park on September
  5  4th, 1995.  
  6                 I put to you that the question is -- you
  7  have to ask is, if the protection of a burial ground,
  8  which My Friends suggest was known as early as 1937, what
  9  was the reason then, what was the event on September 4th,
 10  1995, what was that triggering event that occurred which
 11  necessitated a takeover and occupation of the Ipperwash
 12  Provincial Park to protect burial grounds at a time when
 13  the Park was closed to campers?  
 14                 What triggering event occurred on
 15  September 4th, if that is the basis for entering the
 16  Park?  What was so urgent from the perspective of
 17  protecting an ancient burial ground on that particular
 18  day as opposed to any other time earlier or taking some
 19  other steps?
 20                 And I suggest to you there's nothing. 
 21  Nothing has been put forward to answer that most logical
 22  question.  Nothing appears in the evidence to say why on
 23  that particular day.  I think the answer is, as Mr.
 24  Scullion correctly put it to you yesterday, the takeover
 25  of the Army Base and the takeover of the Park were all,

166
  1  in effect, part of the same process.
  2                 As Glen Bressette, Roderick George, and
  3  others and even Dudley George himself agreed, they needed
  4  to take over the Park to get media attention; that was a
  5  direct quote from Glen Bressette, quoting Dudley, because
  6  they weren't getting enough at the Army Base.
  7                 And, as a strategy, that was certainly
  8  effective.  What it did was place the province with a
  9  newly elected government, a Province who did not have a
 10  historic poor relationship with the local Aboriginal
 11  community, it placed that Province right in the center of
 12  a longstanding dispute with the Federal Government and
 13  the local Aboriginal community.
 14                 And it is our submission that in your
 15  report, you should find that the Federal Government
 16  inaction with regard to CFB Ipperwash, even as late as
 17  1995, led directly to the takeover of the Ipperwash
 18  Provincial Park.
 19                 I recognize that they haven't been a
 20  strong attender at the Inquiry over the last period of
 21  time, but it's important I think, for the public to
 22  understand what occurred between September 4th and
 23  September 6th, 1995, and to recognize the responsibility
 24  of the Federal Government in what occurred.
 25                 And it is, I submit, fair to ask, would

167
  1  the violence that occurred in the days of September 4th
  2  and 6th, have occurred had frustration over the inaction
  3  of the Federal Government not bubbled up and overflowed
  4  the Army Base resulting in the take over of the
  5  Provincial Park?
  6                 It is on September 4th that an issue which
  7  since appropriation in 1942 for some fifty-three (53)
  8  years has been a Federal matter suddenly with the cutting
  9  of the fences at Ipperwash Park became a Provincial
 10  matter for three (3) very crucial days in September 1995.
 11                 And it is our position while there can be
 12  no doubt about the ultimate right of the Kettle and Stony
 13  Point Band to the Army appropriated lands, there is no
 14  such obvious right to the Provincial Park lands and in
 15  either case, it is our submission that self-help is not
 16  the remedy to be used to assert such rights.
 17                 The Courts, which I suggest have not shown
 18  a reluctance to support Aboriginal rights in a fair and
 19  impartial manner in recent decades, are the proper route
 20  to be followed.
 21                 And the Courts and the judicial process
 22  are to be respected.
 23                 Now, let me turn from that more general
 24  issue of the Park occupation to the specifics of my
 25  clients, what I suggest is a tangential role once this

168
  1  matter becomes a Provincial issue.
  2                 There are several theories, allegations or
  3  myths relating to Mr. Beaubien's limited involvement in
  4  the Ipperwash incident.
  5                 Initially, the allegations were that he
  6  was speaking to Mr. Harris, that he was passing his views
  7  on to the OPP -- Mrs. Harris' views onto the OPP on the
  8  ground.
  9                 Well, the evidence from Mr. Beaubien, Mr.
 10  Harris, and in particular, Bill King, debunked this myth.
 11                 Mr. Beaubien's calls to Mr. King resulted
 12  in Mr. King placating Mr. Beaubien.  His correspondence,
 13  that is Mr. Beaubien's correspondence both in the form of
 14  a draft media release that was never released and his
 15  sending of a letter that a constituent had already sent
 16  to Mr. Harris, Mr. Harnick, and Mr. Hodgson and just
 17  sending it along to Mr. King, well, we know -- I guess it
 18  would be charitable to say that it was filed away.
 19                 I think that it was filed away in what is
 20  so often called the round filing cabinet.  But in any
 21  event, it was filed away and lost and didn't proceed to
 22  Mr. Harris.
 23                 The evidence is quite the opposite to that
 24  allegation that Mr. Beaubien was, in effect, Mr. Harris'
 25  man on the ground.

169
  1                 Mr. Beaubien was receiving precious little
  2  information from Queen's Park and his frustration was at
  3  a lack of communication from his own government and the
  4  paucity of direction or information at all from his
  5  government.
  6                 The next theory, sir, is that Mr. Beaubien
  7  had some personal animus towards the Natives occupying
  8  the Park and that he advocated an aggressive approach to
  9  be taken by the police.
 10                 Again, the evidence is quite contrary. 
 11  Each and every police officer who had contact with Mr.
 12  Beaubien testified that he advocated no action for the
 13  OPP to take.  He didn't advocate force be used, he didn't
 14  attempt to tell the police what to do and specifically no
 15  officers said he was trying to -- that they perceived
 16  that he was trying to pressure the police to take any
 17  action.  And this is the evidence from Carson, Coles,
 18  Linton, Parkin and Lacroix.
 19                 Oh, there was pressure on the police,
 20  there's no doubt about that.  But the pressure was from
 21  the facts of the incident itself and the media attention. 
 22  It was an incident of grave local community concern.  It
 23  was a takeover of a popular Provincial Park with an even
 24  larger Provincial Park nearby and rumoured to be next.
 25                 There was lots of pressure.  The takeover

170
  1  rapidly became a media event and that I suggest achieved
  2  the strategy that Glenn Bressette and Dudley George had
  3  spoken of.
  4                 Commissioner O'Grady, you'll recall his
  5  testimony and he testified that the pressure on an
  6  Incident Commander was part and parcel of the role.  It's
  7  expected.  But it is the incident as a whole that creates
  8  that pressure,  particularly in an incident at a
  9  Provincial Park, a popular Provincial Park, that's taken
 10  over in the full glare of the media.
 11                 Now there is also a theory or an
 12  allegation posited that Mr. Beaubien was trying to
 13  pressure or influence then Inspector Carson through
 14  Lacroix to take action against the occupiers.
 15                 This action is -- this allegation likewise
 16  is not supported by the evidence.  And when asked
 17  directly, what does Lacroix say?  He denies of course;
 18  says, none whatsoever.  He says that that is not what
 19  occurred.
 20  
 21                       (BRIEF PAUSE)
 22  
 23                 MR. DOUGLAS SULMAN:   If you'll give me
 24  just a moment.  I have some exact quotes for you that may
 25  be of assistance.  But you will find those in our -- in

171
  1  our argument that has been filed, our submission that has
  2  been filed.
  3                 But Lacroix specifically said that on May
  4  9th testifying before you, the question was put to him:
  5                   "And in the two (2) conversations you
  6                   had with Mr. Beaubien on September 5th,
  7                   did you form the impression that Mr.
  8                   Beaubien was trying to intimidate you
  9                   into taking any specific action by
 10                   advising you that he called the
 11                   Premier's office?
 12                   A:   No, I got more of a bit -- I got
 13                   it that he was more -- he was more
 14                   exasperated, you know, by the phone
 15                   calls he's receiving.  Not, you know,
 16                   demanding us to do anything.  I think
 17                   he was looking for a little bit of
 18                   information.
 19                    
                      Q:   And did you form the impression he
 20                   was trying to use his position as an MP
 21                   to somehow influence you to do
 22                   something as an OPP officer that you
 23                   might not otherwise have done?
 24                   A:   Not at all.
 25                   Q:   Just to be specific, I take it Mr.

172
  1                   Beaubien didn't ask you to do -- he
  2                   didn't demand any information from you
  3                   at any point in time?
  4                   A:   No, sir, no."
  5                 Is the answer from Wade Lacroix.  And
  6  question to Mr. Lacroix:
  7                   And he wasn't being belligerent or
  8                   bullying or intimidating you?
  9                   A:   No.  He was being friendly.  Like,
 10                   he was just more -- he knew about the
 11                   occupation and it was like, you know,
 12                   what can you give me.
 13                   Q:   And did he give you any impression
 14                   through his conversation with you that
 15                   he wanted you to do anything in
 16                   particular?  It was just that he was
 17                   getting calls and wanted to be able to
 18                   respond, correct?
 19                   A:  Yes.  He was simply looking for
 20                   information about what the police
 21                   response would be."
 22                 What does Chris Coles say about it?  On
 23  August 17th before you he was asked; 
 24                   "Well, that's what I want to know, in
 25                   particular with regard to Marcel

173
  1                   Beaubien. So can you just confirm that
  2                   he didn't attempt to instruct you with
  3                   regard to the OPP operations whatsoever
  4                   at Ipperwash Park operation."
  5                 And Chris Coles' answer is:
  6                   "To the best of my recollection, sir,
  7                   he did not."
  8                 And Coles went on -- there was further
  9  questions to Coles.
 10                   "And my question to you had been that
 11                   Mr. Beaubien, or the suggestion I put
 12                   to you that Mr. Beaubien didn't express
 13                   any personal concerns about OPP
 14                   policing in the area, rather he was
 15                   expressing the concerns and the
 16                   frustrations of the cottagers."
 17                 And the answer from Chris Coles is:
 18                   "Yes, sir."
 19                 We had -- we've had heard discussions
 20  about nuances and messaging and impressions.  And so
 21  Chris Coles was asked on August 17th, 2005 directly:
 22                   "And you didn't get the impression and
 23                   he didn't tell you directly, he didn't
 24                   give you the impression that he was
 25                   attempting to influence you, Carson,

174
  1                   Lacroix or Linton on how to do your
  2                   sworn duties at that meeting either,
  3                   did he?"
  4                 And the answer to that is:
  5                   "No, sir."
  6                 Are they telling the truth?  Is Parkin,
  7  Lacroix, Carson, Coles, are the telling the truth when
  8  they say that there was no attempted influence, they
  9  weren't being told what to do, Mr. Beaubien wasn't
 10  advocating a position, he wasn't interfering, he wasn't
 11  telling the OPP how to do their job?  Were they telling
 12  the truth?
 13                 Well, there's no nuances here.  They were
 14  asked these questions directly and they've answered them
 15  directly.
 16                 But what possible reason could they have
 17  for not telling the truth about Mr. Beaubien's role?  I
 18  mean, they were quite straightforward in their evidence. 
 19  And I suggest, sir, that there is no reason that they
 20  would want to be untruthful to protect Mr. Beaubien.
 21                 There's no advantage to them to protect a
 22  local backbench MPP who, by the time they gave their
 23  evidence, is long since out of office.
 24                 So when they gave their direct responses
 25  to direct questions, and I've tried to shorten it by not

175
  1  going through each and every one, there is ample
  2  evidence, because I took the time to carefully ask each
  3  officer as he came forward, they have no reason not to
  4  tell you exactly what they did.
  5                 They have no reason to protect him.  there
  6  is no reason not to believe their evidence.  But if there
  7  was ever any doubt, and I don't know how there could be,
  8  but if there was any remaining thought that Beaubien in
  9  any way attempted to influence the MP -- or the OPP
 10  through incident commander Carson, one only needs to read
 11  Carson's responses when he gave evidence on June 2nd,
 12  2005.
 13                 And I will spare you going through each
 14  one of those, but:
 15                   Q:   The scribe notes go on to say,
 16                   'John Carson states, that we want it
 17                   resolved; that we don't want anyone to
 18                   get hurt.'  Do you see that?
 19                   A:   Yes, I certainly emphasised that.
 20                   Q:   And Mr. Beaubien concurred in this
 21                   desire, correct?
 22                   A:   Oh, yes.
 23                   Q:   Now, at this meeting, did Mr.
 24                   Beaubien advocate that you use force to
 25                   remove the Natives from the Park later

176
  1                   that evening?"
  2                   "Absolutely not."
  3                 Is the answer.
  4                 You'll recall that this is the key meeting
  5  that hours have been spent on discussing the meeting at
  6  the incident -- at the command centre at the Provincial
  7  Detachment at Forest.
  8                 And Carson was further asked:
  9                   "And did he tell you he was passing on
 10                   instructions from the Premier of
 11                   Ontario, Mr. Harris, on how to conduct
 12                   police operations at Ipperwash
 13                   Provincial Park?
 14                   A:   Absolutely not.
 15                   Is it true that Mr. Beaubien...
 16                   Q:   Is it true that Mr. Beaubien did
 17                   not advocate any position for the OPP
 18                   to take in relation to police
 19                   operations at the Park?
 20                   A:   Correct. 
 21                   And did you take any actions or
 22                   instruct anyone on the evening of
 23                   September the 6th as a result of
 24                   meeting with Mr. Beaubien?
 25                   No, sir."

177
  1                 Is the answer.
  2                   "Was there anything that Mr. Beaubien
  3                   did at that meeting that caused the OPP
  4                   to call out the TRU team?
  5                   A:   None whatsoever."
  6                 Nothing could be clearer.  Absolutely
  7  nothing could be clearer.
  8                 And there is no reason that anyone can --
  9  has come forward with that would indicate why Inspector
 10  Carson would possibly be protecting Marcel Beaubien in
 11  2005.
 12                 So, I might move forward simply to
 13  summarize part of our position and that is, you'll recall
 14  in the summer of 1995 Beaubien was simply a newly elected
 15  backbench MPP with the little power that goes with being
 16  a backbench MPP.
 17                 He performed his role as the MPP in
 18  representing the views of his constituents both Native
 19  and non-Native who communicated their views to him in a
 20  plain -- and he communicated to them in a plain-speaking
 21  and straightforward manner.
 22                 Now, the evidence that you have before
 23  you, there's been suggestion that he only represented, to
 24  put it plainly, the white constituents.
 25                 And that isn't true.  That isn't what the

178
  1  evidence is before you.  The evidence is that he met with
  2  the cottagers, because they had concerns, but when he
  3  wanted to understand certain issues, he met with Tom
  4  Bressette, he met with Charlie Shawkence, he met with
  5  Robert Nobby George, and that was his evidence before
  6  you, unrefuted.
  7                 In communicating with the OPP during the
  8  summer of 1995 he breached no statute, no regulation, no
  9  policy, no guideline.  There was absolutely no
 10  prohibition, nor is there today, by statute, guideline,
 11  policy or otherwise, against communicating with the
 12  police in a local area.  In fact, it was encouraged.  And
 13  you've heard that evidence from the OPP.
 14                 He acted quite appropriately in performing
 15  his role as MPP, being the representative of his
 16  constituents.  He didn't hide from controversy, nor did
 17  he play possum when a problem presented itself to him.
 18                 There is no question that he's -- he's
 19  colourful in his speech sometimes.  There's no question
 20  that he's straightforward and plain-talking.  But that
 21  certainly is not something that he ought to be criticised
 22  for but maybe rather praised.
 23                 He had no personal interest in the outcome
 24  of the takeover.  He didn't live in this area.  When the
 25  occupation of the Ipperwash Park occurred he advocated no

179
  1  position for the OPP to take except that requested by his
  2  constituents and that is simply keep the peace and uphold
  3  the law.  And there can be no criticism for asking for
  4  that.
  5                 Mr. Strosberg went into an area that I had
  6  intended to cover and that is causation.  I'll simply say
  7  that while he was MPP for the area, Mr. Beaubien played
  8  no part in the death of Dudley George nor the actions of
  9  the OPP on the evening of September 6th, 1995.  There's
 10  absolutely nothing that one can point at that he did that
 11  can be said to be of a material cause in the death of
 12  Dudley George.
 13                 The fact that he attended at the Forest
 14  Detachment of the OPP and met with Carson in the Command
 15  Centre as opposed to meeting in a different office in the
 16  Detachment building proper had no impact on the events of
 17  the evening of September 6th.  It was not Mr. Beaubien
 18  who had control over what office they met in, where --
 19  and, in fact, he was invited in.
 20                 His meeting with Carson was at the same
 21  location as Carson had earlier met with Mayor Thomas. 
 22  And Carson's evidence is that the -- the content of the
 23  meeting was the same, that he told Mr. Beaubien the same
 24  things as he told Mayor Thomas.
 25                 Carson, by the way, was so unmoved by his

180
  1  conversation with Beaubien on the evening of September
  2  6th that he went to dinner with his friends and believing
  3  everything was under control and the status quo was in
  4  place.  So there wasn't anything too shocking that upset
  5  then Inspector Carson after meeting with Mr. Beaubien.
  6                 By the time Beaubien -- I think we've got
  7  to bear in mind that by the time Beaubien spoke to Carson
  8  on September 6th, Carson had already heard from Fox, who
  9  knew far more than Beaubien about the meetings and the
 10  discussions occurring at Queen's Park regarding the
 11  Government's decision to proceed pursuant to the laws of
 12  the Province to seek an injunction through the court
 13  system.
 14                 On September 6th it was Carson who briefed
 15  Beaubien, not the reverse.  And while Carson attempted to
 16  see if Beaubien had more information, it was pretty clear
 17  that that backbench MPP had no information to provide
 18  Carson that Carson did not already possess.  Beaubien
 19  didn't even know of the Interministerial Meeting and he
 20  certainly had no input into that meeting.
 21                 He had no contact with Premier Harris
 22  other than contact will Bill King.  And Bill King's
 23  evidence is that, in effect, he poo-poo'd it and didn't
 24  pass it on.
 25                 He had no contact with Attorney General

181
  1  Harnick, no contact with Minister Hodgson, Solicitor
  2  General Runciman or Deb Hutton, during the period
  3  September 4th to September 6th, 1995.
  4                 On September 6th Beaubien didn't even know
  5  that a meeting had occurred in the Premier's board room
  6  following the Cabinet meeting.  He had no knowledge of
  7  what language might have been used in that meeting or not
  8  used in that meeting.  He didn't know anything about the
  9  adjectives and -- or the nouns that may have arisen in
 10  that meeting.
 11                 While he was informed that the Government
 12  had decided to seek an injunction, he didn't even know
 13  the decision was made in that meeting.  So his only
 14  contact with Queen's Park was Bill King.  And although
 15  King assuaged Beaubien by telling him the Premier was
 16  aware and concerned with the situation in his riding,
 17  King didn't take Beaubien's concerns or Beaubien's faxes
 18  to the Premier or to anyone else for that matter.
 19                 I suggest that what King told Beaubien
 20  seems to me to be self-evident anyway.  There's been
 21  great interest in the fact that the Premier's concerned,
 22  but would any reasonable person not expect that the
 23  Premier of the Province would be concerned about the
 24  occupation of a Provincial Park or that he was following
 25  the situation closely?

182
  1                 Isn't that what is reasonable for the
  2  public to expect?  Isn't that his job?  Can't -- isn't
  3  that what the current Premier's doing in Caledonia?
  4                 It's -- it's a reasonable expectation that
  5  the Premier will be aware of the news media and will be
  6  aware of Provincial property under occupation.  But we've
  7  spent a lot of time on that.
  8                 The evidence is clear that in the
  9  September 4th to 6th time period, Beaubien was frustrated
 10  that he was receiving very little information from
 11  Queen's Park and likewise believed that he wasn't being
 12  listened to at Queen's Park, and wasn't being appreciated
 13  with his warnings of the magnitude of the problem.
 14                 I suggest to you that in the summer of
 15  1995, Mr. Beaubien had no influence in the decisions made
 16  at Queen's Park regarding the Ipperwash incident.
 17                 He was merely a constituency man, properly
 18  performing his role as a constituency MPP.  He wasn't a
 19  conduit to and from the Premier.  Never spoke to the
 20  Premier.       While the Premier was quite rightfully and
 21  aware and closely monitoring the situation, Beaubien had
 22  no contact, no influence on the Premier's views and no
 23  input into Government decision making that resulted in
 24  seeking an injunction.
 25                 He was simply performing his duty to

183
  1  represent his constituents and make their views known. 
  2  He may have added to political pressure felt by Carson,
  3  but no more so than the actions of Mayor Thomas.
  4                 And those political pressures from the
  5  local elected representatives only reflected the views of
  6  their community, only reflected the views of their
  7  constituents.  And Carson already knew about all these
  8  concerns from other sources including the media by the
  9  time he met with Mayor Thomas and Beaubien and, by the
 10  way, Chief Tom Bressette on September 6th.
 11                 So he wasn't just getting one side of the
 12  view, he had the -- the elected leaders from the Native
 13  community and from -- and Beaubien and Thomas.
 14                 I submit to you, sir, that it's
 15  disingenuous not to recognize that any incident that has
 16  widespread impact on a community, would cause there to be
 17  small political pressure on an Incident Commander.
 18                 The difference here is that a grave
 19  tragedy occurred, a death occurred and thereafter all the
 20  activities had been magnified in a retrospective
 21  examination.
 22                 In concluding this area, we ask that you
 23  find that Mr. Beaubien did absolutely nothing improper,
 24  that he properly represented his constituents, he did
 25  everything without malice, he did it in an open way, and

184
  1  he had no material role in causing the tragic death of --
  2  of Dudley George.
  3                 There is one (1) issue I think that bears
  4  some examination and that is so-called political pressure
  5  from the elected politicians allegedly causing Incident
  6  Commander Carson to act in a certain manner on the late
  7  evening of September 6th, such that the violent
  8  confrontation that resulted -- and then ultimately
  9  resulted in -- in the death of Dudley George.
 10                 I suggest to you that to place any
 11  credence in that theory, one must ask what Carson or
 12  Wright or Korosec or Linton, personally had to gain from
 13  elected politicians that they would gain from sending
 14  officers down the road to what, with the glare of the
 15  media, would certainly make headlines the next day.
 16                 Did -- did Marcel Beaubien, a backbench
 17  MPP, or -- or even Mike Harris, the Premier, control
 18  their individual salaries?  No.  Did Marcel Beaubien or
 19  Mike Harris control their advancement in the ranks?  No. 
 20  Could either of them fire the OPP officers?  No.
 21                 They had no -- they had no reason to be
 22  influenced directly by elected politicians.  The
 23  politicians -- who had a permanent position, the
 24  politicians or the police?  
 25                 Clearly, the politicians, at best, in 1995

185
  1  had a four (4) to five (5) year mandate and the police
  2  officers who were subject to dismissal, only under the
  3  Police Services Act.  They were, I'm going to suggest,
  4  independent.  I suggest to you that too often in this
  5  lengthy process, an allegation has been repeated so
  6  often, that it takes on a life of its own.
  7                 Simply by repeating that allegation does
  8  not make it a fact.  It must be supported by the evidence
  9  and so the so-called political influence, I suggest to
 10  you, is not supported on close examination of the
 11  evidence, nor is it borne out when -- when someone does
 12  ask those logical questions about how -- why a police
 13  officer would be influenced; how it advances their
 14  career, how it helps them.
 15                 It's not an analogy to a parent.  A parent
 16  controls the purse strings and controls many other things
 17  and directly impacts the progress and existence of a
 18  child.  That being is not the proper analogy here.
 19                 The system that we have in place currently
 20  protects the police from such political influence because
 21  their livelihood is not dependent on keeping one (1) or
 22  more politicians happy, or one (1) or more political
 23  parties happy.  They are independent from that.
 24                 The Premier of one day is the opposition
 25  leader the next day and vice versa.  And we clearly see

186
  1  that in -- today.
  2                 It's of no advantage for a police officer
  3  to curry favour of one politician to the detriment of the
  4  other, because someday that person may be in charge.  It
  5  just seems illogical.
  6                 I'd like to turn finally to one of our
  7  areas of recommendation.  And although I have given a
  8  series of recommendations before you, it's our respectful
  9  submission that it is important that your report be
 10  clear, as a first principle that, while the frustration
 11  of many of the Kettle and Stony Point people with the
 12  inaction of the Federal Government, was and is real and
 13  was and is understandable. While that frustration can be
 14  acknowledged, as a first principle, I respectfully
 15  submit, that there can be no condemnation of self-help as
 16  a remedy for such frustration and it is important that
 17  your report reflect that.
 18                 It is important, perhaps vital in our
 19  view, to reflect that in order to prevent violence in the
 20  future, to discourage occupations of lands whose title is
 21  in the name of others.
 22                 It is important, in our view, to uphold
 23  the Anglo-Canadian legal principles that disputes are to
 24  be resolved by the Courts and tribunals rather than
 25  taking matters into one's own hands.

187
  1                 Our legal system has long evolved from the
  2  days when disputes were settled by persons striking each
  3  other with sticks and clubs.  We've evolved past the time
  4  of hiring champions or knights to physically fight one's
  5  battles.
  6                 It is essential in our society that
  7  disputes be resolved by the proper tribunals and Courts,
  8  less the fabric of our society and the rule of law break
  9  down when people disregard proper processes and they do
 10  what they deem necessary to resolve disputes.
 11                 It is our position that self-help as a
 12  remedy tears at the social contract that we have in the
 13  nation to live peacefully with one another.
 14                 Now, as one counsel said yesterday, and I
 15  agree, that if Native people feel that they're not being
 16  dealt with fairly and justly, there will be more
 17  occupations like this. And that's important.
 18                 While it's disturbing to think that in
 19  modern Canada that all persons would not be treated
 20  equally, fairly and justly under the laws of Canada, it's
 21  equally concerning that self-help, if not discouraged,
 22  can be an effective strategy for circumventing the Courts
 23  and tribunals.
 24                 So, I'd respectfully request that you make
 25  it clear that while emotions, frustrations and feeling

188
  1  can readily be understood, that the history of the
  2  treatment of the Native people in Canada can be respected
  3  and understood, that it still must be made clear that --
  4  that self-help is not an action that can be condoned.
  5                 I -- I -- it's our respectful submission
  6  also that self-help most often leads to confrontation. 
  7  Confrontation often escalates.  Escalation leads to
  8  violence and that's one of the lessons that should be
  9  learned from the time spent at this Inquiry.
 10                 And I should also state that while I'm
 11  encouraging you to, in the strongest terms, condemn self-
 12  help, a strong statement is also needed calling for an
 13  overhaul to the land claims process to speed up the
 14  process and to reform the process.
 15                 Perhaps with that, I don't think you can -
 16  - you can look to one without the other, I think it's
 17  important to maintain a balance.  And that would be our
 18  submission, that perhaps if that is remedied, frustration
 19  will be reduced and self-help won't be seen as an
 20  appropriate remedy.
 21                 Finally, sir, those are our submissions. 
 22  I didn't get to even pass the green card.  I want to
 23  thank you for your conduct of the Inquiry.  I want to
 24  complement the Commission Counsel and their staff for the
 25  professionalism throughout.  I'm sure they'll go back to

189
  1  their practice, if there still is one, like the rest of
  2  us, as we go back and blow on the embers of our practice
  3  and hope that we can again light a fire.
  4                 I want to wish you well in what I know
  5  will be difficult deliberations in balancing the -- and
  6  fairly balancing the concerns of all the people who have
  7  -- have participated, on considering the reputations of
  8  individuals that have been assailed from time to time in
  9  this room, and taking into account all the victims of
 10  this terrible tragedy that occurred in September.
 11                 And I wish you well in the most
 12  complicated and difficult decision that you've probably
 13  faced in your career.  Thank you, sir.
 14                 COMMISSIONER SIDNEY LINDEN:   Thank you
 15  very much, Mr. Sulman.
 16                 Ms. Perschy, are you ready to start? 
 17  Okay.
 18  
 19                       (BRIEF PAUSE)
 20  
 21                 COMMISSIONER SIDNEY LINDEN:   How are you? 
 22  Good afternoon to you.
 23  
 24  FINAL SUBMISSION FOR MS. DEBBIE HUTTON:
 25                 MS. ANNA PERSCHY:   Good afternoon,

190
  1  Commissioner.  And it is me as well the last time that I
  2  will have an opportunity to say that to you.  It's quite
  3  the moment.
  4                 I wanted to start by reiterating something
  5  that I referred to in the introduction to our reply, but
  6  I think it's significant enough that it bears repeating.
  7                 And it is in the introduction.  It's
  8  paragraphs 3 and 4.  And I wrote it frankly in response
  9  to the forward that Mr. Sam George had prepared, the
 10  forward to Mr. Klippenstein's submissions on behalf of
 11  the estate.
 12                 And what I said was this:
 13                   "We appreciate that the subject matter
 14                   of this Inquiry is very emotional.  No
 15                   one could not be moved by Maynard Sam
 16                   George's words which speak to his pain
 17                   and loss and to that of his family. 
 18                   His words speak to the common humanity
 19                   of all of us and transcend all
 20                   differences in gender, age, race,
 21                   ethnic background and religion.  We all
 22                   have families and the death of a loved
 23                   one is always a great loss.  A needless
 24                   death is particularly tragic.  It is
 25                   precisely because human life has a

191
  1                   value beyond price that the need to
  2                   avoid death or injury is so important. 
  3                   That is precisely why it is so
  4                   important to thoroughly review all of
  5                   the evidence and carefully analyse it
  6                   so as to learn what we can from what
  7                   occurred.  That is precisely why reason
  8                   cannot give way to emotion."
  9                 We, Commissioner, have always regarded it
 10  as important that this Inquiry carefully investigate and
 11  consider the evidence and that you make findings.  A
 12  public inquiry serves to dispel myths and rumours with
 13  accurate information for the benefit of the public at
 14  large, and you've spoken a number of times about the
 15  public education aspect or role for a public inquiry, and
 16  also for the benefit of policymakers who want to consider
 17  what can be learned from the past and improved upon.
 18                 And we've participated in this process for
 19  the last two (2) years in order to assist you.  We --
 20  we've found documents, we've asked questions and we've
 21  listened.  And this hasn't been my effort alone.
 22                 I'd like to take this opportunity to thank
 23  and acknowledge the assistance of my colleague, Melissa
 24  Panjer, who's here today, and also the assistance of Adam
 25  Goodman, who is on his honeymoon -- actually, he's just

192
  1  back from his honeymoon, so he couldn't be with us.
  2                 Having heard the evidence that's been so
  3  painstakingly obtained during this process, we wanted to
  4  provide you, Commissioner, with a perspective for
  5  understanding that evidence.  And we understand that
  6  that's only one (1) perspective, but we believe that by
  7  putting together all of the different perspectives you
  8  may be able to have a better and fuller understanding.
  9                 And, as you know, we have provided you
 10  with very lengthy submissions and a reply and it's
 11  certainly not my intent to review all of those
 12  submissions.  But I would like to focus on five (5)
 13  topics which highlights some of the things that we tried
 14  to say and to use those five (5) topics in part as a
 15  response to some of the submissions of the parties.
 16                 And those five (5) topics are the
 17  following.  
 18                 1.  Means used to raise issues, and I'll
 19  explain that.
 20                 2.  The different roles, responsibilities
 21  and processes of government and police.
 22                 3.  Common concerns of government.
 23                 4.  Problems with taking things out of
 24  context.
 25                 5.  The issue of impressions.

193
  1                 And at the outset, I would like to
  2  emphasise that we have never regarded this process as an
  3  exercise in placing blame but rather, as I said, as an
  4  opportunity to look at a situation and learn from it.
  5                 So, with that in mind, I'd like to turn to
  6  the first topic.  Means used to raise issues. 
  7                 The evidence is clear, Commissioner, that
  8  over the years concerned and committed members of the
  9  Kettle and Stony Point First Nation and particularly
 10  those with a connection to the former Stoney Point
 11  reserve, used a variety of legitimate means to raise
 12  their concerns.
 13                 They wrote letters to politicians and
 14  others, they held protests, they handed out pamphlets,
 15  they had marches.  They even spoke to a Federal standing
 16  committee.
 17                 They knew what to do and how to do it and
 18  they did it and they engaged in those sorts of protests
 19  to obtain the return of the camp lands.
 20                 They didn't do it -- they didn't engage in
 21  such activities with respect to issues surrounding the
 22  Park.  And from the historical review of Ms. Holmes, I
 23  note that the Kettle and Stony Point First Nation voted
 24  against the surrender of the camp and they protested the
 25  expropriation when the Federal Government expropriated

194
  1  the camp or the lands that became the camp.
  2                 And they continued to raise that issue and
  3  as a result, they had protracted negotiations with the
  4  Federal Government and they achieved at least some
  5  settlement in the early 1980's and they received, I
  6  believe, about $2 million in compensation and a promise
  7  to return the land.
  8                 We all acknowledge that the Federal
  9  Government was incredibly slow in dealing with this issue
 10  and when the return of the land was slow in coming, when
 11  -- when the Federal Government's promise was slow in
 12  being fulfilled, the Kettle and Stony Point First Nation
 13  protested again.
 14                 And they persuaded the Federal Standing
 15  Committee in the early 1990's to recommend the return of
 16  the camp, and in 1994 finally the Federal Government
 17  indicated that it would close the base.
 18                 So, in my submission, it's not accurate to
 19  say that the protests didn't work, and I'm not suggesting
 20  for a second that the response was anything other than
 21  incredibly slow.
 22                 The Federal Government moved with glacial
 23  speed; there's no doubt about that.  But it isn't
 24  entirely accurate to say that these legitimate means that
 25  were used didn't achieve anything. 

195
  1                 And I've skipped a step, of course, by
  2  jumping to 1994 because, of course, in 1993, there was
  3  the occupation of the ranges.
  4                 However, it's not clear on the evidence
  5  that it was the occupation of the ranges that led the
  6  Federal Government to announce the closure of the base.
  7                 I would submit on the evidence that the
  8  recommendation of the Standing Committee, the settlement
  9  that was achieved in the 1980's and the recognition at
 10  that point that there was a promise to return the land,
 11  the other protests, they may also have had something to
 12  do with it.
 13                 In any event, in my submission, the 1993
 14  occupation of the ranges still bears the indicia of a
 15  protest.
 16                 What do I mean by that?  Well, let's look
 17  at it.  There were leaders or spokespeople who identified
 18  themselves in advance to the Federal Government and to
 19  the OPP.
 20                 They told them what they were going to do
 21  and why and they made clear that they were going to be
 22  peaceful.
 23                 And I'm going to suggest that the Stoney
 24  Point group who was involved in the 1993 occupation
 25  recognized that their actions in occupying the ranges

196
  1  would raise concerns with the Federal Government and the
  2  OPP and they sought to address those concerns.
  3                 While the Kettle and Stony Point First
  4  Nation chief and council didn't agree with the methods,
  5  the occupation of the ranges, even though they were
  6  peaceful, they did agree with the goal of bringing about
  7  the return of the camp lands.
  8                 Maynard T. George and Carl George took the
  9  same approach with respect to the threatened occupation
 10  of the Park.  And I refer to it that way because really,
 11  there is no occupation of the Park in -- in 1993.  
 12                 They move an information booth onto --
 13  onto Park lands for a brief period of time.  But that --
 14  that's really the extent of it.  
 15                 But in any event, in 1993, Maynard T. and
 16  Carl George contact the Provincial Government and the
 17  OPP, they identify themselves, they indicate what they're
 18  going to do, what they want, but they intend to be
 19  peaceful, et cetera.
 20                 Many of these aspects of what was done in
 21  1993 are not aspect -- are not present, excuse me, in
 22  1995 with respect to the takeover of the barracks.  
 23                 There was some discussion with the
 24  military at the time of the takeover but the evidence of
 25  Captain Smith was that agreements were broken pretty much

197
  1  as soon as they were made on the day of the takeover.
  2                 And the clear evidence is that there was
  3  some violence.  There was the sense that no one was in
  4  control and the military withdrew to avoid a
  5  confrontation.
  6                 And I appreciate that some witnesses have
  7  said that these actions were just those of kids.  That --
  8  I should point out two (2) things.  One, these were young
  9  men in their teens and twenties, so they weren't children
 10  and two, there isn't any evidence that the adult
 11  occupiers in any way criticized the actions taken by some
 12  of their young people, in fact the evidence is the
 13  contrary.  
 14                 And none of the things that allowed the
 15  1993 occupation of the ranges to be peaceful are present
 16  with the takeover of the Park just a few weeks after the
 17  takeover of the barracks.
 18                 There wasn't a spokesperson in 1995.  Bert
 19  Manning certainly couldn't speak on behalf of the
 20  occupiers and frankly it appears from the evidence of
 21  Stan Korosec that his views were -- were getting
 22  overruled -- I mean, Bert Manning's views.
 23                 And even before you, no one would
 24  acknowledge that they were in a leadership role  There is
 25  no clear articulation of what they're doing, the

198
  1  occupiers with respect to the Park, and the basis for it
  2  other than simply asserting that it's their land and as
  3  Carson put it in his conversation on September 5th with
  4  Fox, for us to stay the hell off.
  5                 And unfortunately there is violence right
  6  from the outset on September 4th.  I don't need to
  7  overstate it, there was a window that was smashed, some
  8  flares that were thrown.  But the fact remains the OPP
  9  and the MNR were concerned enough that they withdrew.
 10                 So what happened at the Park in my
 11  submission, is not an occupation or a protest.  It is a
 12  taking of land.  Mr. -- someone referred to it as a self-
 13  help remedy.  The occupiers don't just go on the land,
 14  they insist on -- on -- using some force and they insist
 15  that everybody else leave and stay away.
 16                 And counsel for the occupiers themselves
 17  in their submissions refer to this as a reclaiming of
 18  land.  And if I understood Mr. Klippenstein correctly
 19  yesterday, all the 
 20  Aboriginal parties agree that the Park should be formally
 21  returned to them.
 22                 No one is suggesting that if one could
 23  just identify the location of some burial grounds and
 24  fenced them off, that they would be prepared to have the
 25  Park returned to the Provincial Government.  This is

199
  1  about land.
  2                 And what justifies this taking of the
  3  land?  What efforts did the occupiers exhaust in trying
  4  to raise this issue for other means?  There isn't any
  5  evidence of any such exhausted efforts.
  6                 In fact the evidence is that after
  7  receiving the letter from the NDP Government in 1993
  8  indicating that the Park belongs to the Province, the
  9  Stoney Point Group took no steps with respect to the
 10  Park.
 11                 My submission is that one can certainly
 12  understand the frustration with respect to the camp.  And
 13  I'm not the only counsel to have made that point to you. 
 14  It doesn't justify the actions but at least one can
 15  understand it.  It's much more difficult to understand
 16  what happened with respect to the Park.
 17                 Other than the threatened occupation in
 18  1993 with respect to the Park, there is nothing done to
 19  file a claim or raise an issue with respect to the Park. 
 20  Nothing, other than the taking it over that occurs in
 21  September of 1995.
 22                 My Friend, Mr. Scullion, raised the issue
 23  of Serpent Mounds and was asking why that was resolved
 24  peacefully.  And my response in the reply is that, that
 25  was somewhat similar to the 1993 occupation of the

200
  1  ranges.
  2                 People involved identified themselves in
  3  advance, they said what they wanted, they articulated
  4  their reasons, they indicated what they were going to do
  5  and that they were going to be peaceful.  They also had
  6  the support of the official band.
  7                 And Mr. Ross argued that First Nations
  8  people shouldn't have to have the support of the official
  9  band and that's true, however, the fact that the
 10  democratically elected chief and council doesn't support
 11  occupiers raises the question of what is their
 12  legitimacy.
 13                 And the evidence of Carl George was that
 14  three-quarters of the Kettle and Stony Point First Nation
 15  have a connection to the former Stoney Point Reserve.
 16                 And Carl George acknowledged that he
 17  didn't have a mandate from the majority of those with a
 18  connection to the former reserve for the actions that he
 19  and others took in 1993.
 20                 And the members of the Kettle and Stony
 21  Point First Nation did not agree that they wanted a
 22  referendum on splitting the official band.  There is
 23  evidence in fact that many members of the band were
 24  opposed to that.  So it's not clear who this group
 25  actually represents other than themselves.  

201
  1                 And in 1993 and in 1995 the Chief of the
  2  Kettle and Stony Point First Nation spoke with the OPP,
  3  spoke with MNR, and both in 1993 and in 1995, unlike what
  4  happens with the Camp he doesn't just take issue with the
  5  methods being used with respect to the issue surrounding
  6  the Park, he takes issue with the very notion that the
  7  Kettle and Stony Point First Nation have a claim.  
  8                 And I refer you in that regard to the e-
  9  mails of Mr. Humberstone of MNR in 1993 which are
 10  referred to in our submissions, the e-mail from Dan
 11  Elliott in 1995, and of course the taped phone call with
 12  Mr. Carson between Chief Tom Bressette and Mr. Carson on
 13  the morning of September 5th.
 14                 So in summary the members of the Kettle
 15  and Stony Point First Nation had legitimate means of
 16  raising issues at their disposal.  They knew how to raise
 17  those issues in legitimate ways and knew what concerns
 18  the Government or the OPP would have with an occupation. 
 19                 In 1993 we addressed those concerns.  In
 20  1995 unfortunately they did not.  Further I do submit
 21  that the nature of the action taken in 1995 is quite
 22  different from the much more limited action taken in
 23  1993. 
 24                 Let me turn to a different subject, the
 25  different roles, responsibilities, and processes of the

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  1  Government and the OPP.
  2                 The OPP is concerned with policing on the
  3  ground.  Their obligations arise by statute and from case
  4  law there's a centralized command structure.  Heard
  5  evidence from -- from then Inspector Carson on the
  6  subject and others.  The Incident Commander may listen to
  7  what other officers have to say and get input, but
  8  ultimately he makes the decisions; it's his assessment. 
  9  He makes the decision.  
 10                 Even his superiors respect that he's the
 11  one on the ground and he's in charge and I'll refer you
 12  to the evidence not just of Inspector Carson on that
 13  point but the evidence also of his superiors Chief
 14  Superintendent Coles and also Commissioner -- then
 15  Commissioner O'Grady.
 16                 Government is a different kettle of fish. 
 17  Occupations and blockades affect a number of ministries
 18  in different ways.  That's precisely why under previous
 19  governments you had an Interministerial Committee. 
 20                 The mere name tells you something about
 21  the fact that it involves a number of different
 22  ministries.  It allows representatives of different
 23  ministries to share their information, share their
 24  concerns and views.
 25                 And these may well be different reflecting

203
  1  the fact that it involves different ministries and as
  2  I've mentioned in my submissions both in the original
  3  submissions and in reply it's clear that in August 1995,
  4  when My Client wasn't present, there were different views
  5  being expressed among the Civil Servants of MNR for
  6  example and Fox on behalf of the -- of the Solicitor
  7  General regarding a possibility of an occupation of the
  8  Park.
  9                 It stands to be repeated that under a
 10  democratic system of government elected ministers are the
 11  ultimate decision makers.  They are responsible
 12  individually and as a collective.  The Premier of course
 13  is the one who's ultimately responsible.  He's the one
 14  who appoints ministers to Cabinet.
 15                 And I recall Deputy Minister Vrancart
 16  testified about how the general public, the media, often
 17  looked directly to the Premier on issues rather than the
 18  Minister responsible on a particular issue.
 19                 And I think, as Mr. Sulman mentioned,
 20  anyone who's followed Caledonia in the last few weeks
 21  would have seen that there's no doubt that the public and
 22  the media have looked to see what was our current
 23  Premier's position.  And that's in a situation where we
 24  weren't up until recently the landowner.
 25                 Under our system of government ministers

204
  1  have advisors in the form of a political staff and civil
  2  servants.  We expect the political side of Government to
  3  have opinions and views.  It's the sorts of things the
  4  politicians talk about when they campaign and the basis
  5  upon which they are elected; their views, their policy
  6  positions, their plans.  Which isn't to say they have a
  7  position on everything because, of course, you don't know
  8  what's going to come up in the course of a government's
  9  mandate, but the fact remains we expect politicians to
 10  have views and opinions.
 11                 Civil servants on the other hand are said
 12  to be independent, and that's in the sense of being
 13  politically neutral.  They're supposed to serve whoever
 14  gets elected regardless of their own personal political
 15  views and opinions.  And when providing advice I would
 16  submit that civil servants provide the political arm
 17  with, on the one hand, accurate, factual information and
 18  expertise; legal expertise, financial expertise, medical
 19  expertise, et cetera.  That is their role.
 20                 And as I indicated in the reply it's very
 21  important not to confuse the notion of police
 22  independence on the one hand with -- from political
 23  interference, with the notion of a so-called independence
 24  of civil servants.  They do refer to different things.
 25                 The notion of police independence stems

205
  1  from the view that the police are not the Government's
  2  private force.  Police should enforce the law with the
  3  guidance that they can get from statute and from case
  4  law.  And the notion of -- sorry -- the notion of police
  5  independence is that they be free from political
  6  direction.  And that's articulated in -- in the case of
  7  Blackburn, and we referred to that in our -- in our
  8  submissions.
  9                 Deliberately telling the police what to do
 10  with respect to police operations; that's what we're
 11  talking about.  This notion is not about possible
 12  unintentional influence from overhearing something, or
 13  reading, or watching media reports of Government
 14  communications to the public.  A police force is not a
 15  sequestered jury.  They are more like judges.  They have
 16  the right to read the paper and have political views.
 17                 However, when they have a role to do --
 18  excuse me -- they are supposed to not let their personal
 19  views affect the performance of their obligations.  In
 20  the case of police that has to do with the enforcement of
 21  the law.
 22                 So, in summary, police independence from
 23  political interference has a very specific meaning.  It's
 24  about the political arm of Government engaging in
 25  specific intentional acts to interfere in police

206
  1  operations.  And of course the concept of police
  2  independence isn't entirely pure because, with respect to
  3  the OPP of course, the Solicitor General is ultimately
  4  responsible.
  5                 Nevertheless, the understanding has
  6  developed that the Solicitor General has general
  7  oversight, and while the Ministry is kept informed, the
  8  Minister does not give direction, orders or instructions
  9  on particular police operations.  And witness after
 10  witness testified to their understanding of that,
 11  including, I might add, Ms. Hutton.
 12                 Civil servants on the other hand can and
 13  do take direction from Ministers all the time.  Now, put
 14  aside the issue of prosecutions within the Ministry of
 15  the Attorney General because that's rather specific and -
 16  - and somewhat different.  But Deputy Ministers are
 17  themselves civil servants and they're in frequent contact
 18  with their Ministers and other Ministers and political
 19  staff.
 20                 Now, the civil service is a large
 21  bureaucracy with a very hierarchical reporting structure,
 22  so most of the contact between the political arm of
 23  Government and the civil service goes trough the Deputy
 24  Minister.  However, it doesn't have to.
 25                 In the Interministerial Committee that

207
  1  we've been looking at, and it's not the only
  2  Interministerial Committee, but it is the one that we --
  3  we've discussed in this -- in this Public Inquiry and so
  4  we always refer to it as the Interministerial Committee
  5  but it -- it's certainly not the only one in Government.
  6                 This Interministerial Committee is an
  7  example of just such a structure which is designed to
  8  allow the direct contact between political staff and
  9  civil servants. 
 10                 Why?  Well the name tells you.  The
 11  Interministerial Committee on Aboriginal Emergencies. 
 12  It's designed as a bit of a shortcut so that people can
 13  have access to information more directly and more quickly
 14  and come to decisions through a process of making
 15  recommendations more quickly.
 16                 And on that last point, Mr. Henderson
 17  yesterday referred to the changes to the Interministerial
 18  Committee following the death of Dudley George.  And
 19  without going into it in any great detail because I do
 20  refer to it in my reply, it's clear from the evidence
 21  that on September 7th and in the days that followed, what
 22  had been a serious situation, became of course even more
 23  serious.
 24                 And the Deputy Ministers became directly
 25  involved and had regular meetings with political staff

208
  1  while the other civil servants took on more of the
  2  support role.
  3                 Several months later, the civil service
  4  reviewed the guidelines for the Aboriginal -- for the
  5  Interministerial Committee on Aboriginal Emergencies. 
  6  And the civil service reaffirmed that political staff
  7  including the Premier's office would be part of the
  8  Interministerial Committee along with civil servants. 
  9  And as I said, I deal with that in a bit more detail and
 10  I urge you to look at my reply in that.
 11                 Mr. Falconer this morning attempted to
 12  characterize Ms. Hutton, an Executive Assistant, as the
 13  second in command to Premier Harris and to somehow
 14  compare her to Officer Wright and his relationship with
 15  Inspector Carson.  And quite frankly that blatantly mis-
 16  characterizes the role of Government, how Government
 17  works and who makes Government decisions and how they
 18  were made on September 6th.
 19                 The police and Government are different. 
 20  They have different roles, they have different
 21  responsibilities, they have different processes.  That's
 22  been clear from the evidence heard at this Inquiry.
 23                 Mr. Falconer in my submission, knows that
 24  or should know that at this point.  And in my submission,
 25  these are just lawyers' attempts to draw non-existent

209
  1  parallels and they're worse than useless.  They're --
  2  frankly, they're misleading.  They're not the same thing.
  3                 Police and Government are different. 
  4  Which brings me to my third topic, common concerns of
  5  Government.  There has been a number of submissions which
  6  seek to portray what occurred as the result of partisan
  7  politics.
  8                 If a different Government had been in
  9  power so the theory goes, everything would have been
 10  different and perhaps Mr. George would not have died. 
 11  And this fails to recognize that when we're considering
 12  the Government's position in all of this, which has
 13  nothing to do with events on the ground, but I'll come to
 14  that later, for the Government's position is in fact
 15  reflective of common concerns from Government to
 16  Government.  The evidence is that the mandate and the
 17  guidelines of the Interministerial Committee were in
 18  place from one Government to another.
 19                 The goal was the same.  Prevent
 20  occupations from occurring and if you can't do that,
 21  bring them to an end as quickly and as safely as
 22  possible.
 23                 The key guidelines were also the same. 
 24  Don't get into substantive negotiations because otherwise
 25  it may encourage illegal action and allow people to que

210
  1  jump to get their issues addressed ahead of others who
  2  use legitimate means.
  3                 And Mr. Sulman referred to some of these
  4  issues and stressed how these sorts of actions can be
  5  dangerous and should not be encouraged.
  6                 The common concerns reveal themselves in
  7  similar comments.  And what I'd like to do is to read you
  8  a comment which is at paragraph 170 of my submissions. 
  9  And I'm just going to turn it up.  And I won't tell you
 10  yet who said it or when, but I'll mention it at the end.
 11                   "MNR and OPP have contingency plans for
 12                   evacuation of the public from the Park. 
 13                   There is some concern that if the
 14                   occupation continues, shooting could
 15                   occur in the Camp and if the matter
 16                   escalates other Aboriginal
 17                   quote/unquote 'Warriors' might join the
 18                   occupiers's cause and that the Park and
 19                   also the nearby Pinery Provincial Park
 20                   could be occupied."
 21                 That's a comment from a briefing note from
 22  a Civil Servant in 1993.  
 23                 And we don't have the handwritten notes of
 24  the Interministerial Committee Meetings in 1993 and no
 25  one has tried to parse every word that was uttered at

211
  1  those meetings in the way they've parsed at least My
  2  Client's comments with respect to the meetings in
  3  September of 1995, however, just when one reviews the
  4  minutes in 1993 from one (1) of the meetings and I'll
  5  turn you to paragraph 125, at one (1) of the meetings
  6  here are the sorts of concerns that were raised.
  7                 One (1) of the Civil Servants noted that
  8  the group was peaceful and seemingly cooperative.  The
  9  concerns were raised and they're summarised in the
 10  minutes.  
 11                   "There is a possibility that a
 12                   structure may be erected contrary to
 13                   the Provincial Parks Act.  There have
 14                   also been reports that warriors from
 15                   other areas may join the First Nation
 16                   presence.
 17                   A Bailiff's Order served by the First
 18                   Nation on Thursday asserts First Nation
 19                   ownership of the Park lands.  There is
 20                   concern that if Ontario does nothing
 21                   the First Nation's position will be
 22                   reinforced.  The order is based upon an
 23                   1850 statute which has been repealed."
 24                 Putting aside the terminology, the use of
 25  the word, "Warriors" which I don't think is particularly

212
  1  helpful, the -- the point is this.  People were concerned
  2  that matters may escalate.  People were concerned about
  3  public safety.  These are common concerns.  They're
  4  concerns raised by Civil Servants.  They were raised in
  5  1993.
  6                 And in 1993 what's happened?  There's the
  7  prospect of an information booth being moved there and
  8  there's service of the letter which articulated four (4)
  9  fairly narrow demands.  There wasn't any violence at that
 10  point.  There wasn't any attempt to prevent the
 11  Government or the public from using the Park. 
 12  Nevertheless, just on -- based on what had occurred,
 13  there were concerns being raised by the Civil Servants in
 14  1993. 
 15                 And in 1993 the clear advice from the
 16  Civil Service was that the Government has valid title. 
 17  The NDP Government at the time notified the occupiers. 
 18  They don't offer to negotiate the ownership of the land;
 19  why would they?  It would illogical given the nature of
 20  the legal advice that the Province has clear title and
 21  owns the Park and the occupiers are mistaken in thinking
 22  that they own it.
 23                 At least in 1993 the occupiers articulated
 24  their reasoning.  When we examined the documents that
 25  they provided at that time they refer to the 1942

213
  1  appropriation -- the expropriation by the Government with
  2  respect to the Camp.  And the Government informs them by
  3  letter that the expropriation is with respect to the Camp
  4  lands and the history of the Park is quite different.
  5                 However, in 1995, following the death of
  6  Dudley George there's a fact sheet and unfortunately I
  7  don't have the exhibit number but there's a fact sheet
  8  distributed by the Aazhoodena who were then occupying the
  9  Camp and they referred to the Park lands as having been
 10  moved and having been on the expropriated Camp lands.
 11                 And all the carefully articulated reasons
 12  that have raised before you by Counsel with respect to
 13  the surrender are not referred to in 1993 and they're not
 14  referred to in the fact sheet produced by the Army Camp
 15  residents in 1995.
 16                 The Civil Servants' advice in 1993 and in
 17  1995 is that the Province has valid title.  In 1993 and
 18  in 1995 MNR created contingency plans.  They focussed on
 19  clearing the Park of any visitors, closing it, and
 20  preventing anyone from trespassing, and that's their
 21  language.
 22                 The MNR also created communication
 23  materials in advance of the occupation which reflect that
 24  policy position.  The MNR civil service takes the
 25  position in 1995 that an occupation would be regarded as

214
  1  a trespass and that it would be illegal.  
  2                 And that's in the summer of 1995.  It's a
  3  position that's rooted in the legal advice and the
  4  position taken in 1993 and it's a position that's taken
  5  without any involvement from the political arm of
  6  government at that stage let alone any involvement of the
  7  Premier's Office or of Ms. Hutton.
  8                 And the MNR contingency plans in the
  9  summer of 1995, which were considering the possibility of
 10  an occupation of the Park, called for the involvement of
 11  the OPP.  And the OPP plans in 1993 and in 1995 involved
 12  containing the situation and getting MNR to seek and
 13  obtain an injunction.
 14                 And when one looks at the 1993 plan that
 15  the OPP had -- and they had various scenarios, and it was
 16  primarily focussed on dealing with -- with the situation
 17  at the Camp, but they also considered the scenario
 18  whereby the Park would be occupied -- it's clear that the
 19  OPP planned to first use an injunction as a tool to
 20  persuade the occupiers to leave.  
 21                 But it's also clear that if that didn't
 22  work the OPP were prepared to make arrests and remove
 23  people based on the injunction order.  It's a plan, it's
 24  not carved in stone.  How and when the OPP was going to
 25  do that, all of that was going to be left to the Incident

215
  1  Commander, of course.
  2                 Now, the Project Maple in 1995 is not as
  3  explicit as the 1993 plans, but Carson clearly had them
  4  in mind.  That's what he says to Lacroix on the morning
  5  of September 5th.  If I could turn you to paragraph 492
  6  of my submissions.
  7                 He was having a conversation with Lacroix
  8  on the morning of September 5th and Lacroix, you've heard
  9  in the evidence, had missed out on the planning that took
 10  place on September 1st.  And Carson says in his taped
 11  phone call to Lacroix:
 12                   "But you have intimate knowledge of
 13                   all, you know our '93 plans."
 14                 And Lacroix says:
 15                   "Okay."
 16                 And Carson says:
 17                   "And they are very appropriate.  And
 18                   you know as this thing rolls out you're
 19                   probably going to be relieving somebody
 20                   somewhere."
 21                 Clearly, Carson thought that the '93 plans
 22  were relevant.  And when you look at the 1993 plans and
 23  you look at what actually is done in 1995 in terms of
 24  containing the situation, both in terms of the numbers of
 25  officers and -- and the use of the ERT teams, it's clear

216
  1  that the 1993 plans and what's being implemented in 1995
  2  is virtually the same thing.  It's the same approach.
  3                 And the plans, when one looks at the
  4  September 1st planning meeting, the plan was to have MNR
  5  get an injunction.  And as it's recorded in those
  6  planning meeting notes, the injunction, the best case
  7  scenario was that it was going to be within twenty-four
  8  (24) hours.
  9                 And again in 1995 this consideration given
 10  to the -- the possibility of arrests and arrest packages
 11  were prepared, et cetera, this is all at the planning
 12  stage.  But clearly that is the thinking.  And I believe
 13  Korosec -- Stan Korosec testified that the 1993 plans
 14  were similar to what was being discussed in 1995.
 15                 And in 1995 it's the OPP that raises the
 16  issue of an injunction with MNR on the ground, not the
 17  other way around.  And it's the OPP that asks MNR to
 18  obtain the injunction, and that's first done at the
 19  beginning of August.  And the contingency plans that are
 20  prepared are around that expectation and that plan.
 21                 And, Commissioner, there's a wealth of
 22  evidence on this.  There's the evidence -- there's the
 23  testimony of Peter Sturdy and Les Kobayashi and Inspector
 24  -- then Inspector Carson himself, as well as a whole host
 25  of contemporary documents.  And it's covered in our

217
  1  submissions, in Part IV.
  2                 I raise it, no one else has, in my
  3  submission it is quite important in understanding the
  4  approach taken on the ground both by the MNR and by the
  5  OPP.  Neither of them was reacting to the political arm
  6  of Government in preparing their plans.  The ministers,
  7  including the Premier, and their political staff had no
  8  involvement in all of that.
  9                 And MRN and the OPP started implementing
 10  their plans as soon as the occupation began on September
 11  the 4th.  That's why MNR and the OPP go back during the
 12  night on September 4th, despite everything that's
 13  happened and the decision to withdraw, they go back that
 14  night to the Park and try to serve the occupiers with a
 15  notice of trespass.  
 16                 And their evidence, as supported by the
 17  scribe notes, is that they wanted to advise the occupiers
 18  that they were trespassing, they assumed that
 19  unfortunately they still wouldn't leave and they were
 20  going to proceed to then have MNR seek an injunction.
 21                 It's quite true that under our system of
 22  Government, I said earlier, Ministers are the ones who
 23  make the decisions.  The Ministers could have come in and
 24  taken a completely different approach from that begun by
 25  the civil servants at MNR and by the OPP.  They didn't,

218
  1  but it surely is not accurate to suggest that the
  2  political arm was ignoring the advice of their civil
  3  servants which brings me to the fourth topic.
  4                 Taking comments out of context is the
  5  specific heading in our reply.  Frankly, it's a
  6  reoccurring theme in our reply.  One of the main
  7  deficiencies of the -- some of the submissions of -- of
  8  other parties particularly as they relate to our client,
  9  is that they take things out of context and ignore much
 10  of the evidence.
 11                 I think I likened it to ignoring the
 12  forest for the trees.  And I've given a number of very
 13  specific examples in the reply to illustrate in a very
 14  concrete way how this can twist one's understanding of
 15  what occurred.
 16                 And I don't intend to do that today.  It
 17  involves very carefully reviewing the evidence in a
 18  detailed manner and frankly that would be very difficult
 19  to follow in oral submissions.  We've done it in writing. 
 20  It's there for anyone who wants to review it.  However, I
 21  will refer in general to two (2) points under this
 22  heading.
 23                 1) is the complete focus on Deb Hutton at
 24  the Interministerial Committee meetings with an
 25  occasional reference to Ron Fox.  The MNR representatives

219
  1  at the meetings are completely ignored.
  2                 It sort of reminds me of a tactic which I
  3  believe was used in Stalinist Russia.  One of the ways
  4  that people would re-write history would be to remove
  5  people from photographs so they didn't exist.  You might
  6  have a picture which five (5) people in the photograph
  7  and then a few of them, say three (3) of them were later
  8  regarding as dissidents they'd  sort of be -- be -- the
  9  fact -- the sort of, the photographs would be doctored
 10  and the people would just disappear.  And then all of a
 11  sudden you have a photograph of maybe of a couple of
 12  people left.  Then it became a completely different
 13  photograph.  It changes the picture, it distorts the
 14  reality.
 15                 And in my submission, that's the effect of
 16  ignoring the presence of comments of, not just the MNR
 17  representatives, but of others at these meetings, but in
 18  particular the MNR representatives.  It creates a real
 19  distortion that doesn't reflect what actually occurred. 
 20  And it doesn't frankly reflect the evidence because
 21  fortunately we do have contemporaneous evidence.
 22                 All you have to do is look at Ron Fox's
 23  call to Carson on September 5th.  He goes on for pages
 24  and pages and pages of transcript about what MNR said at
 25  the IMC meetings and which he didn't agree with.

220
  1                 There were different views at these
  2  meetings. And in my submission there were different views
  3  as I suggested earlier at the August meeting.  But there
  4  was no divide between political servants on the one --
  5  sorry, political staff on the one hand and civil servants
  6  on the other.
  7                 There were differences and that included
  8  differences amongst civil servants.  And in my
  9  submission, it's something of a self fulfilling prophecy
 10  to ignore the evidence about whatever else said, focus
 11  only on Hutton and then argue that Hutton was dominant at
 12  the meeting.
 13                 When one reviews the evidence, all of the
 14  evidence, it's apparent that she made a handful of
 15  comments, first at the first meeting then at the second
 16  meeting.  Lots of other people spoke.
 17                 And I indicated that I'd refer to two (2)
 18  problems under this heading of taking things out of
 19  context.  The other major problem with a lot of the
 20  submissions, is that they ignore the progression of
 21  events.
 22                 The evidence is clear.  Ron Fox gave the
 23  evidence that the situation worsened on September the
 24  6th.  That's ignored.  Some parties pick up on what is
 25  referred to towards the end of the second meeting and

221
  1  treat it as if it was said at the outset on September the
  2  5th.
  3                 And then they argue, Oh well, the former
  4  Premier knew what he wanted to do from the outset and
  5  that this is communicated by Hutton.  It's not reflected
  6  by the evidence.  
  7                 The evidence is she didn't say a word. 
  8  She sat and listened for about half of the meeting on
  9  September 5th.  She already knew what she wanted to do,
 10  what's she doing?
 11                 By ignoring the progression of events, it
 12  gives the false appearance that the political arm had a
 13  closed mind when the exact opposite is true.  Ms. Hutton
 14  didn't walk into the September 5th meeting with an
 15  entirely blank or empty mind waiting to be filled by
 16  others. Intelligent people don't have a blank or empty
 17  mind but she did have an open mind and that was her
 18  evidence.
 19                 And time and again when you look at the
 20  notes which capture the gist of the conversation,
 21  demonstrates that Ms. Hutton was indeed actively
 22  listening at the meetings and picking up on what others
 23  were saying.
 24                 She picked up on the advice of the lawyers
 25  where they reaffirmed that the Province has valid

222
  1  ownership as they had done in August.  She picked up on
  2  Fox's comment that there was access from the Camp and
  3  that people and weapons could come across from the Camp
  4  to the Park.  She picked up on Fox's comment that over
  5  time it might become more difficult to remove them.  He
  6  was referring specifically to people becoming more
  7  comfortable and becoming entrenched.  Nevertheless she
  8  picked up on that concern or comment.
  9                 She picked up on Fox's suggestion that
 10  they use OPP as a fact finder.  He does that on September
 11  the 5th.  She then refers to it September 6 when the
 12  meeting is going to come up and raises her concerns about
 13  what can be communicated on behalf of Government at these
 14  discussions and the concerns about getting into
 15  substantive negotiations.
 16                 She was listening to what was being said. 
 17  And ignoring the progression of events ignores the fact
 18  that the Civil Servants also took into account the
 19  information that was coming from the ground with respect
 20  to what was going on. 
 21                 At the meeting on September 6 Peter Sturdy
 22  confirms a report of the gunfire and then raises the
 23  concern about the safety of MNR staff and they're being
 24  asked to wear bullet-proof vests. 
 25                 And if you look at Julie Jai's notes of

223
  1  that meeting, right beneath the comment attributed to
  2  Peter Sturdy, she notes:
  3                   "Agreed.  We will seek an injunction as
  4                   soon as possible.  ASAP."
  5                 And the evidence of the civil servants who
  6  testified before you was that there was a consensus and
  7  that each of them who testified indicated that they
  8  agreed with that recommendation.  
  9                 So this allegation that the political arm
 10  somehow manufactured a quote/unquote "crisis," talk about
 11  a strawman.  It's the submissions -- it's in the
 12  submissions of other Counsel that they have described
 13  this incident as a crisis.  Hutton doesn't refer to it as
 14  a crisis.  It was a serious situation, yes, absolutely,
 15  and by September the 6th it appeared to have been
 16  worsened, or appeared to have worsened.
 17                 So those are just two (2) general problems
 18  with respect to taking things out of context.  And I
 19  referred you in our reply to several examples, very
 20  specific examples.  However, I do have to emphasize that
 21  this problem of ignoring evidence, taking things out of
 22  context, it's -- it's cumulative.  It's not a discreet
 23  problem.  It's pervasive and it completely undermines the
 24  arguments of some of the other parties.
 25                 Which brings me to impressions.  And the

224
  1  problem with impressions is of course that they sound a
  2  whole lot more meaningful than they are.  I believe it
  3  was Mr. Strosberg who was making reference to the sound
  4  and fury, signifying nothing.  Frankly, you could make
  5  that point about impressions.
  6                 Impressions are simply an individual's own
  7  summary, not necessarily of what was said, but what they
  8  understood.  Now, during this Inquiry My Colleagues and I
  9  have asked many questions of those who were at the
 10  Interministerial Committee meetings to find out what
 11  specifically they recalled in order to find out the basis
 12  for some of the impressions.  
 13                 And as you know in many instances I gave
 14  witnesses an opportunity to review the notes of people
 15  who had taken detailed notes to see if that would refresh
 16  their recollection.  And frankly, witnesses often didn't
 17  recall things or got things wrong and had to have their
 18  memory refreshed from notes.  
 19                 And I'd like to remind you, sir, that Ron
 20  Fox did not recall that it was Deb Hutton who asked, Can
 21  we confirm that, when Peter Sturdy first gave the report
 22  about the automatic gunfire.
 23                 And that was information that Fox
 24  indicated was very important for the Interministerial
 25  Committee to have as they considered the issue of the

225
  1  Government's position and what they should do with
  2  respect to the injunction.
  3                 Fox's impression, interestingly enough,
  4  was that this information -- that this was information
  5  that MNR had obtained and that in fact was the basis for
  6  his scepticism.  As I recall his evidence, his point,
  7  Well it's only the police who have the training and the
  8  expertise who would be able to recognize whether or not
  9  it's in fact automatic gunfire or several people firing
 10  semiautomatics. 
 11                 I'm not sure what the distinction -- I'm
 12  sure the distinction has some value, strategic value for
 13  police officers.  At the Government level, in terms of
 14  the issues they had to consider, I'm not if the
 15  distinction was -- was as germane.  But be that as it
 16  may, the evidence at the Inquiry is that MNR obtained
 17  this information from the OPP and it was one of their
 18  officers who heard it.  So Fox's impression, his
 19  assumption was wrong.
 20                 Now, Fox testified that it would be
 21  prudent to ask for confirmation of such information, but
 22  he didn't recall that it was Hutton who had asked for the
 23  confirmation.  And Fox testified initially that it was
 24  Hutton who asked about criminal charges on September the
 25  6th.  And he was misled by Scott Patrick's notes which

226
  1  failed to record that there was a change in speaker and
  2  in fact that the suggestion came from Mr. McCabe.
  3                 And when I took Mr. Fox, Ron Fox, to
  4  Eileen Hipfner's notes, he realized that it was in fact
  5  Tim McCabe who raised the issue.  So my question is, How
  6  reliable are Fox's impressions when his recollection of
  7  who said what isn't accurate?
  8                 And in that regard I'd like to reply or
  9  comment on the reply of the OPP.  I'm not suggesting that
 10  Fox was not truthful.  I am questioning and challenging
 11  the reliability of some of his impressions.  He wasn't
 12  taking detailed notes at the time.  He's participating in
 13  a discussion with something like twenty-five (25)
 14  different people in a large boardroom.  His recollection
 15  now is what it is but even at the time, even a few
 16  minutes after the meeting, his overall impression may not
 17  have been accurate.
 18                 And when I raised the issue of Ron Fox's
 19  comment about Hutton at the outset of this conversation
 20  with Carson on September the 5th, I wasn't seeking some
 21  finding that Ron Fox is sexist or ageist or anything like
 22  that.  It's just a comment.
 23                 But it is significant for two (2) reasons. 
 24  First, it's very clear that Fox is not being
 25  complementary.  He was being derogatory, he was being

227
  1  dismissive about a person he never met before that day. 
  2  He didn't know anything about her responsibilities, he
  3  didn't know anything about her experience.  He was being
  4  dismissive about her, frankly, in the same way he was
  5  rather dismissive with respect to some of the MNR
  6  representatives on the ground.
  7                 And in my submission Ron Fox went into the
  8  Interministerial Committee meetings thinking like a
  9  police officer, but that wasn't his role.  He was there
 10  as an advisor to the Ministry of Solicitor General.  He'd
 11  been seconded there.  He was a civil servant.
 12                 As Doctor -- as Deputy Minister Todres put
 13  it, I thought rather aptly, he was Mr. Fox to her.  He
 14  may have had experience as a police officer but policing
 15  was not the issue for the Interministerial Committee's
 16  recommendation.  Their issue was the position and
 17  communications of the Government.  And Ron Fox had almost
 18  no experience in Government and none in media and
 19  communications, let alone with respect to Government
 20  communications to the media.
 21                 Second -- the second reason that Fox's
 22  comment is significant is that his initial comment about
 23  her speaks to the nature of -- of the conversation that
 24  he's having.  This is an informal chat between two (2)
 25  former colleagues.  It wasn't a message being relayed. 

228
  1  It wasn't a message being relayed by a so-called liaison
  2  officer.
  3                 Ron Fox was not a liaison person.  There
  4  was another person at the Ministry of the Solicitor
  5  General who played that role.  Fox was an advisor, not a
  6  liaison.  Yes, he provided reports from the ground. 
  7  That's what officials at the Ministry of the Solicitor
  8  General do.  You don't have to be a police officer to do
  9  that.
 10                 And the evidence from a number of
 11  witnesses is clear that at the Interministerial Committee
 12  meetings, representatives of MNR and from the Ministry of
 13  the Solicitor General provided information.  And several
 14  of the witnesses testified about how their information
 15  was similar.  Well, we all know why now because MNR was
 16  actually at the OPP Command Post and they shared a lot of
 17  information with the OPP and the OPP shared information
 18  with them.
 19                 In fact the evidence was this is nothing
 20  unusual and that MNR on the ground shared information all
 21  the time.  And you'll recall when I was cross-examining
 22  Peter Sturdy, he testified that in many instances,
 23  briefings would go up through the civil service and it
 24  wouldn't be clear from the briefings and the reports who
 25  was the original source of the information.

229
  1                 So in my submission, what Fox said at the
  2  Interministerial Committee meeting would only have
  3  identified him as a representative of the Ministry.  And
  4  his evidence is that how you -- that's how he would have
  5  introduced himself at that meeting.
  6                 I'm just going to make one (1) more point
  7  and then I've been asked to suggest a break and I'm more
  8  than happy to do that, Commissioner.
  9                 On Ron Fox's own evidence, he wasn't asked
 10  to have any conversation with -- with Carson.  On his own
 11  evidence, he made a choice and his boss -- the only
 12  person to whom he reported to at the time, Deputy
 13  Minister Todres testified that it was a lapse in
 14  judgment.  And I address that simply in response to the
 15  allegation, this allegation of sending a message.
 16                 And I have addressed that much more fully
 17  in my submissions and in my reply.  And frankly, I refer
 18  you to all of that and in particular at all of the
 19  evidence cited in support of that.  I don't need to beat
 20  it to death.  It -- it's quite obvious.
 21                 If it's a convenient time for a break,
 22  Commissioner, I'll have --
 23                 COMMISSIONER SIDNEY LINDEN:   Yes.  I hope
 24  Mr. Falconer will forgive us, Mr. Roy.  He had asked for
 25  a break this morning and I didn't want to break in the

230
  1  middle of his submission, but I do think we need a break
  2  now.  So I think this is an appropriate time to take a
  3  break.
  4                 THE REGISTRAR:   This Inquiry will recess
  5  for ten (10) minutes.
  6  
  7  --- Upon recessing at 3:24 p.m.
  8  --- Upon resuming at 3:36 p.m.
  9  
 10                 THE REGISTRAR:   This Inquiry is now
 11  resumed.  Please be seated. 
 12  
 13  CONTINUED BY MS. ANNA PERSCHY:
 14                 Commissioner, just before we broke, I was
 15  making submissions with respect to impressions and I
 16  wanted to go back to that for a minute.
 17                 Ms. Jai, one of the civil servants,
 18  testified about her impressions.  However, looking back
 19  on the evidence it's clear that she didn't take in or
 20  somehow didn't process some of the information that she
 21  received at the Interministerial Committee meetings.
 22                 For example, when she was asked, and I
 23  believe it was under cross-examination from My Friend,
 24  Mr. Downard, she was asked about the automatic gunfire
 25  reports, she recalls that this was somehow can been

231
  1  confused with reports of a flare.  And that's not
  2  accurate.
  3                 The evidence overall is quite clear there
  4  were flares thrown on the evening of September the 4th,
  5  1995 at the time of the initial takeover.  The report
  6  regarding the officer who heard -- what he heard, what he
  7  understood was automatic gunfire, that report was the
  8  next night.
  9                 And both Ms. Jai and Ms. Hipfner testified 
 10   that frankly they were sceptical about the information
 11  from the MNR representatives on the ground who were
 12  calling in at the Interministerial Committee meetings,
 13  both on September 5th and the 6th.  And in fact Ms. Jai
 14  was sceptical about their concerns back in August, 1995.
 15                 And in September, it appears from the
 16  contemporaneous notes that Ms. Jai and Ms. Hipfner didn't
 17  ask for confirmation or ask any questions of the MNR
 18  representatives on the ground. 
 19                 And Ms. Hipfner's insight, some ten (10)
 20  years later, was that the MNR representatives who were on
 21  the ground and calling in and her perception that they
 22  sounded excited -- sounded excited and that they were
 23  yelling into the phone, her insight, so many years later,
 24  was that those representatives on the ground didn't have
 25  the benefit of seeing the reaction of the civil servants

232
  1  sitting in a boardroom in Toronto.
  2                 People's musings as to what other people
  3  think or what they feel, how they feel, these sorts of
  4  musings are often inaccurate.  People misread other
  5  people's body language all the time.  People
  6  misunderstand what other people say all the time.  We've
  7  seen it during this Inquiry time and again.  That's the
  8  stuff of life.
  9                 In my submission, Commissioner,
 10  impressions are not a reliable basis upon which to make
 11  findings as to what occurred.  It maybe a good basis for
 12  writing a novel in the style of Virginia Wolfe of what
 13  people thought at a particular point in time, their state
 14  of mind, but it's not a good basis for making findings in
 15  an inquiry as to what occurred.
 16                 In my submission, Commissioner, there's
 17  been more than enough commentary about this.  What is
 18  needed is to assess what happened.  And very
 19  respectfully, I'm asking you to look at the evidence of
 20  what was said, recognizing people's recollections are
 21  certainly not perfect, recognizing that handwritten notes
 22  are just the gist of what was said, they're not a
 23  verbatim transcript.  
 24                 Recognizing all of that, I'm asking that
 25  you look at -- at that evidence and that you look at how

233
  1  Government considered these issues two (2) years earlier,
  2  that you look at what was done on the ground in 1995,
  3  what was occurring at the Park, and most -- perhaps most
  4  important of all, Commissioner, it's not what people
  5  said, it's what did people do.  What did the Government
  6  do?
  7                 Well, Minister Hodgson issued a press
  8  release.  Actually, he didn't issue a press release.  I
  9  take that back.  He responded to a media scrum after the
 10  local Mayor issued a press release there was a media
 11  scrum and Minister Hodgson, the Minister for MNR at the
 12  time, responded to questions from the media and said that
 13  the Government was looking at its legal options.
 14                 And the recommendation of the
 15  Interministerial Committee on consensus was to seek an
 16  injunction as soon as possible.  The government later did
 17  decide to seek an injunction.
 18                 And people may agree or disagree about
 19  whether or not in their view those steps were advisable. 
 20  They're clearly within the Government's authority and
 21  also equally clearly they are not causally connected to
 22  the death of Dudley George.  And I agree with the
 23  submissions of Mr. Strosberg on that and some of the
 24  other counsel.  There's simply no evidence of a causal
 25  connection.

234
  1                 And I note that in Mr. Klippenstein's
  2  reply, and he's not here but he told me not to take it
  3  personally and I won't, this isn't about my ego, he --
  4  Mr. Klippenstein attempted to resurrect the allegation
  5  about the comment, the "get the f'ing Indians out of the
  6  Park even if you have to draw guns".  And he suggested,
  7  well, maybe that was said after the Interministerial
  8  Committee meetings.
  9                 And frankly, in my submission, it's just
 10  outrageous to raise such an allegation at the end of this
 11  process without having put it to witnesses.
 12                 There's no evidence to support that
 13  suggestion.  We're two (2) years into this process and
 14  we're now to go back to unfounded rumours and
 15  allegations.  It makes no sense, Commissioner.  We've
 16  reviewed it.  We've looked in every nook and cranny. 
 17  We've got the evidence.
 18                 And in light of the repeated allegations
 19  that have been bandied about we request that you make the
 20  following findings with respect to Ms. Hutton.
 21                 1.  That she didn't direct or instruct the
 22  OPP.
 23                 2.  That she never advocated the use of
 24  force.
 25                 3.  In fact, she never advocated for any

235
  1  particular course of action.
  2                 And 4.  She certainly never intended to
  3  influence the OPP.  And the evidence on all of those
  4  points is very, very strong.
  5                 And with respect to the allegations of
  6  influence of the OPP, unintended or otherwise, they
  7  simply don't stand up to scrutiny.  Such allegations
  8  contradict the testimony of the police officers
  9  themselves.  Mr. Sulman referred to that, I'm not going
 10  to repeat it again.  You heard their evidence.
 11                 Such allegations also ignore the
 12  contemporary evidence.  Counsel have focussed on a few
 13  isolated passages in the scribe notes and they've
 14  repeated them endlessly, but they ignore the pages and
 15  pages of scribe notes which show what the police were
 16  doing and thinking.  That gets ignored.
 17                 The allegations ignore the phone calls,
 18  the radio transmissions on the night of September 6th. 
 19  What are all those phone calls and radio transmissions
 20  about?  It's what's going on at the scene.  That's what
 21  the police are thinking about.  That's what they're
 22  dealing with.
 23                 In my submission, the allegations of
 24  influence are simply unfounded.
 25                 And I'd like briefly to respond to a

236
  1  couple of points made by Mr. Falconer.  I'm not going to
  2  undress -- address the unfounded and unfair submissions
  3  about racism.  I'm not going to deal with the allegations
  4  about malice.  I've addressed them in my reply.  Frankly,
  5  I'm not going to dignify them by responding to them any
  6  further.  
  7                 I'm also not going to address the
  8  ridiculous conjecture surrounding the limited evidence
  9  about the calling of the dining room meeting.  That's
 10  covered in the reply.
 11                 I will address two (2) points.  One (1) is
 12  with respect to the Hansards, and I agree with some of
 13  the previous submissions on this point, including those
 14  of Mr. Downard.  And I would also like to add that Mr.
 15  Falconer asked Ms. Hutton about her role in preparing
 16  ministers for the Legislature, for question period.  And
 17  I'll refer you to her evidence in that regard.
 18                 The House is not a place where people
 19  deliver formal prepared speeches that have been written
 20  in advance.  It's a question period.  Politicians respond
 21  to whatever questions get raised and their staff try to
 22  anticipate what general issues may be asked and give them
 23  some basic information and the essence of the
 24  Government's position, which ministers may then use when
 25  -- when they're making their response.

237
  1                 The evidence is that the focus has always
  2  been the issue of the buildup of police and the question
  3  of direction of police, neither of which occurred.  And
  4  Mr. Falconer's attempts to portray this as somehow Ms.
  5  Hutton controlling what came out of Premier Harris's
  6  mouth or what have you, it's simply unfair and a twist of
  7  reality, both of what occurs at the House, the role of
  8  assistants and what happened here.
  9                 It is, in my submission, yet another
 10  example of an unfair, unwarranted attack on Ms. Hutton's
 11  credibility and her integrity.  This is a Party who has
 12  sought to assist you in this process.  She attended
 13  voluntarily.  She patiently tried to answer many
 14  repetitive and frankly sometimes offensive questions,
 15  candidly, honestly and with considerable grace under the
 16  circumstances.
 17                 And then second -- I said I was going to
 18  have two (2) points in response to Mr. Falconer -- the
 19  second is with respect to Mr. Falconer's analogy about
 20  Beckett and Henry II.  It's partly because I'm interested
 21  in history but it also demonstrates a critical lack of
 22  understanding about the dining room and the meeting
 23  there.
 24                 Mr. Falconer may be a student of drama but
 25  he appears not to be as much of a student of history. 

238
  1  The whole issue at the time of Henry II was that the
  2  English Crown had no legal authority over the Catholic
  3  Church and its officials, including Beckett.  There was
  4  no legal authority for dealing or, quote/unquote,
  5  "ridding oneself of the meddlesome priest".  That's not
  6  the situation here.
  7                 The clear evidence was that the Government
  8  had legal options to address the Ipperwash, in particular
  9  the injunction.  The evidence is that at the dining room,
 10  from all the witnesses who were there, is that it's the
 11  injunction, the legal option that was available to the
 12  Government that was being discussed.
 13                 The analogy doesn't work and ignores the
 14  most basic evidence of all the witnesses as to what the
 15  Government was considering and what they did.  They
 16  decided to go to Court and they were in the process of
 17  doing that.
 18                 It's not the use of force, it's a response
 19  to means which involved going outside, legitimate and
 20  legal processes.  Self-help remedy Mr. Sulman referred
 21  to. It brings them back into a legal process.  
 22                 And I have to agree with Mr. Downard that
 23  there have been attempts at character assassination.  But
 24  his client isn't the only one (1) who's been affected.
 25                 My client has also been attacked.  She's

239
  1  the former Premier's Executive Assistant.  These attacks
  2  were unfounded, unfair and unhelpful.  The treatment of
  3  my client who is an advisor, not a decision maker, has
  4  frankly been nothing short of outrageous.
  5                 And in my submission unfortunately these
  6  attacks have also impeded this Inquiry process and
  7  undermined it's aims.  This Inquiry raises important
  8  issues.  We need calm, careful, rational consideration. 
  9  Not name calling and smearing and character
 10  assassination.
 11                 We haven't made any formal
 12  recommendations.  My client is a private individual and
 13  accordingly we didn't seek standing for Part 2.  However
 14  having sat through this process and participated in this
 15  process, I did include some concluding thoughts for you
 16  at the end of our submissions.
 17                 And I'd like to simply conclude by
 18  thanking you for allowing us to participate and for your
 19  patience, Commissioner.  Like Mr. Fredricks, I never
 20  anticipated how long this Inquiry would take.  It has
 21  taken a long time and required a great effort.
 22                 And I would like to thank Commission
 23  Counsel.  I would like to take this opportunity to thank
 24  them for all their efforts.  And unless you've got any
 25  questions, that's all I have to say.  Thank you very

240
  1  much, Commissioner.
  2                 COMMISSIONER SIDNEY LINDEN:   Thank you
  3  very much, Ms. Perschy.  
  4                 MR. DERRY MILLAR:   Commissioner, if we
  5  might before Ms. Clermont starts on behalf of the
  6  Municipality, if I could just talk to you about a couple
  7  of scheduling matters.
  8                 The first is that Mr. Sandler has
  9  requested -- Mr. Sandler is still in Court in Toronto
 10  with respect to another matter today and that you heard
 11  about yesterday, and he's made a request that he be -- he
 12  start his submissions Wednesday at 2:00 p.m.
 13                 And -- which is -- and in the
 14  circumstances, it seems to me a reasonable request which
 15  I discussed with you and I've advised Mr. Sandler that he
 16  could start tomorrow at 2:00.
 17                 COMMISSIONER SIDNEY LINDEN:   I think it
 18  just works out with how we are proceeding.  I don't think
 19  that it's that much of a concession or --
 20                 MR. DERRY MILLAR:   Well what it'll mean
 21  is -- is we may have -- depending on how long everyone is
 22  tomorrow morning, there may be a short period of down
 23  time.  But I don't anticipate too much.
 24                 What I pro -- what I suggest we do is that
 25  we finish the Municipality of Lambton Shores today and

241
  1  then begin tomorrow morning and then adjourn til tomorrow
  2  morning and start with the Chief Coroner at nine o'clock. 
  3                 We would then have the Province, the OPPA
  4  and then the OPP starting at 2:00.  And then on Thursday
  5  morning we will have the parties with the Part 2
  6  standing.
  7                 There are seven (7) of them.  They have a
  8  half an hour each --
  9                 COMMISSIONER SIDNEY LINDEN:   Maximum.  Up
 10  to a half hour.
 11                 MR. DERRY MILLAR:   -- maximum -- maximum. 
 12  So that will be -- they'll be done by at the latest 12:45
 13  and I've sent an e-mail around to My Friends but for the
 14  benefit of everyone else, the -- subject to confirmation
 15  from one (1) of the drums which we hope to have tomorrow
 16  morning, the closing will be on Thursday at 2:00 p.m.,
 17  not on Friday.
 18                 And we expect to receive the confirmation
 19  -- I'll be able to make -- confirm this tomorrow morning
 20  as I understand it -- with respect to the drums.  So I
 21  suggest subject to your direction, that we -- Ms.
 22  Clermont make her presentation and then perhaps adjourn
 23  for the day.
 24                 COMMISSIONER SIDNEY LINDEN:   That's fine. 
 25  Ms. Clermont.  Good afternoon.

242
  1                 MS. JANET CLERMONT:   Good afternoon,
  2  Commissioner.
  3  
  4                       (BRIEF PAUSE)
  5  
  6                 MS. JANET CLERMONT:   And I can advise
  7  that I'll be approximately ten (10) minutes.
  8  
  9  FINAL SUBMISSIONS FOR THE MUNICIPALITY OF LAMBTON SHORES:
 10                 MS. JANET CLERMONT:   It's the
 11  Municipality's intention to approach submissions with a
 12  view to looking forward.  I'd like to address three (3)
 13  issues in -- in my submissions; firstly, the citizens
 14  group that gathered at the MNR parking lot on the 6th;
 15  communications with the Province and communications with
 16  the OPP.
 17                 Firstly, the Municipality recognizes that
 18  what happened was a tragedy and the only good thing to
 19  come out of tragedies are recommendations that ensure it
 20  will not happen again.  There are lessons to be learned
 21  from Ipperwash and the Municipality submits that one (1)
 22  of the core lessons is the need for early communications.
 23                 Ipperwash is an example of how lack of
 24  communications escalated a volatile situation.  Written
 25  submissions were made to this effect so I don't plan to

243
  1  go over them here but I would like to look at an example
  2  of where communications did work at Ipperwash and that's
  3  the example of the Parking lot incident on the evening of
  4  the 6th.
  5                 Now, the Commission has heard evidence
  6  that shortly after 6:00 p.m. on the 6th Sergeant Wright
  7  met with a group of twenty (20) to forty (40) men, women
  8  and children that gathered at the MNR parking lot.  The
  9  group informs Sergeant Wright that they were preparing to
 10  march to the Park to express their frustration.
 11                 Wright described the group as frustrated. 
 12  And to his credit he communicated to the group that the
 13  OPP was handling the situation and weren't going to go
 14  away until the problem was solved.  He testified that the
 15  group immediately felt better and they went home.
 16                 He convinced the group not to march to the
 17  Park and I use this example as an encounter -- I use this
 18  encounter as an example to illustrate that communications
 19  works and in this case it turned a frustrated group
 20  around.
 21                 The group that gathered in the MNR parking
 22  lot has been referred to in some parties' submissions as
 23  "an angry mob" and "angry white cottagers" and it's my
 24  submission that these descriptions are unfortunate and
 25  not helpful and serve to drive a wedge between

244
  1  communities.
  2                 Sergeant Wright specifically testified on
  3  this point indicating that the group was not an angry
  4  mob.  They were frustrated and upset but they were not a
  5  mob.  This was a group of people that had legitimate
  6  concerns about their safety and their property and they
  7  had a right to be informed of what was happening in their
  8  community.  They just wanted information.  They got it
  9  and went home.
 10                 Secondly, I just want to touch on
 11  communication between the Province and the Municipality. 
 12  In a time of crisis constituents often turn to their
 13  local officials for answers.  Municipal officials are
 14  closer to people than other levels of government in the
 15  sense that they interact with people on a daily basis in
 16  the streets and in coffee shops.
 17                 They're approached, asked questions and
 18  they're expected to have answers to basic questions such
 19  as what's happening?  What's the Government doing? 
 20                  When the Ipperwash occupation occurred
 21  the Municipality didn't have any answers to give because
 22  they weren't provided any information.
 23                 The Inquiry has not heard any evidence
 24  that anyone from the Provincial offices in Toronto
 25  contacted the Municipality in the summer of 1995 and

245
  1  during the occupation.
  2                   Our written submissions again address
  3  the lack of communication between the provincial
  4  government and the municipality so I won't go into it
  5  here.  But to say that policies and protocols need to be
  6  in place that anticipate a communications plan that
  7  includes the Municipality and discusses what the
  8  Government is doing.
  9                 Communications must involve a two-way
 10  dialogue in which a Municipality is consulted on its
 11  views, concerns and ideas.  This should be done at the
 12  outset and the earlier the better.
 13                 Communication plans should be well in
 14  place before a crisis erupts.  The Municipality is an
 15  ideal point of contact for distributing this information
 16  and updating the public.  If the public doesn't know
 17  what's going on they become anxious and frustrated.  
 18                 Who provides the information, I submit, is
 19  as important as the information provided.  The
 20  Municipality submits that the communication plan should
 21  anticipate direct communication between the Municipality
 22  and the Minister in charge.
 23                 And, finally, with respect to
 24  communication between the Municipality and the OPP, we
 25  agree that there should be no inflexible rule that

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  1  Incident Commanders cannot communicate with community
  2  leaders.  And that the best approach is to allow the
  3  Incident Commander discretion as to who he or she will
  4  meet with and when.  Communications during a crisis
  5  situation necessitates immediate action and direct
  6  communication.
  7                 Again, the Municipality is one (1) of the
  8  most effective and valuable conduits through which
  9  information is transmitted from the police to the public. 
 10  The public needs to be aware of the nature of the
 11  occupation and how it may affect their lives.
 12                 In conclusion, the Municipality had and
 13  continues to have good relations with the Kettle and
 14  Stony Point Chief and Council and its First Nation
 15  neighbours.  These communities must live together as
 16  neighbours and poor communications from Government, both
 17  Federal and Provincial, drive a wedge between communities
 18  and threaten these good relations.
 19                 The Municipality asks the Commissioner to
 20  encourage all levels of Government to put their problems
 21  on the table and work towards a resolution through
 22  meaningful, respectful and inclusive communications.
 23                 Thank you.  Those are my submissions.
 24                 COMMISSIONER SIDNEY LINDEN:   Thank you
 25  very much.

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  1                 We're ending a little earlier than we
  2  expected but do you think this is an appropriate time to
  3  adjourn --
  4                 MR. DERRY MILLAR:   Well, it gives us a
  5  good balance --
  6                 COMMISSIONER SYDNEY LINDEN:   -- tomorrow
  7  morning?
  8                 MR. DERRY MILLAR:   ---it gives us a good
  9  balance for tomorrow morning.
 10                 COMMISSIONER SYDNEY LINDEN:   That's fine. 
 11  So we'll adjourn now until tomorrow morning at nine
 12  o'clock.
 13                 MR. DERRY MILLAR:   Thank you very much,
 14  sir.
 15                 COMMISSIONER SIDNEY LINDEN:   Thank you
 16  very much.
 17                 THE REGISTRAR:   This Public Inquiry is
 18  adjourned until tomorrow, Wednesday, August 23rd, at 9:00
 19  a.m.
 20  
 21  --- Upon adjourning at 4:00 p.m.
 22  
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  1  
  2  
  3  Certified Correct,
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  5  
  6  
  7  
  8  
  9  _________________
 10  Carol Geehan, Ms.
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