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 March 8th, 2005 25

2
  1                        Appearances
  2  Derry Millar      )             Commission Counsel
  3  Susan Vella        )    (np)
  4  Donald Worme, Q. C )
  5  Katherine Hensel  )
  6  Jodi-Lynn Waddilove )   (np)
  7  
  8  Murray Klippenstein )            The Estate of Dudley 
  9  Vilko Zbogar       )   (np)     George and George
 10  Andrew Orkin       )   (np)     Family Group
 11  Basil Alexander    )  (np)      Student-at-Law
 12  
 13  Peter Rosenthal  )              Aazhoodena and George
 14  Jackie Esmonde   )   (np)       Family Group
 15  
 16  Anthony Ross     )   (np)       Residents of 
 17  Kevin Scullion   )              Aazhoodena  (Army Camp)
 18  William Henderson )              Kettle Point & Stony
 19  Jonathon George  )              Point First Nation
 20  
 21  Kim Twohig       )              Government of Ontario
 22  Walter Myrka     )   (np)
 23  Sue Freeborn     )
 24  Maureen Smith    )   (np)
 25  Lynette D'Souza  )    (np)

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

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

1 TABLE OF CONTENTS 2 Page 3 4 JOSEPH CHICO RALF, Resumed 5 Cross-Examination by Andrea Tuck-Jackson 6 6 Cross-Examination by Mr. Ian McGilp 13 7 8 ROBERT BRUCE WATTS, Affirmed 9 Examination-In-Chief by Mr. Derry Millar 35 10 11 Submission by Mr. James K. McDonald 44 12 13 ROBERT BRUCE WATTS, Resumed 14 Continued Examination-In-Chief Mr. Derry Millar 94 15 Cross-Examination by Mr. Peter Rosenthal 101 16 Cross-Examination by Mr. Murray Klippenstein 103 17 Cross-Examination by Ms. Kim Twohig 110 18 Cross-Examination by Mr. Peter Downard 114 19 Cross-Examination by Mr. David Roebuck 119 20 Cross-Examination by Mr. William Henderson 130 21 Re-Direct Examination by Mr. Derry Millar 135 22 23 24 Certificate of Transcript 137 25

1 --- Upon commencing at 9:01 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. JOSEPH CHICO RALF: Good morning. 9 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 10 Tuck- Jackson? 11 MS. ANDREA TUCK-JACKSON: Good morning, 12 Mr. Commissioner. Good morning, Mr. Ralf. 13 THE WITNESS: Good morning. 14 15 JOSEPH CHICO RALF, Resumed 16 17 CROSS-EXAMINATION BY MS. ANDREA TUCK-JACKSON: 18 Q: My name is Andrea Tuck-Jackson and 19 I'm counsel on behalf of the OPP and I just have very 20 limited questions you'll be pleased to hear about the 21 report that you prepared during September the 18th to the 22 21st. All right? 23 A: That's fine. 24 Q: And I see that you don't have it in 25 front of you and I'd like it in front of you, if

1 possible. Could we have the document brief, placed in 2 front of Mr. Ralf? 3 A: Yes, I just have my own copy. 4 Q: Oh, fair enough. 5 6 (BRIEF PAUSE) 7 8 A: Oh, the original? This is the -- 9 Q: We're doing our best to give you a 10 multitude of copies of the same document. 11 All right, Mr. Ralf. You told us 12 yesterday that you first arrived at the Ipperwash area 13 not before September the 15th; is that fair? 14 A: That's correct. 15 Q: All right. And I wasn't clear as to 16 when you first had an opportunity to look at -- and when 17 I say, look at, I simply mean attend at, in fairness, the 18 crime scene at the intersection of Army Camp Road and 19 East Parkway Drive. When was that? 20 A: I can recall to my best recollection 21 that it was within several hours of arriving at the Camp. 22 Q: All right. And I gather, sir, that 23 upon your arrival, you came to learn that various First 24 Nations persons had already had access to that crime 25 scene?

1 A: Yes, I was informed of that. 2 Q: In particular, sir, I can advise that 3 we've heard evidence from a variety of witnesses who 4 testified thus far who spoke of wandering all around the 5 crime scene within several hours of the unfortunate 6 shooting picking up casings and bullet fragments. 7 I gather that was some of the information 8 you came to learn? 9 A: Yes, I was advised of that. 10 Q: All right. And I noticed, sir, in 11 your notes -- or in the notes, rather, that were taken of 12 an interview conducted by Ms. Opekokew -- Opekokew, my 13 apologies -- by Ms. Opekokew that -- 14 A: Excuse me -- what was that name 15 again? I'm just kidding, I heard you the first time. 16 Q: Touche. I noticed, sir, it's at Tab 17 7 of your binders -- of your binder, excuse me and it's 18 an observation that you made that appears at about the 19 third page of those typed notes of that interview about a 20 quarter of the way down and I took interest in it because 21 in my respectful view it's quite a fair observation on 22 your part. 23 You were asked by Ms. Opekokew whether, I 24 gather, by the time that the OPP had access to the crime 25 scene you were asked if it was tainted. And you'll note,

1 sir, that there is a recording that you agree that yes, 2 by the time the OPP had access to the crime scene, it was 3 tainted. Do you recall indicating that to Ms. Opekokew? 4 A: To be honest, that's many years ago-- 5 Q: Fair enough. 6 A: -- and I don't really recall. 7 Q: All right. Let's -- let's approach 8 it from another direction. Having regard to your 9 experience as a police officer, I trust that in an ideal 10 situation, the ideal crime scene is one that isn't 11 disturbed by anyone who's had a chance to run through it 12 before forensic investigators get a chance to examine it? 13 A: Yes, you are correct. 14 Q: All right. So, from that 15 perspective, by the time the OPP and the SIU have access 16 to that crime scene on September the 18th it was, to a 17 large degree, contaminated in the sense that others had 18 been permitted to walk through that scene prior to their 19 access? 20 A: Yes, I would agree to that. 21 Q: All right. Now, you were also asked 22 yesterday by My Friend Mr. Klippenstein, and I'm 23 referring, Mr. Commissioner, to a passage at page 252 of 24 yesterday's transcript, you were asked whether as a 25 result of your observations during that three (3) day

1 period from September the 18th to the 21st whether or not 2 any of the bullets or casings you observed appeared to 3 have come from First Nations guns as opposed to police 4 guns and you indicated yesterday that -- that the answer 5 was no, you couldn't see any evidence that casings or 6 bullets had come from First Nations guns. 7 Do you recall that exchange yesterday? 8 A: Yes, I do. 9 Q: All right. And I gather, sir, that 10 your conclusion in that regard is based solely on the 11 casings that were collected on September the 18th and 12 19th and 21st? 13 A: Yes, that's correct. 14 Q: All right. And in particular, I 15 noted, sir, in the report that you had prepared, there 16 was a -- a 223 casing that was picked up and I'm looking 17 at your report, at the top of the page, it says: 18 "Evidence collected at south shoulder 19 of Parkway Road." 20 21 (BRIEF PAUSE) 22 23 A: I have to get my glasses on here. 24 25 (BRIEF PAUSE)

1 A: Yes, I'm viewing that now. 2 Q: I'm looking at Items 20 and Items 24 3 in your report and you'll see that there's a reference to 4 a gun casing from a 223 calibre gun? 5 A: Yes, that's a police issue weapon. 6 That is -- I was trained on that weapon, also. 7 Q: So, what you're saying to us is that 8 from your experience you are aware that police use this 9 type of weapon? 10 A: Yes. 11 Q: And it's based on that that you were 12 of the view that there was a connection between that 13 casing and that particular weapon? 14 A: Yes. 15 Q: Okay. And I see also, sir, that Item 16 24 refers to a 40 calibre gun casing and -- and I 17 anticipate, sir, that again your opinion that this had to 18 be somehow connected to a police weapon was because in 19 your experience you're aware that officers are issued 40 20 calibre handguns? 21 A: I was not drawing any conclusions, I 22 was just -- that was the evidence that we found during 23 our investigation -- 24 Q: Right. 25 A: -- and that's what I put in my

1 report. 2 Q: Right. All right. So, what you're 3 telling us, sir, then is that you can't exclusively and - 4 - and say with absolute scientific certainty that the 5 casings that were collected during the course of those 6 two (2) days necessarily came from a police issued 7 weapon? 8 A: I'm not experienced to -- for that -- 9 in that area. 10 Q: And -- and that's what I anticipated 11 you would say. Again, sir, you -- you haven't had the 12 benefit of any of the test results that were conducted at 13 the Center of Forensic Sciences in relation to any of 14 these casings, have you? 15 A: No. 16 Q: No, and that's not a criticism -- 17 A: No. 18 Q: -- it's just an observation that I 19 was going to make. 20 Thank you, sir, those are my questions. 21 A: You're welcome. 22 COMMISSIONER SIDNEY LINDEN: Thank you 23 very much. I think Ms. Jones? Oh, I'm sorry, Mr. 24 McGilp, I'm sorry. 25 MR. IAN MCGILP: Thank you, Mr.

1 Commissioner. 2 COMMISSIONER SIDNEY LINDEN: I didn't see 3 you back there. 4 MR. IAN MCGILP: I understand. 5 COMMISSIONER SIDNEY LINDEN: Good 6 morning. 7 MR. IAN MCGILP: You're used to seeing 8 Ms. Jones here. 9 COMMISSIONER SIDNEY LINDEN: Good 10 morning, Mr. McGilp. Ms. Jones estimated approximately 11 twenty (20) minutes; is that reasonable from your 12 perspective? 13 MR. IAN MCGILP: I think I'll beat that, 14 sir. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 MR. IAN MCGILP: Beat it on the low end. 17 18 CROSS-EXAMINATION BY MR. IAN MCGILP: 19 Q: Good morning, Mr. Ralf. 20 A: Good morning. 21 Q: My name is Ian McGilp and I'm one of 22 the lawyers who represent the OPP Association. 23 First, sir, I wanted to ask you, Ms. -- My 24 Friend Ms. Tuck Jackson just asked you some questions 25 about the crime scene that you investigated on September

1 the 18th to 20th. And you agreed with her, I -- I take 2 it, that the fact that there were a number of individuals 3 had conducted a search of that area for bullet casings 4 shortly after the shooting, I think you agreed that that 5 would have contaminated the crime scene and -- and -- or 6 would have -- would have comprised the integrity of the 7 scene before the -- you and the other investigators got 8 there; is that right? 9 A: That's correct. 10 Q: And I don't know whether you're aware 11 of it but we've also heard evidence here that on the 12 morning of September the 7th, after a number of people 13 came from Kettle Point and walked down Highway 21 to the 14 Army Camp, that a number of those people went down to the 15 Park and that a number of people left the Park and walked 16 across the sandy parking lot and up East Parkway Drive to 17 where the OPP had its command centre, and that there was 18 something of a confrontation between the demonstrators 19 and the OPP at that time. 20 And I take it you'd agree that the fact of 21 those people marching through the parking lot and up the 22 road would further compromise the scene, wouldn't it? 23 A: I -- I have no knowledge of that day 24 or anything. All I have is my evidence and from my 25 report from the time that I was there.

1 Q: Yes. 2 A: So, I have no -- no way of knowing 3 how many people, or whoever or -- 4 Q: Yes. 5 A: -- or whatever happened then; I had 6 no knowledge of that. 7 Q: I understand that. But you'd agree 8 with me that if a number of people walked through the 9 sandy parking lot and up to the -- up along East Parkway 10 Drive, which is the area that you investigated, isn't it? 11 A: Yes. 12 Q: If a number of people walked through 13 that area on September the 7th and then back to the Park 14 again, that would contaminate the scene if that happened, 15 wouldn't it? 16 A: It obviously wouldn't help the scene. 17 Q: That's correct. I mean, things in 18 the scene might have been disturbed by the people walking 19 through it, that's correct, isn't it? The scene, the 20 ground would have been disturbed by a number of people 21 walking over that ground? 22 A: It obviously wouldn't help the scene. 23 Q: Okay, sir. We've also heard evidence 24 that Mr. Warren George, after the shooting, used his 25 backhoe to dig some sand from along the fence line

1 outside the Park and to build a sandpile at the south end 2 of the sandy parking lot, and that he also used his 3 backhoe to move a number of concrete -- two (2) or I'm 4 not sure how many but some number of concrete blocks, 5 large concrete blocks out into the area outside the park. 6 And you'd agree that a backhoe working in 7 that area would further compromise the scene, wouldn't 8 you? 9 A: I wasn't aware of where -- or advised 10 of where the sand came from or anything. I was just -- 11 seen the sandpile that was there when I arrived. 12 Q: When you arrived. Well, Mr. Warren 13 George told the Commission when he was giving evidence 14 that he dug the sand that made that pile, he dug it out 15 from along the fence line and moved it to that pile. 16 So, accepting Mr. George -- accepting Mr. 17 George's evidence, you would agree, I take it, that that 18 would further contaminate the integrity of the -- of the 19 scene, wouldn't it? 20 A: It wouldn't help the scene at all. 21 Q: Thank you, sir. There's just one (1) 22 last thing I want to mention in this regard. 23 Roderick George, when he gave evidence 24 here, told the Commission that on the morning of the 7th, 25 after the people came down the road from Kettle Point to

1 the Army Camp, that he and a number of other people, some 2 of whom he described as political figures, and I think he 3 referred to representatives from the Assembly of First 4 Nations and the Chiefs of Ontario, that they and a number 5 of other people got on the bus that had been used in the 6 confrontation and drove down to the Park in the bus, 7 where those political people were briefed on the events 8 of the previous night. 9 And the question I would ask you, sir, 10 would you not agree that the bus being used to transport 11 a number of people to the Park would have contaminated 12 the bus as a crime scene or, in your -- in your words, 13 would not have helped preserve the integrity of it given 14 that other people were riding on that bus the next 15 morning? 16 A: Like I stated before, from my 17 previous police training, we were trained to protect any 18 scene, if it's -- whether an accident scene or, say, a 19 fire scene, is we protect the scene for any contamination 20 or for anyone entering. So you've asked me the same 21 question, just -- you just went different areas. 22 Maybe it would be quicker if you were to 23 just put it all together then. Because you're asking the 24 same thing over and over again. 25 Q: I'm sorry, sir, but -- it's true, but

1 there are different things in -- I mean, I guess the 2 reason I've asked you the same question over and over 3 again is because there are different things that happened 4 to that crime scene at different points in time, each of 5 which would have contributed to some degree to the 6 contamination of that scene. 7 And that when you -- I would ask you that, 8 when you put them all together, the -- the people 9 searching for casings, the -- the people walking down to 10 the command centre, the backhoe working in the area -- 11 A: Excuse me. 12 Q: -- you would have a significantly 13 contaminated crime scene? 14 A: It would not help the crime scene at 15 all. 16 Q: Thank you, sir. You'll be glad to 17 know I won't ask you anymore questions about that. I 18 would, sir, like to ask you a few questions about your 19 contact with the OPP on Northville Road on September the 20 16th of 1995. 21 And the first question, sir, is, were you 22 aware on September the 16th or have you since become 23 aware that the police had intelligence and indeed that a 24 provincial alert had been issued in relation to a Ford 25 Aerostar van bearing Quebec licence number KJR-882, which

1 was believed to be possibly carrying weapons? 2 Were you aware of that at that time or 3 have you since become aware that there was intelligence 4 and Provincial alert relating to that van? 5 A: I was advised of the anonymous tip. 6 Q: Thank you, sir. And just for the 7 benefit of the record, I would refer to the police 8 statements of several officers, Constable Ali at Document 9 2003298, Constable Hill at Document 2003587, Constable 10 Millson, 2003729, Sergeant Grossmith, 2003556, and 11 Constable Macavoy, 2004018, all evidence that Provincial 12 alert and -- and police intelligence. 13 Now, I take it from what you told us 14 yesterday, sir, that the van, the -- the Ford van was in 15 fact searched, was it not? You talked about them 16 removing articles from the van? 17 A: Yes, what I observed. 18 Q: Yes. Now would you agree, that based 19 on the police intelligence and the fact that the van was 20 indeed searched, that the van was the target of the stop 21 on that occasion? 22 A: No, I wouldn't agree to that. 23 Q: The intelligence was that there was a 24 Ford Aerostar van with a particular licence number that 25 was possibly carrying arms and that the police were

1 alerted to look out for that vehicle, you wouldn't agree 2 with me that that was -- that the van was the target of 3 the police stop? 4 A: If that was the case, why were we 5 stopped? 6 Q: Well, we'll come to that in a moment, 7 sir. For the moment I would ask you though, based on the 8 intelligence that the police had that there was a Ford 9 Aerostar van possibly carrying weapons and that there was 10 a provincial alert issued in relation to that vehicle, 11 that the van was the target of the stop? 12 I mean, if you're an experienced police 13 officer, if you've got an alert to look out for a 14 particular vehicle with a licence number that was 15 possibly carrying weapons, then -- and you saw that 16 vehicle and you stopped it, then you'd agree that that 17 was why you stopped it, wouldn't you? 18 A: Yes. 19 Q: Thank you, sir. Now, if I may, I 20 want to take you briefly to the notes you made of that 21 occasion. And I think you have them in your book there. 22 Those are the handwritten notes. Do you have them? 23 A: Yes, I do. 24 Q: Thank you. And with your assistance, 25 I mean I -- I was impressed in reading your notes, I

1 found that your notes were quite detailed and -- and 2 coherent, and with your assistance I'd like to read at 3 least parts of your notes into -- to the Commission. 4 COMMISSIONER SIDNEY LINDEN: For the 5 record, this is Exhibit 267? 6 MR. IAN MCGILP: That's correct -- 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 MR. IAN MCGILP: -- Mr. Commissioner. 9 10 CONTINUED BY MR. IAN MCGILP: 11 Q: You see at the top there, it says -- 12 you referred to two (2) officers, Constable Millson and 13 Acting Sergeant Grossmith, and you say: 14 "TRU Team present." 15 And then you say: 16 "Followed vehicle about ten (10) 17 kilometres, van was following 18 ourselves, Dennis Nicholas (phonetic), 19 wife Kathleen (phonetic)." 20 Is that Kathleen Sky (phonetic)? 21 A: That's Kathryn(phonetic). 22 Q: Kathryn Sky: 23 "Age two (2) present." 24 Now, stopping there, you say that the van 25 was following you, was following yourselves. And I take

1 it you mean by that that the two (2) vehicles were in 2 fact travelling together, is that -- and you knew who was 3 in the other vehicle, didn't you? 4 A: Yes. 5 Q: So, the two (2) vehicles were 6 travelling together? 7 A: They were following us to the Camp. 8 Q: Yes. Would that -- in your mind, 9 would that not possibly explain why the truck was stopped 10 as well as the van? 11 A: No. Because the -- you said the 12 alert was on the van, not on our vehicle. 13 Q: Yes. But the two (2) vehicles -- 14 A: We were travelling down the road, 15 like, they were just behind us. 16 Q: They were behind you. And you said 17 that they were following you and you knew who was in the 18 van. 19 And I thought you agreed with me a second 20 ago that the two (2) of you were travelling together -- 21 the two (2) vehicles were travelling together? 22 A: Yeah. We were going to the Camp. 23 Q: Yes. Carrying on with your notes, 24 sir, you says -- it says: 25 "Cruiser in front of truck and had us

1 stopped, four (4) officers, van was 2 followed by several -- was..." 3 Could you help me there: 4 "Van was..." 5 A: "Followed by several officers in 6 units." 7 Q: "In units." And then: 8 "Millson." 9 Is that -- is that Millson? 10 A: Yes. 11 Q: "Approached vehicle and had Bob 12 Antone get out of vehicle and identify 13 himself and myself. I was to put hands 14 on roof of vehicle, unable to get out 15 of vehicle. Dennis Nicholas (phonetic) 16 was removed from his vehicle and him 17 handcuffed and placed in vehicle." 18 I can't read that next word. Do you know 19 what it is? The last line on that page, "handcuffed"? 20 A: Yes. I just put in brackets, like, 21 police, just to show that it was a police vehicle he was 22 placed into. 23 Q: I see. I see. Thank you. Then over 24 on the page, at 15:30 hours: 25 "Millson advised to Bob and myself that

1 the reason for vehicle stopped, 2 received information weapons in 3 vehicle. Complete search of van." 4 And then I can't read the word on that -- 5 by that bullet point: 6 "Present five (5) cruisers." 7 Was it? 8 A: Yes. 9 Q: "Present five (5) cruisers, two (2) 10 OPP -- two (2) OPP vans, TRU Team. 11 Approximately ten (10) officers on 12 scene and two (2) females. Search." 13 Is that: 14 "Search completed." 15 Search was -- 16 A: Yes. The search was: 17 "Search completed. Nothing found 18 incriminating." 19 Q: And then: 20 "Supporters from Camp..." 21 A: "Arrived", yes. 22 Q: Thank you, sir. Now, would you agree 23 with me that as a trained police officer, if something 24 important happens at a particular incident, that would be 25 something you would be trained to put in your notes; is

1 that correct? 2 A: Yes. 3 Q: And you'll notice, sir, that there is 4 no mention in your notes of any guns being drawn? 5 A: No. 6 Q: I want to read you a very brief 7 passage from the evidence you gave yesterday. And for 8 the benefit of My Friends, this is at page 228 of 9 yesterday's transcript. At line 12 of that page you say: 10 "There was an officer with a drawn 11 revolver to -- to my right, pointing at 12 me, and he was very nervous and shaking 13 and I asked him not to point the gun at 14 me. I made a comment to him. I told 15 him that it makes me nervous him 16 pointing the -- the gun at me like 17 that, because maybe it could go off and 18 you might shoot another one of our 19 members." 20 A: Yes, I made that comment. 21 Q: Now, the question I have to you, sir, 22 I suggest to you if that incident had occurred as you 23 described it there, that is something that you would have 24 regarded as significant enough to have made a note of it 25 in your notes.

1 A: At the time I made these brief notes 2 -- and my main focus at the time was the memorandum of 3 understanding and the people at Stoney Point. 4 I was not that -- I was concerned about 5 the weapon being pointed at myself, but I was more 6 concerned about the issues at Stoney Point and the 7 members there and the crime scene; that's where my mind 8 was at, more so. 9 And I was aware and thinking at the time 10 also of the -- we were on our way at that time of the 11 signing of the memorandum of understanding and that this 12 incident did not help that situation at all. 13 Q: Nevertheless, sir, your mind was on 14 the incident directly enough that you recorded the fact 15 of how many officers were there; how many cruisers were 16 there; which officers approached the van; that the 17 individual Mr. Nicholas was handcuffed; that he was 18 placed in a police cruiser. 19 You gave quite a lot of detail in those 20 notes about what happened on that occasion and yet you 21 left out this story about an officer who was very nervous 22 and shaky, pointing a gun at you, and you being concerned 23 that it might go off accidentally and you might get shot. 24 And I suggest to you, sir, that if that 25 had happened the way you described it, it's something

1 that would have been well more important than other 2 things that you did include in your notes and that you 3 would have included it in your notes? 4 A: No. As you can see the notes are 5 very brief. I just made just points. 6 Q: Okay, sir. One of the documents 7 that's been disclosed to the Commission and through the 8 Commission to the various parties is an article from the 9 London Free Press on September the 18th of 1995 and for 10 the benefit of My Friends it's Document Number 1000600. 11 And in that article, the reporter quotes 12 Mr. Bob Bressette, who I believe is a councillor at the 13 Kettle and Stony Point Band or was at that time, and that 14 Mr. Bressette, Mr. Bob Bressette told the reporter that 15 Bob Antone was in constant contact and telephone contact 16 with Mr. Bressette during the course of the search. 17 And the question I have, sir, is just: 18 Did you notice Mr. Antone using his cell phone during the 19 course of that incident? 20 A: I can't recall at this time. 21 Q: You don't recall one way or the 22 other? 23 A: This is far back -- I do not -- I 24 can't recall. 25 Q: Fair enough, thank you, sir. Now,

1 you said yesterday in your evidence and for the record 2 it's at page 229 -- excuse me one moment, sir. 3 4 (BRIEF PAUSE) 5 6 Q: That you said that when the police 7 removed articles from the van they did so in a 8 disrespectful manner, you remember saying that? 9 A: Yes. 10 Q: Now, the statement of Constable 11 Millson, which is one of the documents disclosed through 12 the Commission and for the benefit of Counsel that 13 Document Number is 2003729. 14 He says that, and when the search was 15 completed the articles taken out of the van were returned 16 to the van neatly, that the van was then shown to Mr. 17 Nicholas and Ms. Sky and that they told Constable Millson 18 that they had been fairly treated. 19 Now, the question that I would ask you is: 20 Would you agree that if Mr. Sky and Ms. -- pardon me, Mr. 21 Nicholas and Ms. Sky would not have told Constable 22 Millson they'd been fairly treated if they had thought 23 that the van had been searched in a disrespectful manner? 24 Would you agree with that? 25 A: I can't agree, because I don't know

1 if they, in fact, stated that. 2 Q: I understand that, sir. You didn't 3 hear that observation -- 4 A: No. 5 Q: -- but if Constable Millson comes and 6 gives evidence that that's what he was told, would you 7 agree that they would not -- the two (2) individuals 8 would not have told him that if the van had, in fact, 9 been searched in a disrespectful manner? 10 And you'll agree, well, I'm sorry, would 11 you answer that question, please? 12 A: That would be hard for me to agree, 13 because I -- I -- like I said, I would have no knowledge 14 of what they said or maybe, in fact, they just wanted to 15 be on their way. 16 Q: Yes. You'll agree, through, that you 17 were not actually in a position to -- you were sitting in 18 the truck during the whole time, were you not? 19 A: Yes. 20 Q: So, that you weren't actually in a 21 position to -- and -- and I should ask you, I guess, the 22 Ford Aerostar van has a rear door, does it not in the 23 back of the van? 24 A: Yes, there's a hatch door. 25 Q: And that's -- I -- from the police

1 notes, it's quite clear that that rear door, that hatch 2 door was opened and the articles were taken out that way 3 and the truck -- or the van, pardon me, was behind the 4 truck. 5 So, you would not -- you were not in a 6 strong position to see the course of that search, were 7 you? 8 A: I was in a position to see several of 9 the articles being removed from that vehicle. 10 Q: And what did you think was 11 disrespectful about it? 12 A: I just observed some of our sacred 13 items that they had and just the way they were -- were 14 being taken out and placed on the ground. 15 Q: And what sacred items are you 16 referring to, sir? 17 A: It's -- it's hard for me to -- 18 because it was so long ago. I -- I can remember seeing 19 some, like, pouches and I just can't totally recall the 20 exact items, but I know -- I remember -- I do remember at 21 the time I was -- wasn't happy with, because it just 22 shows that unawareness that the OPPs have towards some of 23 our people and our beliefs and our traditions and I was 24 very displeased. 25 Q: The police notes indicate that there

1 was bags of food found in the van, that there was 2 clothing found in the van and that there was bunch of 3 electronic equipment which is variously described as 4 scanning equipment or radio equipment, other equipment of 5 that kind. 6 Did you see that kind of equipment being 7 taken out of the van? 8 A: I never seen any equipment of that 9 nature. 10 Q: Did you see clothing or food being 11 taken out of the van? 12 A: Yes, I seen articles to that. 13 Q: And would -- food or clothing, were 14 they sacred items. 15 A: No. 16 Q: No. Sir, in your notes that we 17 looked at, you referred to the fact that it was the -- 18 there was a TRU team present on -- at that incident? 19 A: Yes. 20 Q: I anticipate we're going to hear 21 evidence from the police officers that it was not a TRU 22 team, but an ERT team at the incident. 23 Are you familiar with the distinction 24 between the TRU and the ERT team? 25 A: When I first came on the Force, we

1 had the TRU team and over the period of the years, they 2 kept changing the names of the different teams that they 3 did have. 4 Q: But this is in 1995 and shortly after 5 you terminated your employment with the Force, isn't it? 6 A: Just shortly before this incident. 7 Q: You terminated shortly before this 8 incident? 9 A: Yes. 10 Q: So -- well, in any event, what -- do 11 you have some reason for thinking it was the TRU team or 12 are we just sort of uncertain about the names here or is 13 -- or do you think in your understanding that there was a 14 significant difference as you understood it in 1995 15 between a TRU team and an ERT team? 16 A: I took it as to be them as being the 17 TRU team. 18 Q: Thank you, sir. You'll be glad to 19 know I only have one (1) more question for you and that 20 is that, as an experienced and trained police officer, in 21 your opinion is it possible that you could mistake the 22 sound of firecrackers for the sound of automatic gunfire? 23 A: As a trained police officer and as a 24 -- a -- I am a hunter, I can distinctly tell the 25 difference between a firecracker and a rifle going off.

1 Q: Thank you, sir. Thank you for your 2 cooperation. Those are all my questions. 3 COMMISSIONER SIDNEY LINDEN: Thank you 4 very much, Mr. McGilp. 5 MR. IAN MCGILP: Thank you, Mr. 6 Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Thank you 8 very much. 9 MR. DONALD WORME: I don't have an re- 10 examine, Mr. Commissioner, and I don't know whether there 11 are any other parties. I think those are all the parties 12 that were indicated. 13 COMMISSIONER SIDNEY LINDEN: Is Mr. 14 Henderson... 15 MR. DONALD WORME: I believe that is it, 16 Mr. Commissioner. 17 COMMISSIONER SIDNEY LINDEN: Okay. 18 MR. DONALD WORME: So, on behalf of the 19 Commission, I'd like to extend my thanks to Mr. Ralf for 20 coming here today. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much, Mr. Ralf, for coming and giving us your 23 testimony. 24 THE WITNESS: Thank you. 25

1 (WITNESS STANDS DOWN) 2 3 COMMISSIONER SIDNEY LINDEN: Do you want 4 to call the next witness right now, Mr. -- 5 MR. DERRY MILLAR: Oh, yes -- 6 COMMISSIONER SIDNEY LINDEN: -- or do you 7 want to -- 8 MR. DERRY MILLAR: I -- 9 COMMISSIONER SIDNEY LINDEN: I see that-- 10 MR. DERRY MILLAR: The witness is 11 outside. 12 COMMISSIONER SIDNEY LINDEN: The Witness 13 is not in the room. Do you want to take a short break? 14 MR. DERRY MILLAR: No. 15 COMMISSIONER SIDNEY LINDEN: No? 16 MR. DERRY MILLAR: I'll go get them. 17 COMMISSIONER SIDNEY LINDEN: Okay. 18 19 (BRIEF PAUSE) 20 21 MR. DERRY MILLAR: The next witness is 22 Mr. Robert Bruce Watts. 23 COMMISSIONER SIDNEY LINDEN: Good 24 morning, Mr. Watts. 25 MR. ROBERT WATTS: Good morning.

1 THE REGISTRAR: Good morning, Mr. Watts. 2 MR. ROBERT WATTS: Good morning. 3 THE REGISTRAR: Do you prefer to swear on 4 the bible, affirm or use an alternate oath, sir. 5 MR. ROBERT WATTS: Affirm. 6 THE REGISTRAR: Very good, sir. 7 Please, state your name in full for us, 8 sir. 9 MR. ROBERT WATTS: Robert Bruce Watts. 10 THE REGISTRAR: Thank you. 11 12 ROBERT BRUCE WATTS, Affirmed 13 14 EXAMINATION-IN-CHIEF BY MR. DERRY MILLAR: 15 Q: Mr. Watts, I understand that you're 16 here pursuant to a summons that was issued by the 17 Commission? 18 A: I received a summons last night, but 19 I came forward voluntarily with information. 20 Q: And you came forward voluntarily, but 21 we also issued you a summons and we'll get to it later, 22 and you voluntarily disclosed the information except for 23 the name of the person who called you on the telephone? 24 A: That's correct. 25 Q: Now, before we get to that, can I

1 take you back. You were born on November 25th, 1957? 2 A: That's correct. 3 Q: And you're a resident of the Six 4 Nations First Nation in -- outside of Brantford? 5 A: That's correct. 6 Q: And from 19 -- May 1988 to September 7 1991, you were employed by the Union of Ontario Indians? 8 A: Yes, that's correct. 9 Q: And what were you doing, Mr. Watts, 10 with the Union of Ontario Indians? 11 A: I was the executive director of the 12 Union of Ontario Indians. 13 Q: Okay. And can you tell us a little 14 bit about what your duties entailed, what kinds of things 15 you did as executive director? 16 A: I was accountable to the Grand Chief 17 of the Union of Ontario Indians and the Board of 18 Directors. I was responsible for the day-to-day 19 operations of the Union of Ontario Indians and from time 20 to time was asked to assist with other assignments. 21 As I disclosed to you, there was some 22 blockades, railway blockades in northern Ontario that I 23 assisted in and during the Oka crisis, I organized and 24 participated in food -- food runs down to Oka and 25 Gunawage (phonetic).

1 Q: Okay. And from September 1991 to 2 June 1994, you were on an exchange from the Union of 3 Ontario Indians to the Ontario Government; is that 4 correct? 5 A: Yes, with the Ontario Native Affairs 6 Secretariat. 7 Q: And I'll come back to that in a 8 moment, but I'm going to move on for a moment. From June 9 1994 to March 1997, you were -- had a consulting firm, 10 Watts and Associates? 11 A: That's correct. 12 Q: And can you tell us what Watts and 13 Associates did? 14 A: As with most consulting firms, just 15 about anything to help pay the bills, but specifically, I 16 did a lot of marketing for an engineering firm out of 17 Montreal called SNC Lavalin, and worked on things like 18 personal policy issues. 19 I'd actually done some work with Kettle 20 and Stony Point with respect to their -- their personnel 21 policy; helped facilitate conferences and workshops and 22 was chief negotiator for the Government of BC on the 23 Clayoquot Sound co-management agreement. So, those types 24 of activities. 25 Q: And you've acted as a mediator, a

1 negotiator and policy and program developer over your 2 career with respect to aboriginal issues and other 3 issues? 4 A: That's correct. 5 Q: And I understand in 2000 you were a 6 Fulbright Scholar and a Fellow at Harvard Law School? 7 A: Yes, I was. 8 Q: And in 2001 you obtained a master's 9 degree in public administration from Harvard University? 10 A: That's correct. 11 Q: And you -- since January 2004 you've 12 been employed with the Assembly of First Nations as Chief 13 of Staff to the Grand Chief? 14 A: That is correct. 15 Q: And you're a friend of Chief Tom 16 Bressette from Kettle and Stony Point? 17 A: I hope so, yes. I consider Tom a 18 friend. 19 Q: And how long have you known Chief 20 Bressette? 21 A: I think it would probably go back to 22 the late '90s, when I worked with the Union of Ontario 23 Indians. He was a board of -- member of the Board of 24 Directors for the Union of Ontario Indians. 25 Q: The late '80s?

1 A: Yes. 2 Q: You said '90s, but I think you meant 3 the late '80s? 4 A: Late '80s, yes. 5 Q: And I understand that during the 6 course of your employment or as -- with the Ontario 7 Government, with ONAS, that -- can you tell us what your 8 duties were between September '91 to June '94? 9 A: I had varied duties. I was brought 10 in to work with -- with the Government of Ontario, again 11 through an interchange with the Union of Ontario Indians, 12 in anticipation of constitutional talks that were going 13 to be happening. So, as -- I was assigned the file 14 working on the -- what became the Charlottetown Accord. 15 So, a whole set of intergovernmental negotiations. 16 Other duties that I had, I was chief -- 17 chief negotiator for the Government of Ontario on the 18 Shoal Lake Watershed Management Agreement. I was asked 19 to go and do some work up at Shawanaga when Shawanaga 20 First Nation blockaded the road running through their 21 community, that the resident of Skerryvore used. 22 And just generally involved with a lot of 23 the intergovernmental issues that the Government of 24 Ontario was involved in with respect to Aboriginal 25 People.

1 Q: And during your tenure with the 2 Government and your work at the Ontario Native Affairs 3 Secretariate, did you sit on what I understand is 4 sometimes called the Blockade Committee or the 5 Interministerial Committee? 6 A: I wasn't a permanent member of that 7 committee but from time to time I sat on that committee. 8 Q: And can you tell us during the period 9 of time that you were employed, September 1991 to June 10 1994, what the purpose of the Blockade Committee was or 11 at least the purpose on the times you attended it? 12 A: I think the purpose was perhaps 13 several-fold, but at least to -- for the Committee to 14 come together from time to time to assess information 15 with respect to potential conflict between the Government 16 of Ontario and First Nations or other Aboriginal People. 17 And when there was actual conflict or 18 dispute between the Government of Ontario and First 19 Nations or other Aboriginal People, to assess that 20 information and to provide -- try to provide advice and a 21 way forward. 22 Q: And I take it from what you said that 23 there were representatives from different ministries, I 24 take it from the affected ministries? 25 A: Certainly from the affected

1 ministries. And then I think that there were some 2 ministries that were permanent members of -- of the 3 Committee. 4 Q: And the -- when you were working at 5 the Ontario Native Affairs Secretariate, who did you 6 report to? 7 A: I reported to Murray Coolican, who 8 was the Deputy Minister, and Michelle Fordice (phonetic), 9 who was the Assistant Deputy Minister. 10 Q: Thank you. Now, if I could take you 11 to September 6th, 1995, can you tell me what happened on 12 September 6th, 1995 with respect to Ipperwash Provincial 13 Park? 14 A: Well, late morning, I think it 15 was probably around eleven o'clock or so, I received a 16 phone call from -- from someone who works for the 17 Government of -- of Ontario who told me that there had 18 just been a meeting of the Blockade Committee and that 19 that person had been informed that at the Blockade 20 Committee a statement was made to get those f-ing Indians 21 out of the Park and use guns of you have to. 22 Immediately after the phone call, I phoned 23 Chief Tom Bressette to relay to him the information that 24 was -- I received. 25 Q: And the person who called you, did

1 the person -- that person tell you who had told the 2 person about the -- gave this information to the person? 3 A: As I recall, the person told me that 4 it was Julie Jai. 5 Q: And did the person advise you as to 6 who Julie Jay said had made the statement? 7 A: What I was told was that Deb Hutton 8 had made this statement. 9 Q: At the Blockade Committee? 10 A: That's correct. 11 Q: And did the person tell you why the 12 person was calling you? I take it to give you a warning? 13 A: I think certainly a warning. 14 Clearly, I think this person considered the information 15 to be serious enough that somebody should -- should know 16 about it. 17 Q: So, the information should be passed 18 on to somebody? 19 A: Yeah, she didn't direct me to pass it 20 on. 21 Q: But that's what you assumed by having 22 told the information, that the person was concerned and 23 wanted the information passed on? 24 A: That's correct. 25 Q: There's no other reason to call you

1 other than to alert you so you could alert others? 2 A: That's correct. 3 Q: And you then -- I think you said you 4 called Chief Tom Bressette and passed the information on 5 to him? 6 A: That's correct. 7 Q: And you understand or you 8 subsequently learned that Mr. -- Chief Bressette went on 9 the radio and spoke about the issue; and you didn't hear 10 that radio interview yourself, did you? 11 A: No, I did not. 12 Q: But someone called you later during 13 the day and talked about the interview? 14 A: Someone had told me that Chief -- 15 Chief Bressette had -- had been on the radio and had 16 alerted people. 17 Q: Now, up to now, you have refused to 18 disclose the name of the person who called you; is that 19 not correct? 20 A: That is correct. 21 Q: And I'm going to ask you to disclose 22 the name of the person who called you becau -- and before 23 doing so, Commissioner, Mr. James McDonald is here on 24 behalf of the person who called Mr. Watts and wishes to 25 make submissions before Mr. Watts answers the question

1 and I've advised Mr. Watts that if he still refuses to 2 answer the question I'm going to ask you to order him to 3 do so, but Mr. McDonald wanted to make some submissions. 4 COMMISSIONER SIDNEY LINDEN: Yes. Mr. 5 McDonald...? 6 7 SUBMISSION BY MR. JAMES K. MCDONALD: 8 MR. JAMES K. MCDONALD: Yes, Mr. 9 Commissioner, thank you for hearing from me. I have been 10 retained by the person who made the phone call to Mr. 11 Watts. I became aware of the situation and was just 12 retained on Friday and on the weekend when the news made 13 the newspaper about Mr. Watts coming to testify and I 14 communicated on Sunday night and yesterday with Mr. 15 Millar. 16 And I gave Mr. Millar -- I told Mr. Millar 17 that I had been retained by this person and advised Mr. 18 Millar in general what the person intended to say and 19 also the reasons why we were going to come before this 20 Inquiry and ask that Mr. Watts not be asked to -- not be 21 compelled to disclose the name of the person who -- who 22 made the telephone call to him. 23 As I have advised Mr. Millar and as I 24 advise you, and as Mr. Watts has disclosed, the person at 25 the time the telephone call was made, was an employee of

1 the Government of Ontario, the person continues to be an 2 employee of the Government of Ontario. 3 I can advise you that the person was not 4 at a meeting of the cabinet; that the person was not at 5 the meeting of the Blockade Committee that Mr. Watts has 6 referred to; that the information that was given to Mr. 7 Watts by the person was not first hand information that 8 the -- that the person overheard; that it is, at best, 9 and I think that Mr. Downard referred to this in a 10 newspaper second or third hand grade level of 11 information. 12 The position that I put before you is that 13 there would be and potentially could be significant 14 damage to the person if the person's name is disclosed in 15 the course of these Proceedings. 16 The person continues to be employed by the 17 government of Ontario; the person is concerned that the 18 person's employment may be in jeopardy if the person's 19 name is disclosed. The person is also concerned that the 20 person's credibility and the confidence of others in the 21 person and in the course of the person's employment could 22 be lessened and could cause considerable difficulty to 23 the person in the course of the person's employment. 24 I understand and I don't -- don't pretend 25 to know as much about the goings on of this Inquiry as

1 others who are here, but it is my understanding from 2 reading the material that has been led in evidence that 3 the person who Mr. Watts is referring to, is of interest 4 to this Inquiry as I suppose it could be called one (1) 5 link in a chain that -- that parties to this Inquiry have 6 an interest in drawing between the former Premier of 7 Ontario and the incidents that occurred -- the incident 8 that occurred at Ipperwash that evening, and that it 9 would be for that reason that the Inquiry would be 10 interested in hearing from that person. 11 However, I submit before you that the 12 person is a -- does not have, as I've indicated, any 13 first hand information to provide to this Inquiry; that 14 Mr. Watts has set out his recollection of the information 15 that was given to him; there are others who will be 16 called as I understand it, later in the course of this 17 Inquiry who will be have been at the meeting of the 18 Blockade Committee, would have been at any meeting of the 19 cabinet that might be material to this Inquiry. 20 I understand that Ms. Jai who has been 21 referred to by Mr. Watts is -- I made a mistake in this, 22 but it's my understanding that Ms. Jai is on the witness 23 list and as a person who -- who -- who it is intended to 24 be called before this Inquiry. 25 And so the submission that I make to you

1 is that, at this point in the -- in the course of the 2 Inquiry, the evidence that could be given by the person I 3 represent is evidence that may or may not prove to be 4 material in light of evidence that may or may not be 5 given later in the proceedings by those persons who have 6 had -- were involved in the meetings of the Blockade 7 Committee, were involved in the meetings of the cabinet, 8 were referred to in evidence by Mr. -- by Mr. Watts. 9 And so I ask at this time, that Mr. Watts 10 not be compelled to disclose the name of the person and 11 that the name of the -- it may be that the Commissioner, 12 you decide to defer compelling him to name the person who 13 made that call to him until later in the Inquiry, if it 14 becomes necessary for him to make that disclosure in 15 terms -- for the purposes of the Inquiry to enable the 16 Inquiry to conduct a full and fair investigation of the 17 issues that have -- it has been charged with issuing -- 18 with investigating. 19 I do note, Mr. Commissioner, that in the 20 rules of procedure and practice of the Commission and 21 particular the rules from Rule 40 to Rule 47; there are 22 rules that provide for confidentiality. 23 It's my understanding that thus far those 24 rules have not been implemented or not been used by this 25 Inquiry, but they do establish, in my respectful

1 submission, some form of guidance to the Commissioner and 2 that they to do form -- if the Commissioner does require 3 Mr. Watts to disclose the name, some form of protection 4 for that person. 5 I'm -- I'm asking that the -- Mr. Watts 6 not be compelled at this time to name the person at all. 7 I submit that, in -- in effect, it is something analogous 8 to an informant's privilege or whistle blower type of 9 situation. 10 I recognize that it does not meet all of 11 tests that would be established in a Court for the -- for 12 a privilege to be afforded, whether it be Informant's 13 privilege or other form of privilege, but I submit that 14 it is, with respect, a communication, a confidential 15 communication that this -- this Inquiry ought to honour. 16 If you do compel Mr. Watts to name the 17 person I would ask that in accordance with Rule 42 of the 18 Rules of Practise, that the person be identified by non- 19 identifying initials; and that the -- that the media not 20 -- the media be directed that it not disclose the name of 21 the person and that it not avoid any reference that might 22 reveal the identity of the person. 23 And there -- there is concern that Mr. 24 Watts, in his evidence, if he's asked questions about who 25 made the communication to him and who that person might

1 be, that he may be compelled, in answering those 2 questions to make references to the individual that would 3 indirectly disclose the -- the -- name of the person. 4 I would also ask that in the course of 5 this, if the person is called as a Witness, that the 6 person then be granted the protections that are afforded 7 in Rules 42 and 43 that the person be named as a -- be 8 named -- be granted, I think it's called in the rules of 9 confidentiality. 10 I would ask that the person not be called 11 as witness until later on in the Proceedings until it is 12 determined that the person's evidence is material and 13 that it becomes -- if it may become necessary to call the 14 person. 15 I suggest as I suggested earlier that it 16 may not be necessary to call the person, even if the 17 person is identified, if those persons who are otherwise 18 going to be testifying before this Inquiry confirm the 19 information that Mr. Watts has -- has testified to or who 20 have confirmed information of that type. 21 I would also ask that if the person 22 testify -- be called to testify later in these 23 Proceedings that the person testify in-camera, but it may 24 be premature to address those issues at this time. 25 At -- at this time it seems to me that the

1 issue that's before you is whether Mr. Watts should be 2 compelled to disclose the name of the person and if he is 3 -- if you determine that he is compelled to disclose the 4 name of the person that there be conditions attached to 5 that disclosure such that the person cannot be publicly 6 identified in the media or elsewhere. 7 And the basis, as I've indicated -- I 8 don't intend to repeat myself, but the basis for this is 9 the concern of the person to the person's continued 10 employment with the Government of Ontario in terms of the 11 disclosure of the person's name and the circumstances 12 under which the disclosure -- the communication to Mr. 13 Watts occurred. 14 Subject to any questions that you might 15 have, Mr. Commissioner, I think that those conclude my 16 submissions. 17 COMMISSIONER SIDNEY LINDEN: Thank you 18 very much. I do have some questions, but I think I'll 19 reserve them until I've heard from my Counsel and from 20 anybody else who wishes -- 21 MR. JAMES K. MCDONALD: Thank you. 22 COMMISSIONER SIDNEY LINDEN: -- to speak 23 on this issue. I think I'll reserve my questions, they 24 may be answered in the course of the other people's 25 submissions.

1 MR. JAMES K. MCDONALD: May -- may I have 2 an opportunity to respond to -- 3 COMMISSIONER SIDNEY LINDEN: I think that 4 would be reasonable. 5 MR. JAMES K. MCDONALD: -- submissions 6 that are made by others? 7 COMMISSIONER SIDNEY LINDEN: After we've 8 heard from other Counsel we'll ask you to respond. 9 MR. JAMES K. MCDONALD: Thank you, Mr. 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: And if I 12 still have questions, I'll ask them then. Thank you 13 MR. DERRY MILLAR: Now, I -- I understand 14 that there may be some of our number who wish to address 15 this issue and I'm in your hands, Commissioner, perhaps 16 it might be better for My Friends who wish to address the 17 issue first and then I can address you on the issue and 18 Mr. McDonald can as well address you on the issue, but I 19 know Mr. Klippenstein has some comments. I take it Mr. 20 Rosenthal has some comments. Mr. Downard has some 21 comments. 22 COMMISSIONER SIDNEY LINDEN: Anybody 23 else? That's Mr. Klippenstein, Mr. Rosenthal, Mr. 24 Downard -- 25 MR. DERRY MILLAR: Mr. Roebuck --

1 COMMISSIONER SIDNEY LINDEN: Ms. Twohig. 2 Yes, so there's a number of people. I think we should 3 give all of the parties who wish to speak to this, an 4 opportunity to do so. 5 MR. DERRY MILLAR: And just for the 6 record, as well, and Ms. Twohig wishes to address it -- 7 COMMISSIONER SIDNEY LINDEN: Yes, no, I 8 understand. 9 MR. DERRY MILLAR: And Mr. Henderson is - 10 - acts for Mr. Watts as his Counsel with respect to being 11 a witness and -- 12 COMMISSIONER SIDNEY LINDEN: Do you have 13 a submission on this, Mr. Henderson? You may have or you 14 don't or you do? 15 MR. WILLIAM HENDERSON: I prefer to say I 16 may have at this point, Commissioner, and in due course 17 I'd -- I would request an opportunity. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Mr. Henderson. 20 MR. DERRY MILLAR: Perhaps what I'll do, 21 is simply outline briefly now, the position of the -- of 22 Commission Counsel. 23 Firstly, Mr. Watts should be ordered to 24 provide the name of the person who called him. The name 25 of the person is relevant to the work of the Inquiry,

1 that the question is a proper question. 2 The person who called Mr. Watts wanted to 3 warn him so that he could warn others about, we had 4 heard. The only purpose of the call was to pass on 5 information. 6 The informed was passed on to Chief 7 Bressette who used it in his radio interview and passed 8 it on to others. We have heard that Chief Bressette's 9 evidence that he blames Mr. Harris for what went on, not 10 only did he talk about this in the warning in the radio 11 interview but in the conversations that he had, you'll 12 recall, with Jeremiah George and Cecil Bernard George's 13 sister and wife on the beach. 14 Mr. -- Chief Bressette blamed Mr. Harris 15 in his conversations with Bonnie Bressette, his 16 conversations after the conference call. We -- we have a 17 transcript of a call that he had with Mr. Mercredi and 18 Mr. Peters and others where, again, he blamed Mr. Harris. 19 The allegation that, Mr. Harris, as 20 Premier, made the statement is a serious charge against 21 Mr. -- Mr. Harris. The issue of political direction of 22 the police is one (1) of the central issues in this 23 Inquiry. 24 The Inquiry has an obligation and a duty 25 to obtain all information and to disclose that

1 information in public; information that touches on or 2 leads to a better understanding of the issues before you 3 and, in this case, whether or not there was political 4 direction and what was said by leading members of the 5 Government, such as Mr. Harris. 6 What we are now doing is attempting to 7 trace this information back to the source. As one of my 8 colleagues said, this is a little bit like peeling an 9 onion; the -- if you go layer by layer until you get to 10 the core. 11 We will be, as Mr. McDonald said, calling 12 the people who were at the interministerial meetings on 13 September 5th and 6th. However, the information that the 14 caller had is an important check on that information that 15 we get from the people at the meetings and it seems to me 16 that the name should be revealed, the name should be 17 revealed now. 18 It's -- there is, as Mr. McDonald said, no 19 privilege. Clearly there's no informer privilege; that 20 simply applies to the police. 21 The test set out in Slavutych and Baker 22 for a confidential communication, the four (4) 23 requirements of that test cannot be met and Mr. -- Mr. 24 McDonald acknowledges that it can't be met with respect 25 to these comments.

1 Now, he says, and his concern and the 2 concern of his client, is for the -- the person's career 3 in the public service and the Commission in not unmindful 4 of that concern. 5 But, I do point out to you that even 6 though the events, and this call took place prior to -- 7 back in 1995, the policy of the government of Ontario is 8 -- is set out in the Public Inquiries Act, Section 9.1 9 and although the-- the effective date of this section is 10 June the 12th, 2000, in my view it -- it does set out the 11 policy of the Government. 12 And Subsection 1 says: 13 "No adverse employment action shall be 14 taken against any employee of any 15 person because the employee, acting in 16 good faith, has made representations as 17 a party or has disclosed information, 18 either in evidence or otherwise, to 19 Commission under this Act or to the 20 staff of a Commission, so that 21 providing information to a Commission 22 of Inquiry cannot have adverse 23 consequence." 24 Now, I understand Mr. McDonald would say, 25 Well, he -- the person made this disclosure back in 1995

56
  1  for all of the right reasons.  The person wanted to warn
  2  Mr. Watts so he could pass on the warning of the concern
  3  that the person had.  But, having said that, the --- and
  4  having acknowledged that it was done for all of the right
  5  reasons, it's still important to have the person's name.
  6                 Now, Section 41, I don't -- in my
  7  submission, doesn't apply.
  8                 COMMISSIONER SIDNEY LINDEN:   Section 41
  9  of our Rules.
 10                 MR. DERRY MILLAR:   Of our Rules.  Without
 11  -- it says:
 12                   "Without limiting the application of
 13                   Section 4 of the Public Inquiries Act,
 14                   the Commissioner may, in his discretion
 15                   and in appropriate circumstances,
 16                   conduct hearings in private when he is
 17                   of the opinion that matters involving
 18                   public security may be disclosed..."
 19                 That's clearly not the case here.
 20                   "..or of considering intimate,
 21                   financial, personal or other matters
 22                   that are of such a nature having regard
 23                   to the circumstances that the
 24                   desirability of avoiding disclosure
 25                   outweighs the desirability of the

57
  1                   hearing that the general principle that
  2                   the hearing should be open to the
  3                   public."
  4                 The name of this person who passed on this
  5  information does not meet any of these tests.  And if
  6  you're going to have a public inquiry, we're having a
  7  public inquiry, we're having witnesses in public, the
  8  whole purpose of a public inquiry is to hear evidence in
  9  public unless it meets the test, and the name -- either
 10  having this person -- it would not be appropriate to have
 11  this person give evidence that -- not in public or give -
 12  - under the confidentiality provisions of our rules.  It
 13  doesn't meet the test.
 14                 So, and my submission, notwithstanding the
 15  fact that I appreciate the concerns raised by Mr.
 16  McDonald and I can simply point out that the policy, the
 17  present policy of the Government as set out in Section
 18  9.1 of the Public Inquiries Act is that there should not
 19  be any retribution.  In my submission, this name should
 20  be disclosed.  The name should be disclosed now.
 21                 In order for the orderly functioning of
 22  this Inquiry, we have to deal with evidence when it comes
 23  up.  And we -- it would not be appropriate, in my
 24  submission, to hear all of the evidence of Mr. Watts
 25  except for the name and then come back sometime later.

1 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much. 3 MR. DERRY MILLAR: I think that in our 4 usual order we have Mr. Klippenstein, Mr. Rosenthal, then 5 Ms. Twohig, Mr. Downard -- 6 COMMISSIONER SIDNEY LINDEN: Well, we'll 7 go through it and see who -- 8 MR. DERRY MILLAR: Okay. So -- 9 COMMISSIONER SIDNEY LINDEN: Mr. 10 Klippenstein, you wanted -- we'll go through in the order 11 that we've been using all along. 12 MR. MURRAY KLIPPENSTEIN: Thank you, Mr. 13 Commissioner. 14 It has always been the strongly-felt 15 position of the Estate and Family of Dudley George that 16 the truth must come out. And the Estate and Family 17 supports and adopts much of the comments of -- of My 18 Friend Mr. Millar in -- in that regard. 19 However, we note that, as I understand Mr. 20 McDonald's submission, that he is asking that the 21 Commission simply defer compelling Mr. Watts to name the 22 Witness until later and if it becomes necessary. And Mr. 23 McDonald's suggestion is that the Witness has no useful 24 first-hand evidence. 25 The Family suggests that if this is

1 basically a deferral request and no more, based on the 2 fact that this Witness has no useful first-hand evidence, 3 or I shouldn't say the fact, I should say a credible 4 explanation and suggestion that this Witness has no 5 useful first-hand evidence, then the Estate and family 6 have no objection to the request at this particular time, 7 framed as simply a deferral subject to the right of the 8 Commission and of the Estate and family to request this 9 information in the future if it would appear useful. 10 At the same time, the family are very 11 concerned that this not become the first of a series of 12 requests by various witnesses to be excused from 13 providing evidence to the Commission and do not accept 14 that the concerns of the Witness about possible career 15 impacts should get in the way of the Commission's truth 16 finding exercise. And so the Commission -- the -- the 17 Estate and family do not object to a simple deferral. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Mr. Klippenstein. 20 Mr. Rosenthal...? 21 MR. PETER ROSENTHAL: Thank you. Good 22 morning, Mr. Commissioner. 23 COMMISSIONER SIDNEY LINDEN: Good 24 morning. 25 MR. PETER ROSENTHAL: As Mr. McDonald has

1 stated on behalf of his Client, it appears that it's a 2 whistle blower kind of situation. And from the 3 surrounding circumstances, it appears that his Client 4 blew the whistle in an altruistic manner and if possible 5 it would be nice to respect that person's situation and 6 confidentiality; whether or not it's possible should 7 depend upon whether that person has material evidence to 8 give. 9 There is no privilege in this circumstance 10 in law as we know, so if that person really had material 11 evidence to give, there would be no alternative but to -- 12 compromising that person's personal situation in order to 13 get that evidence. 14 However, Mr. Commissioner, the situation 15 appears to be the following: Mr. Watts has told us 16 something about and, presumably, will tell us more about 17 the information that he received from Mr. McDonald's 18 Client. Ms. Jai is allegedly the source of that 19 information to Mr. McDonald's client. She will be coming 20 as a witness. 21 If she tells us that the information that 22 she transmitted to Mr. or Mrs. X, let's say, was the same 23 information that Mr. Watts tells us he transmitted to Mr. 24 Bressette, then Mr. X has no useful evidence whatsoever 25 to give to this Inquiry.

1 COMMISSIONER SIDNEY LINDEN: What if it's 2 different? 3 MR. PETER ROSENTHAL: If it's different, 4 then he does. 5 COMMISSIONER SIDNEY LINDEN: How do we 6 know? 7 MR. PETER ROSENTHAL: And that's why, 8 sir, the request to Mr. McDonald to defer this question 9 is very appropriate. 10 COMMISSIONER SIDNEY LINDEN: Okay. 11 MR. PETER ROSENTHAL: If we -- if it does 12 turn out to be different, then we have to find out what 13 happened in that chain and it does become relevant. But, 14 if it turns out to be exactly the same, it doesn't become 15 relevant. 16 And I would suggest to you that calling 17 Mr. X or Mrs. X could be a diversion, in fact. Suppose - 18 - we're ten (10) years after these events and different 19 people have different recollections, undoubtedly, of the 20 details of any conversation. 21 Suppose, for example, it turns out that 22 Ms. Jai and Mr. Watts give essentially the same details 23 of the conversation, but Mr. and Mrs. X give a different 24 description of it. Then we're down to a whole other -- 25 it's not -- it's not a layer of the same onion, to use

1 Mr. Millar's analogy. It's -- we're -- we're peeling 2 some other fruit. 3 And if -- if it is an onion analogy, if we 4 have one (1) layer exposed by Mr. Watts and then we can 5 go to the core directly, why not go to the core. 6 So, I would respectfully submit that Mr. 7 McDonald's argument that in the circumstances the naming 8 and the potential calling of this witness should be 9 deferred to see if it's necessary is entirely reasonable. 10 COMMISSIONER SIDNEY LINDEN: Thank you. 11 MR. PETER ROSENTHAL: Subject to any 12 questions, that would be my submission, sir. 13 COMMISSIONER SIDNEY LINDEN: Thank you, 14 Mr. Rosenthal. I know that Kim Twohig wants to. 15 Mr. Scullion...? 16 MR. KEVIN SCULLION: We should stand up 17 and just indicate our position. We're in support of 18 Commission Counsel's approach to this matter. It's a 19 question of full disclosure and this information provides 20 an important check on whatever evidence Ms. Jai is going 21 to provide to the Commission. 22 It's very difficult to be dealing with it 23 in the abstract and, of course, it -- it depends -- it 24 fully depends on what Ms. Jai has to say. If it's simply 25 a repeat of what Mr. Watt has indicated to us she's going

1 to say, then that linkage doesn't become as important, 2 but if she doesn't it's -- it's crucial. 3 So, we are in support of Commission's 4 approach. And there's obviously a question of timing. 5 COMMISSIONER SIDNEY LINDEN: Thank you, 6 Mr. Scullion. 7 I guess Ms. Twohig...? 8 MR. DERRY MILLAR: No, Mr. Horner. 9 COMMISSIONER SIDNEY LINDEN: Oh, I'm 10 sorry. 11 The Chiefs of Ontario. Yes, sir...? 12 MR. MATTHEW HORNER: Thank you, Mr. 13 Commissioner. Mr. Commissioner, the Chiefs of Ontario 14 support Commission Counsel's approach to this. 15 And on -- I think the -- the issue of 16 deferral, our view is that as has been expressed by 17 Commission Counsel and yourself on numerous occasions, 18 this is -- the Inquiry is a truth finding process and 19 it's an investigative process and if Commission Counsel 20 feels that this is the appropriate time to -- to -- that 21 they require for their investigation to get this 22 information out, then that -- then we would support that 23 approach. 24 It is very difficult to talk in the 25 abstract about whether the -- whether Mr. and Mrs. X's

1 information will be -- will require them to be called as 2 witnesses, but in our view, regardless of the -- the 3 coinciding of the information given by Mr. X and that 4 given by Ms. Jai in any future, theoretical examination, 5 there will still be issues of credibility that will be -- 6 that will be relevant regardless of -- of those answers, 7 regardless of what Ms. Jay's testimony is. 8 If it coincides with this, then there may 9 be others at the meeting who disagree with that -- with 10 Mrs. Jai's and so it will go to credibility and therefore 11 the Chiefs of Ontario do support Commission Counsel's 12 approach in this matter. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much. 15 MR. MATTHEW HORNER: Thank you. 16 COMMISSIONER SIDNEY LINDEN: Ms. 17 Twohig...? Oh, I'm sorry. You wish to address this as 18 well, Mr. Eyolfson? 19 MR. BRIAN EYOLFSON: Yes, Mr. 20 Commissioner. On behalf of Aboriginal Legal Services, 21 I'd like to indicate our support for Commission Counsel's 22 position. 23 I -- I don't think I have anything to add 24 that hasn't already been stated, so we adopt the 25 submissions of Commissioner Counsel and Mr. Horner on

1 behalf of the Chiefs of Ontario. Thank you. 2 COMMISSIONER SIDNEY LINDEN: Thank you. 3 Now, Ms. Twohig...? 4 MS. KIM TWOHIG: Thank you, Mr. 5 Commissioner. I was just going to ask, if I might have a 6 few minutes to make a phone call to get some 7 instructions. I did not know until this morning what 8 positions would be taken by other parties at the Inquiry, 9 and I think it would be appropriate for me to seek 10 further instructions. 11 We haven't had a morning break yet. I'm 12 content to wait until the others have made their 13 submissions, if that would -- 14 COMMISSIONER SIDNEY LINDEN: I think -- 15 MS. KIM TWOHIG: -- be appropriate. 16 COMMISSIONER SIDNEY LINDEN: -- I think 17 that would be a way to proceed. We'll hear from -- 18 MS. KIM TWOHIG: Thank you. 19 COMMISSIONER SIDNEY LINDEN: Unless 20 you've got other ideas, Mr. Millar? 21 MR. DERRY MILLAR: No, no, no -- 22 COMMISSIONER SIDNEY LINDEN: I think 23 that -- 24 MR. DERRY MILLAR: -- I think that 25 perhaps it would be better if we listened to everyone --

1 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DERRY MILLAR: -- and then -- 3 COMMISSIONER SIDNEY LINDEN: And then 4 have a break -- 5 MR. DERRY MILLAR: -- we could -- 6 COMMISSIONER SIDNEY LINDEN: -- and give 7 you an opportunity and then call on you. That's fine. 8 Who else has a submission on this? I know 9 Mr. Downard does but does the OPP? 10 To follow our usual order, Mr. Downard, 11 you're after the OPPA. 12 13 (BRIEF PAUSE) 14 15 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 16 Tuck-Jackson...? 17 MS. ANDREA TUCK-JACKSON: Yes, Mr. 18 Commissioner. I can simply indicate that the OPP takes 19 no position on this issue. Thank you, sir. 20 COMMISSIONER SIDNEY LINDEN: Thank you 21 very much. Does the OPPA take any position or -- 22 MR. IAN McGILP: We take no position. 23 COMMISSIONER SIDNEY LINDEN: No position. 24 Now, I think we hear from Mr. Downard. 25

1 (BRIEF PAUSE) 2 3 MR. PETER DOWNARD: Sir, from Mr. Harris, 4 our submission is that the Witness should be ordered to 5 answer the question. 6 This is an allegation that has been made 7 against our client for over a decade and it has been used 8 for, among other purposes, personal and political attacks 9 upon him. 10 And as we peel back this onion we are 11 finding in this Inquiry that the quality of this 12 information is getting poorer and poorer. 13 We started with Chief Bressette saying 14 that a person at the meeting of the Blockade Committee 15 called Mr. Watts who called him. 16 Then we find Mr. Watts saying that a 17 person at a meeting told Mr. and Ms. X who told Mr. Watts 18 who called the Chief. 19 Now, Mr. McDonald says that Mr. and Ms. X 20 was not at the -- was -- was not informed by a person at 21 the meeting. So this -- the quality of this information 22 is vanishing into the ether, especially for such a 23 serious charge. It's -- it's very disturbing. 24 And -- and also with respect to Mr. 25 Rosenthal's submission, it's clear from Mr. McDonald's

1 submission that Ms. -- Ms. Jai is not the source for X 2 because X's source was not someone at the meeting. 3 So, I understand the submission that is 4 being made regarding a -- a deferral. However, in our 5 submission, this is a serious matter, it's important to 6 our client, and our client wants to run this matter to 7 ground now. It's hounded him for a long time. It's 8 been, in his submission, and absolutely false allegation. 9 And it is now, with the -- this Inquiry coming forward in 10 the media again, we want it exposed for what it is now. 11 And with respect to prejudice, I adopt the 12 submissions of Mr. Millar. 13 COMMISSIONER SIDNEY LINDEN: When this 14 evidence first came up we made it very clear that it 15 wasn't being advanced for its truth and -- and there were 16 all kinds of qualifiers on it at the time, but -- 17 MR. PETER DOWNARD: Oh, absolutely. The 18 -- the information has -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. PETER DOWNARD: -- we have no 21 objection to the manner in which the information has been 22 brought forward. 23 COMMISSIONER SIDNEY LINDEN: I appreciate 24 your submission, Mr. Downard. 25 Mr. O'Marra...?

1 MR. AL O'MARRA: Mr. Commissioner, the 2 Chief Coroner supports the position taken by your Counsel 3 for the reasons given. And my submissions are based on a 4 support of that position because of the -- the need to, 5 of course, protect the integrity of the process. 6 Is the identity of the caller relevant? I 7 would say certainly on the issue of credibility it is, as 8 to the accuracy and veracity of the commentary contrasted 9 to other evidence. As one of my colleagues has already 10 point out, it will provide a check that is -- is 11 necessary. 12 Is there a privilege or some confidential 13 relationship? Not based on Slavutych or Baker or the 14 Wigmore tests as we commonly understand them. 15 Is there an informant's privilege? There 16 is not. There is no evidence of any risk to the personal 17 integrity being the -- the life or well-being of the 18 caller. There may well be financial or career 19 embarrassment involved. But as your Counsel has pointed 20 out, there is legislative protection with respect to 21 that. 22 My submission to you, sir, would be it 23 would be contrary to the public aspect of the Inquiry and 24 the principles of accountability and transparency not to 25 make the order requested.

1 Those are my submissions, sir. 2 COMMISSIONER SIDNEY LINDEN: Thank you 3 very much. Any other submissions? 4 MR. DERRY MILLAR: Mr. Roebuck, I think, 5 on behalf of Ms. Hutton. 6 COMMISSIONER SIDNEY LINDEN: Oh. He's 7 welcome, on behalf of Ms. Deb Hutton. 8 Good morning, sir. 9 MR. DAVID ROEBUCK: Good morning, sir. 10 Ms. Perschy regrets she's unable to be here. 11 Mr. Commissioner, the decision on this 12 matter, in my submission, should be made on a principle 13 basis and not on a basis that is relevant only to the -- 14 the witness that is -- or the potential Witness X. The 15 issue of materiality has already been determined in the 16 way that the evidence has unfolded. 17 If the only issue were what occurred at 18 the Blockade Committee, what in fact was said, then 19 evidence which has already been led would be unnecessary, 20 immaterial. But all of these events, the -- the 21 telephone call of the Chief to the radio station, are 22 relevant to the -- to the broader tableau. This is not 23 events that occurred and the Commission has a justifiable 24 interest in -- in those events. 25 And, therefore, the -- the links in the

1 chain of this information is relevant. It's too late, in 2 my submission, for Mr. Rosenthal to say if Ms. Jai 3 confirms the statement it's -- it's irrelevant. 4 And, in any event, that -- that simply 5 creates procedural problems of a significant nature, 6 because the ability of Counsel, myself included, to 7 cross-examine the Witness, who's in the box, is 8 restricted by an order that protects the identity of the 9 source. It deprives us of a whole line of questioning on 10 the reasonable reliance upon -- upon the -- the 11 information that -- that's been passed along the chain. 12 The position for X -- a rather remarkable 13 situation, submissions being made in -- in the 14 circumstances, are entirely based upon a speculative 15 employment or reputational issue. I say it's 16 speculative, because if -- if that individual passed upon 17 -- passed on information which he or she had received in 18 good faith, then the -- the -- the idea that a decade 19 later governments would act punitively against such 20 individual, I say, is speculative in the extreme. 21 What is not speculative is the impact of 22 the evidence that's already before this -- this 23 Commission and that -- that evidence, as Mr. Downard has 24 pointed out, impacts upon other individuals. There are 25 reputational interests involved. When X passed on the

1 information, X didn't have to say, My source was Miss 2 Jai, but X did so, and that puts Miss Jai's reputation at 3 issue. X didn't have to say, Miss Jai sourced the 4 information to Miss Hutton, but that puts Miss Hutton's 5 reputation at issue. 6 Those are not speculative issues, those 7 are real issues, and so in my respectful submission, an 8 order of confidentiality would prefer speculative issues 9 of reputation or employment to the real issue -- real and 10 apparent issues -- interests of people who've been given 11 standing because of the impact of statements that have 12 been made. The truth should come out; this is the only 13 opportunity for the truth to come out. 14 The -- the position in my respectful 15 submission is not a principle position and should be 16 rejected. The evidence should be before you and should 17 be decided on the basis of all of the evidence. Thank 18 you, Mr. Commissioner. 19 COMMISSIONER SIDNEY LINDEN: Thank you 20 very much. This would be the -- 21 MR. DERRY MILLAR: Now, perhaps what we 22 should do is take -- 23 MR. JAMES K. MCDONALD: I just wanted to 24 make one (1) clarification that made -- Mr. Downard 25 suggested that I had that the Witness' evidence would be

1 that -- that the person's evidence would be that the 2 comment didn't come from somebody who was at the meeting. 3 I don't believe that I said that in my -- 4 in my submissions to you and I don't know if that is 5 material to any of the other submissions that have been 6 made, but I didn't want that to be on the record -- 7 COMMISSIONER SIDNEY LINDEN: Thank you. 8 MR. DERRY MILLAR: Perhaps what we could 9 do is have short break while Ms. Twohig gets her 10 instructions. Have the morning break, actually, but I 11 wanted to just raise one (1) issue. 12 The -- Mr. Watts refuses to give us the 13 name and the only way that we're going to get the name is 14 here today, unless something else happens in the next few 15 minutes. The -- it's -- so we cannot -- we don't know 16 the name, we can't talk to the person, we don't know what 17 the person's going to say and this is our opportunity to 18 get the name. 19 Up to now, Mr. Watts has, for the reasons 20 he stated, simply refused to give us the name and because 21 of what he had said to the person. I'm -- I'm not being 22 critical of Mr. Watts for that, but it's -- it's the 23 fact. As Chief Bressette said, he initially did, he then 24 called Mr. Watts who said, Fine, disclose my name and 25 Chief Bressette did and -- but this is the only

1 opportunity we get to get the name. 2 So, perhaps we could have the morning 3 break and hear from Ms. Twohig and then Mr. McDonald if 4 he has anything else. 5 THE REGISTRAR: This Inquiry will recess 6 for fifteen (15) minutes. 7 8 --- Upon recessing at 10:31 a.m. 9 --- Upon resuming at 10:47 a.m. 10 11 THE REGISTRAR: All rise, please. This 12 Inquiry is now resumed, please be seated. 13 MR. DERRY MILLAR: Commissioner, I didn't 14 realise this and I should have checked it before we came 15 in, but Ms. Twohig is not back so it -- 16 COMMISSIONER SIDNEY LINDEN: And she's 17 next? 18 MR. DERRY MILLAR: And she's next. What 19 we'll do is Mr. Downard wanted to make a brief comment 20 then -- but I think we should wait until Ms. Twohig comes 21 and then Ms. Twohig and then Mr. -- 22 COMMISSIONER SIDNEY LINDEN: McDonald. 23 MR. DERRY MILLAR: -- McDonald and then 24 Mr. Henderson may have something to say, as well, after 25 Mr. McDonald.

1 COMMISSIONER SIDNEY LINDEN: Okay. 2 MR. DERRY MILLAR: And then I'll -- 3 COMMISSIONER SIDNEY LINDEN: And then I 4 can hear from you at the end. 5 MR. DERRY MILLAR: But we should just 6 wait for Ms. Twohig. 7 COMMISSIONER SIDNEY LINDEN: Okay. 8 MR. DERRY MILLAR: Actually -- oh, no, 9 Ms. Freeborn is not here, either, so -- 10 COMMISSIONER SIDNEY LINDEN: No, they're 11 both not. 12 MR. DERRY MILLAR: -- I was going to 13 make -- 14 COMMISSIONER SIDNEY LINDEN: They're both 15 gone. 16 MR. DERRY MILLAR: -- an administrative 17 announcement here, but... 18 19 (BRIEF PAUSE) 20 21 MR. DERRY MILLAR: Perhaps, Commissioner, 22 you might want to just take another few minutes and we'll 23 come and get you when Ms. Twohig's back. I didn't think 24 about that. 25 COMMISSIONER SIDNEY LINDEN: I don't want

1 to walk out and then again everybody stand up again. 2 I'll just sit here. 3 MR. DERRY MILLAR: Okay, okay. Thank 4 you. 5 6 (BRIEF PAUSE) 7 8 COMMISSIONER SIDNEY LINDEN: How many 9 times does everybody have to stand up in this Inquiry so 10 far? 11 12 (BRIEF PAUSE) 13 14 MR. DERRY MILLAR: Perhaps what I could 15 just do in the meantime is, we've distributed this 16 morning some Documents, 7000572, 573 and 576 that are 17 documents that are referred to, I believe, other than Mr. 18 Elijah's list or Mr. Antone's list. 19 We will have this afternoon, Volume XXV of 20 the CDs that I'd asked to have Purolated -- sent by 21 Purolator courier down here and on one of the -- the -- I 22 don't know exactly when the Purolator is going to arrive. 23 When it arrives, I have copies for most 24 everybody. Some of the copies were sent out yesterday to 25 the -- some individual parties and what we'll have to do

1 is try to make copies. 2 But there won't be one for Mr. Strosberg, 3 but he'll get it today in his office. Mr. Nash, he'll 4 get it today in his office. 5 Mr. Jonathon George, that we have one for 6 Mr. Henderson. Mr. Andy Orkin's has gone out in the 7 mail. Mr. Sulman and Mr. Ross', but we'll make sure that 8 those who are here we'll try to make copies, but. 9 COMMISSIONER SIDNEY LINDEN: Mr. Millar, 10 I understand we're asking everybody to stay behind for a 11 few minutes tomorrow. Do you want to say something about 12 that, or not? 13 MR. DERRY MILLAR: Perhaps -- tomorrow 14 afternoon, depending on when we finish, we would like 15 everyone to just, if you could, stay around for a few 16 minutes, including members of the media and so... 17 COMMISSIONER SIDNEY LINDEN: Everybody's 18 wondering now. Something celebratory and social, not 19 serious. 20 MR. DERRY MILLAR: Yes. It's a -- that's 21 right, it's a celebratory -- as you say, a celebratory 22 and social item. 23 COMMISSIONER SIDNEY LINDEN: I know we're 24 all sitting here, Ms. Twohig, but except for some 25 administrative announcement, we were waiting for you.

1 MS. KIM TWOHIG: Thank you, Mr. 2 Commissioner. I do apologize for being delayed a few 3 minutes. We were not able to get through, but... 4 The Province of Ontario supports the 5 position being taken by Commission Counsel in this 6 matter, although the Province does not necessarily agree 7 with the interpretation of Section 9 of the Public 8 Inquiries Act in the circumstances of this particular 9 case. 10 But in terms of the other legal 11 submissions made regarding the identity of this caller, 12 we do agree. Certainly the probative value of the 13 evidence far outweighs any interest that the witness may 14 have in keeping his or her identity confidential. 15 We understand that it's likely that this 16 person will be called as a witness. But, as we 17 understand it, only the caller, the caller's lawyer and 18 Mr. Watts know the identity of this person. 19 If I understand Mr. Watts' evidence 20 correctly, this caller did not attend the Inter- 21 ministerial Committee meeting and therefore could be one 22 (1) of hundreds of people. And unless the identity is 23 revealed, there's no guarantee that the person will be 24 called as a witness, and certainly no way that the person 25 could be effectively cross-examined unless that person

1 were to admit that they were the caller. 2 It's also important that all of the 3 evidence that's relevant to these issues come out at this 4 Inquiry. And this is really the only opportunity to 5 learn about this important evidence. And we do not 6 believe that there would be any benefit to deferring the 7 evidence being revealed. 8 Thank you, Mr. Commissioner. 9 COMMISSIONER SIDNEY LINDEN: Thank you 10 very much, Ms. Twohig. 11 Mr. McDonald...? 12 Why don't we call Mr. -- 13 MR. DERRY MILLAR: Excuse me. Mr. 14 Downard had a comment. 15 COMMISSIONER SIDNEY LINDEN: Oh, I'm 16 sorry. Mr. Downard had an administrative -- but as 17 between Mr. Henderson and Mr. McDonald, why don't we hear 18 from -- well, we'll deal with that in a minute. 19 Okay. Yes, Mr. Downard...? 20 MR. PETER DOWNARD: Just a short 21 clarification, Commissioner. I had taken it, from Mr. 22 McDonald's submission, that the information that X had 23 was not first-hand, that X's source was not at the 24 meeting in question. And Mr. Rosenthal, on the other 25 hand, had said that the source was Julie Jai, who was

1 someone at the meeting. 2 I've spoken to Mr. McDonald, and just to 3 assist you to clarify the layout of this slightly 4 complicated land, the truth is somewhere falling between 5 two (2) stools. Mr. McDonald says that X's source is -- 6 was someone who was at the meeting, who may or may not 7 have been Julie Jai. So, just to clarify the -- the 8 background, that's -- that's what I've been told. 9 COMMISSIONER SIDNEY LINDEN: Thank you. 10 Okay. Does Mr. McDonald come before Mr. Henderson? 11 MR. DERRY MILLAR: Well -- 12 COMMISSIONER SIDNEY LINDEN: I think Mr. 13 McDonald, as the Applicant, should come at -- 14 MR. DERRY MILLAR: Yeah. I guess you're 15 right. Mr. Henderson -- 16 COMMISSIONER SIDNEY LINDEN: I think we 17 should hear from Mr. Henderson first and then Mr. 18 McDonald and then Commission Counsel. 19 Yes, Mr. Henderson...? 20 MR. WILLIAM HENDERSON: Yes good morning, 21 sir. Of course, I represent Mr. Watts and I want you to 22 be familiar with his position in terms of the total 23 information before you on -- on Mr. McDonald's 24 application. 25 As you're aware, Mr. Watts gave an

1 undertaking of confidentiality more than nine (9) years 2 ago, and to this day he has observed it. And given his 3 druthers, as it were, he would continue to observe it. 4 He is, however, not setting that undertaking up against 5 your power to compel him to answer a question in relation 6 to that undertaking. 7 You have heard submissions today that Mr. 8 Watts does not oppose, in relation to the desires or 9 concerns of the person who spoke to him. In particular, 10 there has been some reasons given for deferral of the 11 identification. You, of course, will take your own view 12 of those, Commissioner. 13 If you wish to give positive or 14 affirmative consideration to some -- some form of 15 deferral, for reasons which you find persuasive, Mr. 16 Watts is, in that event, prepared to write the name on a 17 piece of paper, witnessed by Commission Counsel and 18 myself, have that sealed and -- and it will be available 19 to the Commission subject to submissions of others at 20 another time, but he will have discharged his duty and it 21 will not be necessary for the Commission to call upon him 22 again. 23 COMMISSIONER SIDNEY LINDEN: Thank you 24 very much. 25 MR. WILLIAM HENDERSON: So, that -- that

1 is his position, sir, and -- and he wanted you to know it 2 before rendering your decision. 3 COMMISSIONER SIDNEY LINDEN: That's fine. 4 Mr. McDonald...? 5 MR. JAMES K. MCDONALD: Yes, I -- I don't 6 really want to belabour the point, but with respect to 7 the person who disclosed, or how my client became aware 8 of the information, I only became aware yesterday that 9 Mr. Watts' evidence was going to be that it was told to 10 him as he recalls it that it was Julie Jai and I'm not in 11 a position today to say whether or not it was Julie Jai. 12 And that's what I wanted to -- to clarify 13 if I -- and hopefully that's of some assistance to you. 14 Just with response, I -- I note that the 15 Government of Ontario has taken the position that Section 16 9.1.1(a) of the Public Inquiries Act may or may not apply 17 in the way that the Commission Counsel has advised and I 18 similarly take that position that it may or may not apply 19 and it can't be relied upon as providing protection to -- 20 to the person whom I represent because it provides 21 protection for someone who gives evidence and makes a 22 disclosure, but not necessarily provides evidence -- 23 provides a protection to the person who made the 24 disclosure back in 1995 at the time that the disclosure 25 was made.

1 COMMISSIONER SIDNEY LINDEN: Do you have 2 any information, Mr. McDonald, that would suggest that 3 your client may be in some jeopardy with respect to their 4 employment or is it purely speculative? 5 MR. JAMES K. MCDONALD: Well, I -- I 6 guess, Mr. Commissioner, one would have to say it's 7 speculative to the extent that as of this moment, my 8 client's employer does not know that my client or the 9 person -- 10 COMMISSIONER SIDNEY LINDEN: No. 11 MR. JAMES K. MCDONALD: -- I'm 12 representing is a person. I can suggest that my -- I can 13 state that my -- that the person is in a position of -- 14 although it's non- managerial -- of some sensitivity that 15 might cause -- that the person is certainly concerned 16 that in light of the circumstances of her employment 17 situation, that it will cause -- cause problems in her 18 employment situation and I -- 19 COMMISSIONER SIDNEY LINDEN: You're 20 surmising that, though. I mean, I understand. 21 MR. JAMES K. MCDONALD: I'm 22 communicating to you the concern that the -- that the 23 person has communicated to me -- 24 COMMISSIONER SIDNEY LINDEN: Okay. 25 MR. JAMES K. MCDONALD: -- and -- and I

1 can suggest it's a very heartfelt -- 2 COMMISSIONER SIDNEY LINDEN: Okay. 3 MR. JAMES K. MCDONALD: -- concern and 4 it is related to the position that -- that the person 5 holds in the Government of Ontario in the -- 6 COMMISSIONER SIDNEY LINDEN: I understand 7 Julie Jai is an employee of the Provincial Government; is 8 that correct? 9 MR. JAMES K. MCDONALD: It's my 10 understanding -- 11 MR. DERRY MILLAR: She's with the Federal 12 Government now. 13 COMMISSIONER SIDNEY LINDEN: She's not at 14 the moment? 15 MR. DERRY MILLAR: No. 16 MR. JAMES K. MCDONALD: She's no longer 17 employed by the Provincial Government. 18 COMMISSIONER SIDNEY LINDEN: Nothing 19 having to do with this case or this incident then, I 20 expect? 21 MR. JAMES K. MCDONALD: I understand 22 that she's employed by the Department of Justice -- 23 COMMISSIONER SIDNEY LINDEN: Correct. 24 MR. JAMES K. MCDONALD: -- the Federal 25 Department of Justice.

1 COMMISSIONER SIDNEY LINDEN: All right, 2 that's fine. 3 MR. JAMES K. MCDONALD: So, the two (2) 4 other points that I -- I wanted to respond to, Mr. 5 Commissioner; firstly Mr. Roebuck says that this decision 6 on your part ought to be made on a principled manner. 7 And it is certainly a matter of principle, 8 in my respectful submission, to balance the benefit to 9 the -- to the -- the Inquiry and the benefit to you to 10 hearing the information as requested against the 11 potential prejudice to the person. And, again, what 12 we're talking about is information that may or may not 13 become material. 14 If Ms. Jai and others testify that the 15 comment was made by somebody, then somebody like my -- my 16 client who heard whatever -- he or she heard sort of 17 second hand and communicated it in that fashion to Mr. 18 Watts, is certainly not going to be material. There are 19 better people -- people in a better position to -- to 20 adduce that -- that evidence. 21 And Mr. -- Mr. Millar stated that Section 22 41 of your rules do not apply, but certainly Section 42 23 of your rules apply and Section 43 onward. And it's 24 Section 42 that provides that a witness may apply to the 25 Commissioner for measures aimed at protecting his or her

1 identify for a compelling reason as determined in the 2 sole discretion of the Commission. 3 And it is really under Section 42 and 4 thereafter that I'm asking that you exercise that 5 discretion in order to protect the identity of -- of the 6 person whom I -- whom I represent -- 7 COMMISSIONER SIDNEY LINDEN: The 8 operative words -- 9 MR. JAMES K. MCDONALD: -- for the 10 reasons -- 11 COMMISSIONER SIDNEY LINDEN: The 12 operative words in that section are compelling reason. 13 MR. JAMES K. MCDONALD: That's what -- 14 and I am suggesting to you, Mr. Commissioner, in 15 submitting before you that the compelling reason in this 16 case has two (2) aspects; one (1) is the potential harm 17 to the individual if they're -- if his or her name be 18 disclosed, and counter-balanced with that is the nature 19 of the -- of the information that she or he would be 20 asked to bring forth to this -- to this Inquiry if -- if 21 called upon to bring that forth. 22 And -- and I do also, with respect Mr. 23 Commissioner, ask that if you do make an Order that Mr. 24 Watts disclose the identity of the person, and obviously 25 I'm submitting that you ought not, but if you do make

1 that Order that at the same time you take into account 2 the aspects of forty-two (42) that enable you to take 3 different measures and -- and a gradation of measures in 4 order to protect the identity of the person. 5 I would ask that, as is contemplated by 6 Section 42, that the person's identity to be disclosed 7 only by way of non-identifying initials. And that also 8 that the media under Section 44 avoid references that 9 might reveal the identity of the witness. 10 Other aspects of Section -- of Rule -- of 11 Section 42 and thereafter can be dealt with if -- if you 12 make the ruling and if then becomes necessary for that 13 person to become a witness. 14 But, at this point in time, there are 15 those concerns in the event that you make the ruling that 16 we've asked you not to make. 17 Subject to any other questions that you 18 might have, Mr. Commissioner, I've no further 19 submissions. 20 COMMISSIONER SIDNEY LINDEN: Thank you, 21 Mr. McDonald. 22 Mr. Millar...? 23 MR. DERRY MILLAR: I'll be very brief. I 24 think that what I said with respect to the Public 25 Inquiries Act is that I didn't know if it applied,

1 because it started 2000, but simply I tho