11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 November 28th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) (np) 4 Donald Worme, Q. C ) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) (np) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) (np) Kettle Point & Stony 19 Jonathon George ) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 Nora Simpson ) (np) Student-at-law 5 6 Peter Downard ) The Honourable Michael 7 Bill Hourigan ) (np) Harris 8 Jennifer McAleer ) 9 10 Ian Smith ) (np) Robert Runciman 11 Alice Mrozek ) 12 13 Harvey T. Strosberg, Q.C.) Charles Harnick 14 Jacqueline Horvat ) 15 16 Douglas Sulman, Q.C. ) Marcel Beaubien 17 Mary Jane Moynahan ) (np) 18 Dave Jacklin ) (np) 19 Trevor Hinnegan ) 20 21 Mark Sandler ) Ontario Provincial 22 Andrea Tuck-Jackson ) (np) Ontario Provincial Police 23 Leslie Kaufman ) (np) 24 25
41 APPEARANCES (cont'd) 2 Ian Roland ) Ontario Provincial 3 Karen Jones ) (np) Police Association & 4 Debra Newell ) (np) K. Deane 5 Ian McGilp ) (np) 6 Annie Leeks ) (np) 7 Jennifer Gleitman ) (np) 8 Robyn Trask ) (np) 9 10 Julian Falconer ) Aboriginal Legal 11 Brian Eyolfson ) (np) Services of Toronto 12 Kimberly Murray ) (np) 13 Julian Roy ) (np) 14 Clem Nabigon ) (np) 15 Adriel Weaver ) (np) Student-at-Law 16 17 Al J.C. O'Marra ) (np) Office of the Chief 18 Robert Ash, Q.C. ) (np) Coroner 19 20 William Horton ) (np) Chiefs of Ontario 21 Matthew Horner ) 22 Kathleen Lickers ) (np) 23 24 25
51 APPEARANCES (cont'd) 2 Mark Fredrick ) (np) Christopher Hodgson 3 Craig Mills ) (np) 4 Megan Mackey ) 5 Erin Tully ) (np) 6 Peter Lauwers ) (np) 7 8 David Roebuck ) (np) Debbie Hutton 9 Anna Perschy ) 10 Melissa Panjer ) 11 Adam Goodman ) (np) 12 13 14 15 16 17 18 19 20 21 22 23 24 25
61 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 7 4 5 CHARLES HARNICK, Resumed: 6 7 Continued Examination-In-Chief by Mr. Donald Worme 8 8 Cross-Examination by Mr. Peter Downard 52 9 Cross-Examination by Ms. Alice Mrozek 70 10 Cross-Examination by Mr. Mark Sandler 71 11 Cross-Examination by Ms. Kim Twohig 82 12 Cross-Examination by Ms. Janet Clermont 92 13 Cross-Examination by Mr. Murray Klippenstein 99 14 Cross-Examination by Mr. Kevin Scullion 160 15 Cross-Examination by Mr. Julian Falconer 192 16 17 18 19 Certificate of Transcript 219 20 21 22 23 24 25
71 EXHIBITS 2 No. Description Page 3 P-975 Document Number 1011908. Minister's 4 Briefing Form re. New Information 5 regarding native burial site in 6 Ipperwash Prov. Park and transcribed 7 voicemail of Julie Jai (Exhibit P-695) 8 Sept. 13/95. 38 9 P-976 Document Number 1012435. ONAS House 10 Note for Charles Harnick re. Occupation 11 of Ipperwash Provincial Park, 12 Sept. 20/95. 43 13 P-977 Document Number 1012085. Minister's 14 Briefing Form re: Preparation for 15 Minister's meeting with Bud Wildman. 45 16 17 18 19 20 21 22 23 24 25
81 --- Upon commencing at 10:32 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 MR. DONALD WORME: Good morning, 7 Commissioner. 8 COMMISSIONER SIDNEY LINDEN: Good 9 morning, everybody. Good morning. 10 11 CHARLES HARNICK, Resumed 12 13 CONTINUED EXAMINATION-IN-CHIEF BY MR. DONALD WORME: 14 Q: Good morning, Mr. Harnick. Welcome 15 back. 16 A: Good morning. 17 Q: Mr. Harnick, just before we had 18 adjourned last day, one of the things I just wanted to 19 bring you back to is the early morning briefing that you 20 told us about, prior to the Cabinet meeting, with Deputy 21 Minister Larry Taman and Julie Jai. 22 Can you recall testifying about that? 23 A: Yes. 24 Q: I wonder if you could tell us, sir, 25 what independent recollection you may have of what your
91 instructions were? 2 A: Well, they -- they made 3 recommendation to me that we should seek an injunction as 4 soon as possible. And I agreed with that recommendation 5 on the basis of it having complied with the -- the 6 guidelines that were in front of me. 7 Q: And beyond agreeing with the 8 recommendation that was given to you, did you issue any 9 instruction that -- that you can recall today? 10 A: No, I did not. 11 Q: All right. I understand then that 12 the next moment would be your attendance at the Premier's 13 dining room for a meeting. 14 A: After the Cabinet meeting that's 15 correct. 16 Q: Pardon me, after the Cabinet meeting. 17 A: That's correct. 18 Q: I wonder how -- if you could just go 19 ahead and tell us about that. Tell us what you remember 20 about the -- the dining room meeting. 21 A: Okay. I remember leaving the Cabinet 22 Room and as always there were a number of people milling 23 about, and I -- I walked over towards the -- the dining 24 room. I may have stopped to talk to people. 25 When I got to the dining room, the --
101 there were people there in their places around the table. 2 And as I walked into the dining room, the Premier in a 3 loud voice said, I want the fucking Indians out of the 4 Park. 5 And I was, at that point I think just 6 taking my seat. I didn't hear who had spoken previously 7 to -- to evoke that comment. But then there was a 8 complete silence in the room. 9 And after that, the Premier broke the 10 silence in a very calm voice, indicating that once the 11 occupiers were able to get into the Park, he didn't 12 believe that there was any way that they could be removed 13 from the Park. 14 And, you know, his -- his demeanor 15 changed. He became quiet. 16 COMMISSIONER SIDNEY LINDEN: Do you have 17 an objection, Mr. Klippenstein? 18 MR. MURRAY KLIPPENSTEIN: I apologize, 19 Commissioner, but for the sake of the clarity of record, 20 the point of evidence that has just come out is something 21 that the parties received no notice of and it's, I 22 suggest, potentially very important. And clarity of the 23 record is important and I wonder if that point could be 24 repeated? 25 COMMISSIONER SIDNEY LINDEN: I think
111 we'll just carry on. Thank you, Mr. Klippenstein. It's 2 just important that we just hear this evidence and this 3 evidence is just coming out. 4 THE WITNESS: I think-- 5 COMMISSIONER SIDNEY LINDEN: Let's carry 6 on. 7 THE WITNESS: Certainly, my -- my 8 impression was that the Premier had said something, and - 9 - I -- I don't know what provoked it, in -- in anger. I 10 -- I believe that he knew what he said was -- was wrong. 11 There was a long pause. And the next 12 comment that the Premier made was the recognition of -- 13 of once the occupiers were in the Park, there was no way 14 that you could get them out. 15 And at that point Mr. Taman began to make 16 representations to the Premier about the merits of 17 seeking an injunction. I don't recall exactly what he 18 said. 19 And after a few minutes of discussion the 20 Premier agreed that we should seek an injunction and do 21 it as soon as possible. And I don't remember discussions 22 that other people had. And shortly thereafter the 23 meeting ended and I -- I was quite satisfied that we had 24 complied with the guidelines. 25 We'd complied with the procedure set out
121 in the guidelines. We had complied with a recommendation 2 that was within the parameters of the guidelines, and we 3 -- we had obtained the -- the consensus around the table 4 that we needed. And that's what I recall of the dining 5 room meeting. 6 7 CONTINUED BY MR. DONALD WORME: 8 Q: Thank you for that, Mr. Harnick. I 9 wonder if I could just take you back; if you could tell 10 us who it is that you recall being present at this 11 meeting in the Premier's dining room? 12 A: Of -- of the people that -- that I 13 knew and recognized, there was the Solicitor General and 14 the Deputy Solicitor General, and I believe Kathryn Hunt 15 who was the executive assistant. The -- there was the 16 Minister of Natural Resources, the Deputy Minister and 17 other people in -- around them that -- that I didn't know 18 at the time. 19 I believe Deb Hutton was there. The 20 Premier was there. I was there with Larry Taman. My 21 executive assistant, David Moran was seated behind me; he 22 wasn't at the table. 23 And that's -- there were other people 24 there, I suspect, but I wouldn't have known who they 25 were.
131 Q: All right. Did you know at that 2 point in time, one Barb Taylor, who was the acting 3 executive assistant to Dr. Todres? 4 A: I didn't know her. 5 Q: Were you familiar with Inspector Ron 6 Fox who was an OPP officer on secondment to the Solicitor 7 General's office? 8 A: I didn't know Ron Fox at the time. 9 Q: And can you tell us whether he was 10 present, to your recollection, in the Premier's dining 11 room meeting? 12 A: I -- I wouldn't have known. There 13 were people there that -- that I didn't know. And I 14 didn't know of Ron Fox at that time. 15 Q: And similarly, sir, Sergeant Scott 16 Patrick who was also on secondment to the Solicitor 17 General's department? 18 A: Same answer. I didn't know him and 19 wouldn't have recognized him or -- or Mr. Fox. 20 Q: All right. And just for clarity, you 21 mentioned earlier the Minister of Natural Resources, Mr. 22 Hodgson, was there, together with his EA. 23 A: Yes, his EA was there. I -- I mean, 24 I -- I assume. I can't particularly remember that. 25 Q: All right. I'm sorry, I think you
141 may have actually testified his Deputy Minister? 2 A: Yes, I believe Mr. Vrancart was 3 there. 4 Q: Thank you. And when you said the 5 Solicitor General, that would then -- that would be then- 6 Minister Runciman? 7 A: Yes. 8 Q: And his assistant. 9 A: Kathryn Hunt. 10 Q: Thank you. When you arrived at the 11 meeting, was -- were all of those people already in the 12 meeting? 13 In other words, at what point in time did 14 you enter the meeting? 15 A: I believe they were. And -- and I 16 think that my executive assistant was sitting near the 17 door and was ushering me in or telling me to get into my 18 seat. So, I was probably one of the last people to come 19 into the meeting. 20 21 (BRIEF PAUSE) 22 23 Q: And aside from the language that you 24 say the Premier used, and that you recall him using, did 25 you hear anybody else use similar language?
151 A: I did not. 2 Q: Did you hear anything about the use 3 of -- of guns -- 4 A: Absolutely -- 5 Q: -- as part of getting the fucking 6 Indians out of the Park? 7 A: Absolutely not. 8 Q: All right. You mentioned that the 9 room then fell silent, and I believe you indicated that, 10 at least in your estimation, that the Premier recognized 11 some inappropriateness; is that fair? 12 A: I think that's fair. And -- and I 13 think that his demeanour changed and -- and he was quite, 14 almost philosophical, reserved, when he said that -- that 15 the reality of the situation was that once the occupiers 16 were allowed to be in the Park there was no way to get 17 them out of the Park. 18 And he was quite resigned to that. And -- 19 and I think that, you know, that was a -- a relief to us 20 because it certainly gave us the -- the impression that 21 he would agree with the recommendation that we were 22 making, which he did. 23 Q: And aside from the room falling 24 silent did you make any observations about any visceral 25 responses of anybody within the room?
161 A: I -- 2 Q: I'm not asking you to get into their 3 heads, but simply, have you observed any kind of physical 4 response? 5 A: Certainly, I --I was stunned by -- by 6 the comment and I -- I can't speak for others. I -- 7 suspect they were as well. 8 Q: And the reason you were stunned, with 9 respect to that comment, can you tell us? 10 A: Well, I just thought it was a wrong 11 and inappropriate comment and -- and I think that the 12 Premier knew that as well. And I think when his 13 demeanour changed that was a signal, a very strong signal 14 that -- that he understood that that was the wrong thing 15 to have said and -- and it was an out of character 16 statement 17 Q: Did anybody make any comments that 18 you can recall, sir, about what they thought of this or 19 whether that was appropriate or not? 20 A: I -- I don't recall any comments. I 21 -- I only recall after that Mr. Taman making 22 representations about what we were recommending. 23 24 (BRIEF PAUSE) 25
171 Q: If I can just get a moment, 2 Commissioner. 3 4 (BRIEF PAUSE) 5 6 Q: I wonder, Mr. Registrar, if you could 7 pass these up to the Witness? 8 9 (BRIEF PAUSE) 10 11 Q: Mr. Harnick, what I put in front of 12 you is a document that has been filed as an exhibit here. 13 It's marked as P-968 and it's -- it was marked by a 14 previous witness Ms. Hutton which purports to be a 15 diagram of the Premier's boardroom, the Premier's office. 16 And before I go on to the more specific 17 questions relative to that I just want to ask you one 18 further thing on your previous answer. 19 You'd indicated that... 20 21 (BRIEF PAUSE) 22 23 Q: Simply, that you'd indicated that the 24 comment was out of character for the Premier to make. 25 Why was it out of character?
181 A: Because I've never seen him in any 2 situation where there was a group assembled such as that 3 to -- to have made a comment in any -- in any way like 4 that with the various people there who were not just the 5 politicians or Cabinet Ministers but also the civil 6 servants. 7 Q: All right. Thank you for that. If I 8 can refer you then to the diagram in front of you P-968. 9 Are you able to tell us, sir, the seating, 10 where people were seated? 11 A: Well, I -- I don't specifically 12 remember, but I do remember being on the same side of the 13 table and right beside Larry Taman. So -- and this 14 diagram has me across the table from Larry Taman; that's 15 not right. 16 I remember being beside him. My executive 17 assistant was sitting behind us by a doorway that I 18 thought was there. And -- and I believe Mr. Hodgson and 19 -- and Mr. Runciman were on the other side. 20 But -- but I -- I do remember being right 21 beside Mr. Taman. 22 Q: Sorry, yeah. Thank you, sir. 23 24 (BRIEF PAUSE) 25
191 Q: Your -- your comment was that 2 following the statement and the room falling silent, that 3 the Premier eventually agreed with the recommendation 4 that was being put before this group. 5 A: Yes, with -- without -- without any 6 difficulty. 7 Q: Okay. 8 A: He readily agreed to it. 9 Q: And once that agreement was in place, 10 can you tell us what happened? 11 A: My -- my recollection is that there 12 may have been some discussions. The Premier, at some 13 point, got up and left and the meeting ended. 14 Q: And as a result of the meeting 15 ending, do you recall what you would have done? 16 A: I would have got up and left and gone 17 back to my office, I presume. 18 I certainly don't remember staying there. 19 I don't remember talking to anybody about these issues 20 any further. And that was, in effect, the end of my 21 involvement. 22 Q: All right. And just to bring you 23 back to this meeting, I understand that you don't, and 24 you didn't have a -- didn't have knowledge of who 25 Inspector Fox was at that point in time, and have no
201 recollection of him being there, correct? 2 A: That's correct. 3 Q: I can tell you that he testified on 4 July the 12th in these proceedings, and it's found at his 5 transcript at page 66 and 69, that he was providing an 6 update to the Premier on the events to date at the 7 request of Dr. Todres or Minister Runciman, as he 8 thought. 9 And does that help you at all? 10 A: No. 11 Q: And specifically, an update on the 12 issue of automatic gunfire. 13 A: I -- I have no recollection of that. 14 Q: And can we take it from that, that 15 you have no recollection of any discussion about gunfire 16 or the use of guns? 17 A: I have no recollection of discussions 18 about gunfire or the use of guns. 19 Q: The agreement at the end of -- at the 20 end of this meeting, if I can put it this way, was that 21 an injunction would be sought as soon as possible; is 22 that fair? 23 A: Yes. 24 Q: And did you have an understanding as 25 to what that meant or what -- what decision that that
211 would entail; what it would mean for you insofar as your 2 responsibility? 3 A: Well, I -- what I presume would 4 happen after that is, Mr. Taman would instruct the 5 lawyers who would be dealing with the issue. 6 And as I've said before, it was always my 7 understanding that it would be left to them as to how 8 they did their work, because they're the experts in the 9 -- in the area. 10 Q: Were you present at all when this 11 instruction was given by Mr. Taman to -- 12 A: I was not. 13 Q: -- the lawyers? 14 A: I was not. 15 Q: Did you give Mr. Taman any specific 16 instruction as to what he should, in turn, be passing on 17 to the lawyers that would be doing the work? 18 A: No, I didn't. 19 Q: All right. Did you receive any 20 instruction from the Premier as to -- as to what you 21 would do insofar as getting the work done? 22 A: No. 23 Q: Again, your earlier testimony, Mr. 24 Harnick, was that there was no discussion about the 25 nature or type of injunctive relief that would be sought?
221 A: There was not. 2 Q: All right. At some point in time, 3 sir, you were apprised of the allegation of gunfire, at 4 or near the Park; is that fair? 5 A: I'm not sure as -- sure about when -- 6 when you're referring to. 7 Q: And again, I'm simply asking you the 8 open ended question that at some point in time, you 9 became aware that that allegation had been made, or there 10 was an allegation of gunfire at or near the Park? 11 A: I may have been. You know, I heard - 12 - I heard stories varying from the Park being quiet to 13 sounds that might have been gunfire, but I can't recall 14 in the context of -- of what you're asking. 15 I mean, I don't know timewise. 16 Q: All right. Thank you for that. You 17 -- you, of course, have a recollection that Minister 18 Hodgson, the Minister responsible -- pardon me, the 19 Minister of Natural Resources, was present. 20 Do you recall whether he said anything or 21 what you could attribute to him by way of commentary or 22 participation in this meeting? 23 A: I don't recall. I -- my interest was 24 to ensure that the Premier and the other Ministers agreed 25 with the -- the recommended approach.
231 Q: Do you recall any comments or 2 participation by Minister Runciman? 3 A: I do not. 4 Q: Do you recall any discussion around 5 the issue of colour of right occurring within this 6 particular meeting? 7 A: I -- I do not. 8 Q: Or title to the Park or any such 9 thing? 10 A: I -- I don't recall that. 11 Q: Do you have any recollection, sir, of 12 whether there was any discussion of the possibility of a 13 burial ground or a sacred site within the boundaries of 14 the Park? 15 A: There -- there may have been, but I - 16 - I don't re -- I'm not saying that that was not part of 17 the meeting, I just don't recall that. 18 Q: All right. Do you recall any 19 discussion about what would happen once an injunction was 20 obtained? 21 A: I don't. 22 Q: Did you have any expectation or 23 understanding as to what would happen as a result of 24 obtaining an injunction? 25 A: Well, I -- I assumed that an
241 injunction would be obtained and that the court would 2 provide certain instructions around that injunction. And 3 that it would be a means for what we would have hoped 4 would be for the -- well, the courts to begin to 5 supervise a resolution of any issues that might have been 6 outstanding. 7 And it would have been a notice to the 8 occupiers that title belonged to the -- to the Province, 9 and it would have been a request to ask them as a result 10 to leave the Park. 11 Q: And did you take any steps, leaving 12 that meeting, to -- to see or oversee the work that was 13 being done? 14 A: I did not. That was role that the 15 Deputy Minister would play. It was not the role for the 16 -- for the Minister. 17 Q: Did you know anything about the 18 effort to find the judge who would hear the injunction on 19 the evening of the 6th; that is the efforts on the 20 evening of the 6th? 21 A: I do not. 22 Q: All right. You were of course aware 23 that Tim McCabe, as you've testified earlier, would be 24 the lawyer in charge of that? 25 A: That's right.
251 Q: And beyond knowing that he would be 2 in charge of this, or handling the file or the brief, 3 what else can you tell us about Mr. McCabe's efforts, if 4 any? 5 A: Well I -- only that what I said the 6 other day which was, I was advised that -- that it would 7 be Tim McCabe who would be handling this. 8 And I was advised that he was the most 9 senior person in -- in the Ministry to be doing this 10 work, that he'd had many years of experience and that he 11 felt that this was a reasonable response, and that one 12 that had in -- in the past reduced tensions and begun a 13 process of withdrawal. 14 Q: Beyond what you've told us, sir, with 15 respect to your activities of the 6th, your participation 16 in these briefings, and subsequent meetings, did you have 17 any further involvement in the Ipperwash file? 18 A: I did not. 19 Q: Okay. What is the next notice or 20 involvement that you may have had on this -- in this 21 matter? 22 A: I -- I received a phone call in the 23 very early morning hours, I guess it would have been on 24 the 7th of September, from David Moran advising me of the 25 tragedy that had occurred.
261 Q: And -- and I'm sorry, I may have 2 missed this, but did you indicate a time when you thought 3 you might have received this call? 4 A: I -- I thought it was around 4:00 or 5 5:00 in the morning. 6 Q: And Mr. Moran phones you and tells 7 you what, sir? 8 A: He told me that a man had been -- had 9 been killed and there had been some kind of an 10 altercation at -- at Ipperwash Provincial Park, but he 11 didn't know anything beyond that. 12 Q: And when he said a man had been 13 killed, did he tell you first of all the identity of the 14 person? 15 A: I -- I can't recall. 16 Q: Do you know whether or not it was a 17 police officer or a person in occupation? 18 A: It -- it was one of the occupiers; 19 that -- that was the impression, certainly, and I'm sure 20 that that's what he told me. 21 Q: All right. Aside from advising you 22 of this death, were you told about any other injuries 23 that -- that may have occurred? 24 A: I -- I don't believe I was, but I 25 could have been.
271 Q: And did you provide Mr. Moran any 2 advice or guidance as to what he ought to be doing? 3 A: I -- I just said that I would see him 4 at the -- at the office a little later. 5 Q: Just going back to your earlier 6 understanding, Mr. Harnick, were you aware that there was 7 in fact a police buildup in the area of Ipperwash Park? 8 A: I was not. 9 Q: Did you know anything about Mr. 10 Beaubien's contact with the Incident Commander? 11 A: I knew nothing about that. 12 Q: Were you aware that John Carson was 13 the Incident Commander? 14 A: I did not know that. 15 Q: Did you have any awareness of the 16 police operations that were going on at the ground in 17 relation to Ipperwash Park? 18 A: I did not. 19 Q: Did anybody seek your advice from the 20 Government as the chief law officer concerning what steps 21 should be taken next or what the Government should be 22 doing in response to this development? 23 A: They did not seek advice of -- of 24 that nature. 25 Q: Is that something that you would have
281 expected they might seek your advice on? And I'm not 2 referring to anybody in particular in Government but 3 simply the Government generally. 4 A: I -- I really -- I don't recall. I 5 may have had some discussion with -- with Larry Taman in 6 the morning, but I don't recall. 7 Q: Do you recall whether there was any 8 other formal meetings now on September the 7th of 1995 9 that you would have been involved in in relation to 10 Ipperwash? 11 A: I -- I don't know anything about any 12 other meetings I -- I can tell you. I was not involved 13 in any meetings. 14 Q: All right. 15 A: That I can recall. I -- I don't 16 believe I was at any meetings. 17 Q: Would you have been kept apprised of 18 what was going on, Mr. Harnick? 19 A: In -- in all probability I -- I would 20 have, but the -- the role that -- that others were 21 playing was more directly -- more directed to -- to what 22 was taking place, as opposed to the Ministry of the 23 Attorney General. 24 Q: If I can direct your attention to Tab 25 Number 43; that's Inquiry Document 1003773 and it's
291 marked as an Exhibit P-662 in these proceedings. 2 It's an e-mail from Leith Hunter. 3 Firstly, do you know who Leith Hunter was? 4 A: I didn't -- I don't know. 5 Q: It's dated -- as you can see it's 6 September 7th, 1995. 7 COMMISSIONER SIDNEY LINDEN: Which tab is 8 that, Mr. Worme? 9 MR. DONALD WORME: That's at 43, Mr. 10 Commissioner. 11 COMMISSIONER SIDNEY LINDEN: Tab 43? 12 MR. DONALD WORME: Tab 43. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MR. DONALD WORME: 17 Q: And I'm going to suggest to you that 18 that is a typed version of the injunction that was 19 ultimately obtained. 20 A: Yes. 21 Q: All right. And at Tab 44 the very 22 next document, it's Inquiry Document 1000891 Exhibit P- 23 442; that's at Tab 44, that is Justice Daudlin's order 24 dated September the 7th of 1995. 25 A: Yes.
301 Q: And you had a chance to review those 2 before coming here today. Does it assist you at all in 3 recalling whether or not that would have been brought to 4 your attention? 5 A: It -- it may have been, but again Tim 6 McCabe was managing this aspect. He was reporting to the 7 Deputy and I presume that's what happened. 8 Q: If I can draw your attention to Tab 9 Number 44; that's Inquiry Document 1003489. 10 A: Now, I -- I'm sorry. 44 -- 11 Q: Pardon me -- 12 A: -- is -- is the order. 13 Q: -- Tab 46. I'm sorry, 14 A: Yes. 15 Q: It's my mistake. Tab 46 is Inquiry 16 Document 1003489. It's Exhibit P-443 and that is an 17 order of Mr. Justice Flinn dated September the 8th of 18 1995. And I can tell you that we've had testimony that 19 this document is in fact an amendment to the endorsement 20 of the earlier order that we've just looked at. 21 You were aware of that? 22 A: Yes, I've read -- I've read it and I 23 -- I gather it was an amendment dealing with service of 24 the -- the order. 25 Q: All right. And again I would simply
311 ask you whether or not you recall being briefed on that 2 matter in and around that time? 3 A: I -- I don't. I -- I may have -- I 4 may well have been, but I don't recall. 5 Q: At Tab 47, Mr. Harnick, Inquiry 6 Document 1011859 Exhibit P-667; it's an ONAS briefing 7 note dated September the 8th of 1995 and you see in the 8 re line, Assertion -- or pardon me -- topic: 9 "Assertion of Claim to Ipperwash 10 Provincial Park and the Land Claim 11 Process?" 12 A: Yes. 13 Q: And the question I simply ask you is 14 whether or not you have any recollection of being briefed 15 with respect to this assertion, and what process would be 16 followed with respect to such assertion being made? 17 A: I -- I don't recall this. 18 Q: Do you know what happened to the 19 injunction that we've just now reviewed, both the -- both 20 the amendment as well as the order itself? 21 A: My -- my understanding is that it was 22 withdrawn. 23 Q: And do you know why it was withdrawn, 24 sir? 25 A: I -- I gather it was withdrawn as a
321 result of the -- the death of Dudley George and the 2 decision not to proceed with it that had been made. 3 Q: And did you have any role in making 4 that decision? Did you provide any directions? 5 A: I -- I don't recall specifically 6 being briefed. I suspect that Mr. Taman did advise me 7 about that, and that that was the recommendation that -- 8 that they were making. And if that was the 9 recommendation I would have agreed with it. 10 Q: You'll see at Tab 48, Mr. Harnick, 11 Inquiry Document 1003722, Exhibit P-756 is a fax 12 transmission sheet dated September the 12th of '95 on the 13 cover. 14 A: Yes. 15 Q: It's from Tim McCabe, do you see 16 that? 17 A: Yes. 18 Q: And inside it is a statement, it 19 reads: 20 "Statement to be read in court 21 September the 11th." 22 And I take it you've read that and that is 23 consistent with what you've just indicated -- 24 A: It is. 25 Q: -- your understanding to be?
331 A: It is. 2 Q: I want to ask you nextly, Mr. 3 Harnick, about any discussions that you would have had 4 either with Chief Tom Bressette or Grand Chief Gord 5 Peters? 6 A: I -- I know that I had -- I had 7 discussions with both Chief Bressette and Chief Peters. 8 I -- I know it was shortly after the events, the tragic 9 events, and I know that certainly they were -- they were 10 directed at conveying condolences and regrets that this 11 happened and to ensure that I could continue building and 12 maintaining relationships with these individuals 13 Q: And do you recall attending a meeting 14 on the 12th of September 1995 with Chief Bressette, Grand 15 Chief of the Assembly of First Nations, as he then was, 16 Ovide Mercredi? 17 A: Yes. 18 Q: I think it's Chief Charles Fox, as 19 well as Mr. Taman? 20 A: Yes. 21 Q: Can you tell us anything about this 22 meeting? First of all, why it was that you would have 23 attended such meeting? What it was that was discussed at 24 the meeting? 25 A: Well I -- I was requested to attend
341 the meeting, as was Mr. Taman. The meeting also involved 2 the Premier, and -- and it was a meeting with the -- the 3 Chief of Ontario, Chief Bressette, and -- and Ovide 4 Mercredi as -- as you've indicated. 5 And again, it was I gather a wide range 6 and discussion of a number of issues that -- that were 7 generally spoken about. 8 Q: All right. Where was this meeting -- 9 where did this meeting take place? 10 A: The meeting took place in the -- in 11 the Legislature in a -- in a boardroom, in a large -- 12 large boardroom in the Legislative Building. On the 13 first floor of the Legislative Building. 14 Q: And do you recall the time of this 15 meeting? 16 A: I -- I don't. 17 Q: Even generally, whether it was 18 morning or afternoon? 19 A: I have a vague recollection that it 20 might have been early afternoon, but I -- I specifically 21 don't recall. 22 Q: Okay. Sir, at Tab 49 there's Inquiry 23 Document 3000567, it's Exhibit P-686. It's a Minister's 24 briefing form. It's dated September the 12th of 1995 and 25 the subject matter:
351 "New information regarding Native 2 burial site in Ipperwash Provincial 3 Park" 4 5 (BRIEF PAUSE) 6 7 Q: I'm sorry. You've had a chance to 8 review that before testifying here today, and you'll 9 agree with me that it sets out the fact that in fact new 10 information had come to light? 11 A: Yes. 12 Q: And the earlier suggestion of a 13 burial site within the Park would seem to have at least 14 advanced, by way of credibility, as a result of this new 15 information that had come to light? 16 A: I -- I recall -- I recall seeing this 17 information. I also recall seeing information from, I 18 believe, the Ministry of Natural Resources that, where 19 they had done some archaeological investigation in the 20 early 1970s, that -- that was not conclusive of -- of a 21 burial ground existing. 22 And certainly I saw this information, and 23 to this day I think it's -- it's worth finding out. I -- 24 Q: Can you tell us whether you had this 25 information in advance of the meeting you've just told us
361 about at the Premier's Dining Room with Mr. Mercredi and 2 Chief Bressette, -- 3 A: I -- I don't believe so, but -- 4 Q: -- and others? Sorry. 5 A: I don't believe so, but I -- I can't 6 be certain. 7 Q: Did you provide any advice to the 8 meeting in your capacity as Minister Responsible for 9 Native Affairs? 10 A: Advice to the -- did I -- did I speak 11 at the meeting? 12 Q: Yes. 13 A: I may have, but I can't recall. 14 Q: All right. And specifically, with 15 respect to your -- to your responsibility as the Minister 16 Responsible for Native Affairs? 17 A: Well, I -- 18 Q: I take that that would hold true, 19 that -- that answer you've just given, you have no 20 specific recollection? 21 A: I -- I don't have specific 22 recollection. I -- I'd be surprised if there were not 23 issues that -- that I spoke about, but I can't recall 24 specifics. 25 Q: All right. And just to -- before --
371 just so that we can clear this up as well, Mr. Harnick, 2 did you give any such advice at the Dining Room Meeting? 3 And I want to just take you back for a second. 4 At the Premier's Dining Room, did you give 5 any advice, again, in your capacity as Minister 6 Responsible for Native Affairs? 7 A: I -- you know, I've thought about 8 that. I may have. I know, primarily, the 9 representations to seek the injunction as soon as 10 possible, were made by Larry Taman, and he may have 11 provided other advice or cautions to the other people 12 present at the meeting, but primarily, the 13 representations were made Mr. Taman. 14 Q: And if I can take you again forward 15 now to the meeting that you had with the Premier and -- 16 and Grand Chief Mercredi, and Chief Bressette and others 17 that you've indicated, did the issue of -- or the 18 allegation that there was a burial site within the Park, 19 was that discussed, to your knowledge? 20 A: It -- it may have been. I -- I 21 honestly don't recall. It was a long time ago. I -- I 22 know that the -- the meeting was a cordial meeting. 23 I -- I would be surprised if it wasn't 24 raised and -- and I would be surprised if my response was 25 not that we would do everything that we would -- that we
381 should be doing to protect that site, and that if we had 2 access to it, we would be prepared to work with the First 3 Nation to determine if there was a burial site there in 4 the most appropriate way. 5 Q: And let me draw your -- 6 A: In a sensitive way. 7 Q: Thank you. Let me draw your 8 attention to Tab 53. It's Inquiry Document 1011908. And 9 perhaps, Commissioner, I would ask that that be made as a 10 next exhibit. 11 THE REGISTRAR: P-975, Your Honour. 12 COMMISSIONER SIDNEY LINDEN: P-975. 13 14 --- EXHIBIT NO. P-975: Document Number 1011908. 15 Minister's Briefing Form re. 16 New Information regarding 17 native burial site in 18 Ipperwash Prov. Park and 19 transcribed voicemail of 20 Julie Jai (exhibit P-695) 21 Sept. 13/95. 22 23 CONTINUED BY MR. DONALD WORME: 24 Q: It's the Minister's Briefing Form, 25 dated September the 13th, 1995; do you see that, sir?
391 And the subject: 2 "New Information Regarding Burial Site 3 in Ipperwash Province Park." 4 It's now the subject of the following day 5 and it seems to be consistent, I would suggest to you, 6 with what you've just reported to us. 7 A: Yes. 8 9 (BRIEF PAUSE) 10 11 Q: And having had a chance to look at 12 that document, sir, and given your -- your testimony, is 13 there anything that you wish to add to that? 14 A: No. 15 16 (BRIEF PAUSE) 17 18 Q: Okay. All right. Excuse me one (1) 19 second, Commissioner. 20 21 (BRIEF PAUSE) 22 23 Q: And Mr. Millar has kindly pointed 24 out, you'll see that the date on that is September the 25 13th of '95, and there is a second page to that, sir?
401 A: Yes. 2 Q: And that is dated September the 14th 3 of '95. Mr. Millar has confirmed for me that that is 4 already part of an exhibit. It was a voice mail that Ms. 5 Jai had testified that she had left? 6 A: Yes. 7 Q: All right. And so you may not have 8 got that -- that second part of the -- of this exhibit? 9 A: Yes, I -- I see it. 10 Q: Thank you. 11 COMMISSIONER SIDNEY LINDEN: But, you 12 want it to stay in as an exhibit, as Exhibit P-975 -- 13 MR. DONALD WORME: Only because it 14 comes -- 15 COMMISSIONER SIDNEY LINDEN: -- in its 16 current form? 17 MR. DONALD WORME: Only because it comes 18 together, Commissioner -- 19 COMMISSIONER SIDNEY LINDEN: That's fine. 20 MR. DONALD WORME: -- as -- under the same 21 Inquiry document number. 22 COMMISSIONER SIDNEY LINDEN: That's fine. 23 24 CONTINUED BY MR. DONALD WORME: 25 Q: In terms of the other information
411 within that -- within that document, Mr. Harnick, you'll 2 see that -- that it goes on to indicate that it was the 3 Federal Minister of Indian Affairs' apparent intention 4 that he was going to publicly state that an Indian burial 5 site existed within the lands now known as Ipperwash 6 Provincial Park. And he had apparently released 7 correspondence dated to 1937 to that effect to support 8 his position. 9 A: Yes. 10 Q: And can you tell us when you became 11 aware of that? 12 A: I believe that we were sent the 13 information around the same time that it was being 14 released and -- and again our own information was that in 15 the early '70s some archeological work had been done and 16 it -- it didn't agree with that conclusion. And as I 17 said before it -- it's still something that should be 18 appropriately investigated and determined. 19 Q: If I can ask you to turn to Tab 56, 20 Mr. Harnick, it's Inquiry Document 1011920. It's marked 21 as Exhibit P-696. It's an ONAS house note for the 22 Honourable Charles Harnick, yourself, dated September 23 14th, 1995? 24 A: Yes. 25 Q: And the topic on that:
421 "Occupation of Ipperwash Provincial 2 Park by Members of the Kettle and Stony 3 Point First Nation and Other Aboriginal 4 People." 5 A: Yes. 6 Q: Do you recall this document being 7 brought to your attention? 8 A: I -- specifically, I -- I don't, but 9 I don't deny that that's a briefing note that I would 10 have had. 11 Q: Further, sir, at Tab 64, Inquiry 12 Document 1012435, again an ONAS House note for yourself 13 the Honourable Charles Harnick. This is dated September 14 the 20th of 1995. 15 A: Yes. 16 Q: It's got the same re. line. Do you 17 have any recollection, sir, of having this information, 18 this briefing brought to your attention? 19 A: Specific recollection I don't, but I 20 -- I have no doubt that this is an accurate House note 21 that was prepared -- 22 Q: I'd ask that that be made as -- I'm 23 sorry, Mr. Harnick. 24 A: I have no doubt that it was an 25 accurate House note that was prepared for me.
431 Q: I'd ask, Mr. Commissioner, that that 2 be made the next exhibit then please? 3 THE REGISTRAR: P-976, Your Honour. 4 COMMISSIONER SIDNEY LINDEN: Thank you. 5 6 --- EXHIBIT NO. P-976: Document Number 1012435. 7 ONAS House Note for Charles 8 Harnick re. Occupation of 9 Ipperwash Provincial Park, 10 Sept. 20/95. 11 12 CONTINUED BY MR. DONALD WORME: 13 Q: At Tab 65, Mr. Harnick, it's Inquiry 14 Document Number 1012041. It is marked as Exhibit P-760. 15 The cover letter you will see under the hand of Lois 16 Lowenberger, Counsel, is dated September the 25th, 1995. 17 Do you see that? 18 A: Yes. 19 Q: And re. Ipperwash Questions and 20 Answers, right? 21 So it sets out a list of questions and 22 answers for the Minister to -- to respond to. 23 Do you see? 24 A: Yes. 25 Q: And it starts, in actual fact, on
441 page 3 if you go three (3) pages into the document and 2 then it goes on to a number of questions and answers. 3 Do you recall being provided this list of 4 questions and answers as part of your briefing? 5 A: I -- I don't recall it, but I don't 6 doubt that this took place. 7 Q: All right. At Tab 66, sir, Inquiry 8 Document 1012085? 9 A: Yes. 10 Q: It's a Ministers Briefing Form dated 11 October the 12th of '95 and you'll see that the subject, 12 "Occupation of Ipperwash Provincial Park," and the issue: 13 "The Minister will meet with Mr. Bud 14 Wildman, MPP Algoma on October 17th to 15 discuss Aboriginal issues." 16 Do you see that? 17 A: Yes. 18 Q: Do you recall receiving this 19 particular briefing note, firstly? 20 A: I -- I don't recall. Again I -- I 21 don't doubt this. 22 Q: All right. Perhaps I can ask that 23 that be made the next exhibit, Commissioner? 24 THE REGISTRAR: P-977, Your Honour. 25
451 --- EXHIBIT NO. P-977: Document Number 1012085. 2 Minister's Briefing Form re. 3 Preparation for Minister's 4 meeting with Bud Wildman. 5 6 CONTINUED BY MR. DONALD WORME: 7 Q: Secondly, arising out of that 8 document, do you have any recollection of your meeting 9 with MPP Bud Wildman on October the 17th? 10 A: I don't specifically, but I know that 11 periodically I did meet with -- with Bud Wildman who -- 12 who had a very genuine interest in issues relating to -- 13 Aboriginal issues, issues relating to First Nations and 14 we met occasionally, not often, but occasionally and I -- 15 I have no doubt that we -- we had a meeting and I have a 16 vague recollection of the former Minister and -- and MPP 17 offering any support that he could to try and help 18 resolve the issue. 19 Q: And aside from what you've told us, 20 in your capacity as the Minister -- as the Minister 21 responsible for Native Affairs, as well as being the 22 Attorney General, did you have any further involvement in 23 the Ipperwash matter and the Ipperwash file? 24 A: Not -- not that I recollect. 25 Q: Can you tell us, to your knowledge,
461 who did have carriage of the file subsequent? 2 A: My understanding is that a group of 3 senior civil servants would have taken over the 4 management of the -- any continuing and outstanding 5 issues; that's my understanding. 6 Q: And, sir, did you give any 7 instructions to any police officers involved in dealing 8 with the occupation on either September the 4th, the 5th, 9 or the 6th of 1995? 10 A: None whatsoever. 11 Q: Those are essentially my questions in 12 examination-in-chief, Mr. Harnick. And one (1) of the 13 things that we've asked virtually every witness who has 14 attended, is firstly whether there's anything else that 15 you'd like to add? 16 And secondly, whether there are any 17 recommendations that you would like to make to the 18 Commissioner, for his consideration, to assist, 19 ultimately, in the discharge of his mandates? 20 A: Certainly one -- one thing I -- I 21 would think is -- is realistic is that if you're having 22 any kind of a what -- what I guess was called the 23 Blockade Committee, I think having seen or heard how -- 24 how the issue evolved it would be a realistic thing, 25 given that you have a statement of political relationship
471 and you're dealing with First Nations on a government-to- 2 government basis, that you consider having a 3 representative from the Chiefs of Ontario on the Blockade 4 Committee so that there would always be -- the hope would 5 be that there would always be someone who could speak to 6 the -- the occupiers and -- and in the hope of developing 7 a level of trust to a) first end the occupation and then 8 consider once the occupation was ended the substantive 9 issues that would -- would have been the rationale or 10 reason for the occupation or blockade. That's... 11 Q: All right. Thank you, Mr. Harnick. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. DONALD WORME: Those are all the 14 questions that I have in-chief, Mr. Commissioner, and 15 perhaps we can take the morning's break. However, maybe 16 before we do that if you wanted to canvass the parties to 17 see who wishes to cross-examine. 18 COMMISSIONER SIDNEY LINDEN: Yes, I do. 19 I'd like to canvas the parties before we take a morning 20 break. If anybody has any questions of Mr. Harnick, 21 would you please stand up in the ususal way and give me a 22 general estimate of how long you might expect to be? 23 Yes, Mr. Downard, on behalf of Mr. Harris? 24 MR. PETER DOWNARD: Approximately 25 fifteen (15) minutes, sir.
481 MR. DONALD WORME: Fifteen (15) minutes. 2 COMMISSIONER SIDNEY LINDEN: Anybody on 3 behalf of Mr. Runciman here? Yes? 4 MS. ALICE MROZEK: About five (5) 5 minutes. 6 MR. DONALD WORME: Approximately five (5) 7 minutes. 8 COMMISSIONER SIDNEY LINDEN: Anybody here 9 on behalf of Mr. Hodgson? I don't see any -- no, no. 10 Sorry, no? Mr. Sulman's not on his feet. 11 Ms. Perschy, on behalf of Ms. Hutton? 12 MS. ANNA PERSCHY: Approximately five (5) 13 minutes. Approximately five (5) minutes. 14 COMMISSIONER SIDNEY LINDEN: Five (5) 15 minutes? 16 MR. DONALD WORME: Five (5) minutes. 17 COMMISSIONER SIDNEY LINDEN: Mr. Sandler? 18 MR. MARK SANDLER: Fifteen (15) minutes. 19 MR. DONALD WORME: Fifteen (15) minutes, 20 Mr. Commissioner. 21 COMMISSIONER SIDNEY LINDEN: Anybody on 22 behalf of the OPP? Mr. Roland is in his seat. 23 Ms. Twohig...? 24 MS. KIM TWOHIG: Ten (10) minutes. 25 MR. DONALD WORME: Ten (10) minutes,
491 Commissioner. 2 COMMISSIONER SIDNEY LINDEN: Ms. 3 Clermont...? 4 MS. JANET CLERMONT: Ten (10) minutes. 5 MR. DONALD WORME: Ten (10) minutes for 6 the Municipality of Lambton Shores. 7 COMMISSIONER SIDNEY LINDEN: Mr. 8 Klippenstein...? 9 MR. MURRAY KLIPPENSTEIN: An hour and a 10 half. Hopefully not up to two (2), but an hour and a 11 half to two (2) hours. 12 COMMISSIONER SIDNEY LINDEN: An hour and 13 a half. 14 MR. DONALD WORME: One and a half (1 1/2) 15 to two (2) hours. 16 COMMISSIONER SIDNEY LINDEN: Ms. 17 Esmonde...? 18 MR. DONALD WORME: I should indicate that 19 Ms. Esmonde did advise me earlier that it was Mr. 20 Rosenthal's intention to -- to do the cross-examination, 21 unfortunately, he's not here this morning. I understand 22 that there is to be some switching of positions, if I 23 could put it that way. 24 MS. JACKIE ESMONDE: Yes. Due to Mr. 25 Rosenthal's teaching obligations, he couldn't be here
501 today. He's asked me to reserve an hour and a half (1 2 1/2). And I did speak with Mr. Scullion and counsel for 3 the Chiefs of Ontario; they're willing to move ahead in 4 the order. I didn't have an opportunity to speak with 5 Mr. George. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 But what was the length of time Mr. -- 8 MR. DONALD WORME: One point five (1.5) 9 hours. 10 MS. JACKIE ESMONDE: An hour and a half 11 (1 1/2) hours. 12 COMMISSIONER SIDNEY LINDEN: All right. 13 MS. JACKIE ESMONDE: Thank you. 14 COMMISSIONER SIDNEY LINDEN: And Mr. 15 Scullion...? 16 MR. KEVIN SCULLION: Thirty (30) to 17 forty-five (45) minutes. 18 MR. DONALD WORME: Mr. Scullion, thirty 19 (30) to forty-five (45) minutes. 20 COMMISSIONER SIDNEY LINDEN: And Mr. 21 George...? 22 MR. JONATHAN GEORGE: Maybe, twenty (20) 23 minutes, perhaps. Twenty (20) minutes. 24 MR. DONALD WORME: Twenty (20) minutes, 25 the Chippewas of Kettle and Stony Point First Nation.
511 COMMISSIONER SIDNEY LINDEN: On behalf of 2 the Chiefs? 3 MR. MATTHEW HORNER: The Chiefs of 4 Ontario, I anticipate about thirty (30) to forty (40) 5 minutes. 6 MR. DONALD WORME: Thirty (30) to forty 7 (40) minutes for the Chiefs of Ontario. 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Falconer...? 10 MR. JULIAN FALCONER: An hour and a half 11 (1 1/2) to two (2) hours, sir. 12 MS. DENISE WATSON: One and a half (1 13 1/2) to two (2) hours, Aboriginal Legal Services of 14 Toronto. 15 COMMISSIONER SIDNEY LINDEN: That gives 16 you a general idea of what you have to look forward to. 17 And Mr. Strosberg, you get to ask at the end if you have 18 any questions at the end. 19 And as you'll have your turn then, you 20 can't estimate now what you're time will be? 21 MR. HARVEY STROSBERG: I can't but I just 22 hope that there isn't a lot of duplication. It seemed to 23 me that with all these one and a half (1 1/2) hours that 24 there must be. 25 COMMISSIONER SIDNEY LINDEN: Well, we
521 always ask people not to duplicate and we hope there 2 isn't. And if there is, we try our best to deal with it 3 and that's what we'll do. 4 We'll have a break now and we'll come back 5 and start the cross-examinations. 6 MR. DONALD WORME: Thank you. 7 THE REGISTRAR: This Inquiry will recess 8 for fifteen (15) minutes. 9 10 --- Upon recessing at 11:24 a.m. 11 --- Upon resuming at 11:43 a.m. 12 13 THE REGISTRAR: This Inquiry is now 14 resumed. Please be seated. 15 COMMISSIONER SIDNEY LINDEN: Mr. 16 Downard...? 17 MR. PETER DOWNARD: Good morning, 18 Commissioner. 19 20 CROSS-EXAMINATION BY MR. PETER DOWNARD: 21 Q: Mr. Harnick, as you know my name is 22 Peter Downard, and I appear for Mike Harris. 23 Now, Mr. Klippenstein wanted you to go 24 over again your description of what you say the Premier 25 said in the dining room and I would like to do that too.
531 Now, as I understand it, your evidence is 2 that as you walked into the dining room, the Premier 3 said: "I want the fucking Indians out of the Park."; is 4 that correct? 5 A: Yes. 6 Q: That -- that's your evidence that the 7 Premier made that inappropriate statement? 8 A: Yes 9 Q: And then there was a pause? 10 A: Yes. 11 Q: And then the Premier made another 12 statement? 13 A: Yes. 14 Q: And he broke the silence in a very 15 calm voice? 16 A: Yes. 17 Q: And he said that once the occupiers 18 were able to get into the Park, he didn't believe there 19 was any way they could be removed from the Park? 20 A: Yes. 21 Q: And the Premier's demeanour changed 22 and he became quiet? 23 A: Well, no, I think his demeanour 24 changed immediately after he made the comment, the first 25 comment, and -- and then he became more soft-spoken and
541 philosophical. 2 Q: All right. And so his demeanour 3 changed after, what I'll call the inappropriate 4 statement, and before the subsequent statement, right? 5 A: Yes. 6 Q: All right. And you took that as a 7 strong signal that he understood that he had said the 8 wrong thing? 9 A: I did. 10 Q: And so your evidence, in substance, 11 is that the Premier made the inappropriate statement you 12 have described, and then he retracted it, right? 13 A: I -- I would agree with that. 14 Q: And he did so promptly? 15 A: He did so immediately. 16 Q: Now, as I understand your evidence, 17 it is that the conclusion of the meeting was that the 18 Government was seeking an injunction? 19 A: As soon as possible, yes. 20 Q: And you had agreed with that approach 21 throughout, correct? 22 A: I had. 23 Q: And that was the recommendation you 24 intended to support when you walked into the Dining Room 25 Meeting?
551 A: Yes, it was. 2 Q: And with respect to the action that 3 the Government was going to take regarding the occupation 4 of Ipperwash Provincial Park, that was the recommendation 5 that was accepted at the Dining Room Meeting, right? 6 A: Yes, it was. 7 Q: So the action that came out of the 8 meeting was that the Government would seek an injunction 9 as soon as possible, correct? 10 A: Yes. 11 Q: No more and no less, correct? 12 A: Yes. 13 Q: And I take it that the purpose of 14 getting the injunction was as a means of possibly getting 15 the occupiers out of the Park, correct? 16 A: Yes. 17 Q: And I take it that you accepted that 18 getting the occupiers out of the Park was a perfectly 19 legitimate goal? 20 A: Yes. 21 Q: Okay. Now -- 22 A: If -- if done according to the 23 protocol and the process set out in the protocol, and -- 24 and I was content that that is exactly what we had 25 decided to do.
561 Q: All right. So the sum and substance 2 of it is that the Government action taken in this matter 3 was perfectly appropriate? 4 A: Yes. 5 Q: All right. Now, as you can imagine, 6 when I became aware very recently of your evidence 7 regarding the inappropriate statement of the Premier in 8 the Dining Room that you've described, I informed Mr. 9 Harris of that, and I have to tell you that he tells me 10 that he does not, and that he'll testify that he does not 11 recall saying anything like that in the meeting. 12 But in addition, sir, you are the -- the 13 ninth participant in the Dining Room Meeting to testify 14 here but the first to say that the inappropriate 15 statement you have referred to, was made, or that 16 anything like that was said by the Premier in the Dining 17 Room. 18 Now does that give you any pause? 19 A: I -- I -- do you know how difficult 20 this has been for me? I had nothing but admiration for 21 the Premier and I have always -- throughout the time that 22 I was a Minister was supported in my work by the Premier, 23 he supported me in a number of initiatives within the 24 Native files, and I -- I have the utmost respect for him, 25 but, I mean, this has been a very difficult thing for me.
571 I've agonized over this. 2 And -- and, in fact, I heard it, I can't 3 speak for any other people there, but I've agonized over 4 this. And I think, you know, certainly I -- I -- the 5 Premier is a human being, he made a mistake. And -- and 6 at the end of the meeting, I think what was really 7 important was the fact that he was, in effect, 8 acknowledging that mistake by the change in his demeanour 9 and by agreeing with the decision that we had made. 10 And, while the remark may be what's upper- 11 most in people's minds, the fact is, when I walked of 12 that meeting I was content that we had done the right 13 thing according to the protocol and that he was fully 14 supportive of it. 15 Q: Now, sir, I --I don't intend to take 16 you to the evidence of every single witness who's spoken 17 to whatever the -- the Premier said in -- in the meeting, 18 but I -- I think fairness requires that I -- I put a 19 couple excerpts to you. 20 A: Yes. 21 Q: Now, sir, as -- I as I understand 22 your evidence you recall that Larry Taman was at the 23 meeting? 24 A: Yes. 25 Q: Your Deputy Minister?
581 A: Yes. 2 Q: An -- an independent civil servant, 3 not with -- not occupying any political position? 4 A: Yes. 5 Q: And is it your evidence that at the 6 meeting Mr. Taman sat beside you? 7 A: Yes. 8 Q: All right. And I take it he was 9 there when you entered? 10 A: Yes, I believe so. 11 Q: All right. Now, on November 14th at 12 page 134 of the transcript there are a number of 13 questions and answers. Question -- 14 MR. HARVEY STROSBERG: Why don't we put 15 the transcript to the Witness so the Witness can read 16 along. 17 MR. PETER DOWNARD: That hasn't been our 18 practice. 19 COMMISSIONER SIDNEY LINDEN: We often 20 don't have a hard copy. 21 MR. HARVEY STROSBERG: I -- I have a hard 22 copy. 23 COMMISSIONER SIDNEY LINDEN: Well, if 24 you've got a copy of it and you want to take it up -- 25 MR. PETER DOWNARD: This is of Mr. Taman?
591 Page 134? 2 COMMISSIONER SIDNEY LINDEN: Well, there 3 may be other parts as well. 4 5 (BRIEF PAUSE) 6 7 MR. HARVEY STROSBERG: Well, Counsel 8 certainly could provide it. 9 MR. PETER DOWNARD: Okay. That's great. 10 Thank you. 11 COMMISSIONER SIDNEY LINDEN: When it's a 12 short excerpt we usually just read it, don't we, and if 13 the Witness has a problem with it -- 14 MR. PETER DOWNARD: Yes. 15 COMMISSIONER SIDNEY LINDEN: -- and it's 16 a long excerpt, we can get it. 17 MR. PETER DOWNARD: Yes, that was my 18 intended manner of proceeding. If Mr. Strosberg would 19 like the Witness to have an extract in his hand, that's 20 perfectly fine. 21 COMMISSIONER SIDNEY LINDEN: That's fine. 22 23 CONTINUED BY MR. PETER DOWNARD: 24 "Q: At page 134 there's the question: 25 "And do you recall anyone telling you,
601 on the September 6th, that at the 2 Interministerial Committee Meeting 3 words were attributed to Ms. Hutton 4 that the Premier said to you, quote: 5 'Get the fucking Indians out of the 6 Park and use guns if you have to.' 7 [Unquote] 8 A: Sorry. The -- those words were 9 attributed to the Premier at the dining 10 room meeting? 11 Q: No, at the IMC meeting. 12 A: But the Premier -- sorry, just so 13 I understand your question, it was 14 alleged by someone that at the dining 15 room meeting the Premier had used those 16 words? 17 Q: No, that it was alleged by someone 18 that at the IMC meeting that the -- 19 that Deb Hutton had used those words, 20 that said that the Premier had used 21 those words. 22 And the question is: Did anyone tell 23 you that on September 6th or 24 thereafter? 25 A: I don't recall anything like that
611 and it's the sort of thing I'd probably 2 remember. 3 Q: And did you hear anything like 4 that at the dining room meeting? 5 A: No." 6 And then at page 135 line 6: 7 "Q: And did you hear anything from 8 the Premier with respect to the use of 9 force? 10 A: I don't recall. I don't recall 11 the Premier saying anything 12 inappropriate though. 13 Q: [sorry, I'll carry on] I don't 14 recall whether he -- he talked about 15 the use of force or not. 16 Q: And you just said that you didn't 17 hear anything -- the Premier say 18 anything inappropriate at the dining 19 room meeting? Did you hear anyone else 20 say anything that you thought to be 21 inappropriate? 22 A: No, I heard things I disagreed 23 with but not things I thought were 24 inappropriate." 25 Now, sir, does that give you any pause to
621 consider that perhaps your recollection may not be 2 strictly accurate? 3 A: No, I -- I believe that I heard what 4 the Premier said and I -- I noticed as well -- and again 5 it -- it goes back to what I said earlier, had said you - 6 - you didn't read this part and -- and, again, I mean to 7 be -- to be fair I didn't hear anything said in that 8 crude way, but that being said there was no mistaking the 9 Premier's intention. He -- he firmly thought that the 10 First Nation should be removed from the Park. 11 Q: Sure, that is -- 12 A: And again -- and again, if you take 13 out the colourful word we -- we certainly agree and -- 14 and certainly what I said after that was what got us to 15 the decision and so I -- I can't, you know, obviously 16 speak for what Mr. Taman heard. I have the greatest 17 respect for Mr. Taman and again I... 18 Q: I -- 19 A: Is was very dif -- very difficult for 20 me to come here and -- and say this. I mean, it's 21 something I've agonized over for quite some time. 22 Q: All right. Well, sir, you have to 23 understand though that I -- I have to question you like 24 this. 25 A: I understand.
631 Q: Yes? 2 A: I understand. 3 Q: And you knew Ron Vrancart? 4 A: I did. 5 Q: And he was the Deputy Minister of 6 Natural Resources? 7 A: Yes. 8 Q: All right. And when he testified 9 here on October 31st -- oh, and by the way, I take it you 10 believe that he was at the Dining Room Meeting? 11 A: I believe so. 12 Q: All right. And when he testified 13 here on October 31st, Mr. Myrka, on behalf of the 14 Government, asked him at page 107, line 12: 15 "Q: Mr. Vrancart, have you ever heard 16 anyone using inappropriate language in 17 the context discussing the events of 18 September 4 through 7, 1995? 19 A: No. 20 Q: Okay. And you -- I recall your 21 evidence, you've never heard anyone 22 using words to the effect of, 'Get 23 those f'ing Indians out of the Park?' 24 A: No." 25 Again, does that give you any pause?
641 A: Well, you know, certainly, I -- I, 2 again, I can't -- I -- I heard what I heard. And -- and 3 I have great respect for Mr. Vrancart, and I, you know, 4 certainly can't or I'm not in a position to comment on 5 whether he heard the words or didn't or -- or to 6 contradict that. 7 Q: All right. All right. Now, 8 Commissioner, I -- I could put more examples to the 9 Witness, but I don't intend to. I think we -- we have his 10 position. 11 Now, sir, your evidence is that you heard 12 the inappropriate statement as you were walking into the 13 room? 14 A: That's so. 15 Q: So, that's while you're moving around 16 in the room? 17 A: I -- I think I was moving towards my 18 chair. 19 Q: Well, were you -- were you watching 20 the Premier as you heard this statement? 21 A: I -- I don't recall. I just -- I 22 heard the statement come out and I -- I don't know, as I 23 said, what prompted it. 24 Q: Okay. Well, is there -- since you -- 25 you weren't -- since you're not sure you are watching the
651 Premier at the time you heard this statement, is there 2 any possibility that someone else made the statement? 3 A: I don't believe so. 4 Q: Okay. Would it give pause, in that 5 respect, if in the future, the Inquiry were to hear 6 evidence from some -- that -- from another meeting 7 participant that someone else in the room made a 8 statement in the inappropriate language you've described? 9 MR. JULIAN FALCONER: Mr. 10 Commissioner...? Mr. Commissioner, I have an objection 11 to that question. 12 If My Friend is referring to anticipated 13 evidence, then he's duty-bound to state what the 14 anticipated evidence is, to the Witness, so that we also 15 can understand what the question is, because that's far 16 too vague and speculative. 17 He has to put what it is the anticipated 18 evidence he expects to hear, to the Witness. 19 COMMISSIONER SIDNEY LINDEN: Well, 20 perhaps you could be a little more -- 21 MR. PETER DOWNWARD: No, I'm going to 22 leave the question. I'm going to -- I'm going to drop 23 it. 24 COMMISSIONER SIDNEY LINDEN: Okay. 25
661 CONTINUED BY MR. PETER DOWNWARD: 2 Q: Now -- okay. Now, since you don't 3 recall seeing the Premier when you say you heard the 4 inappropriate statement, I take it you would agree with 5 me that it is possible that the Premier was direct -- if 6 he said this, was directing it, the statement to, one 7 individual on a private basis, rather than to the room as 8 a whole? 9 A: Could be. I -- I don't know that. 10 Q: Do you recall anything else that the 11 Premier said in this meeting? 12 A: I -- I don't. I -- I -- he, I know 13 he talked about the -- that there -- that there was no 14 way, he believed that once they were in the Park, that 15 they were able to be removed and that he agreed with the 16 injunction. 17 And -- and I -- I can tell you that, 18 certainly, when the comment was made, Larry Taman looked 19 at me and I looked at Larry Taman. And -- and going 20 through my head was certainly, I -- I was -- I was 21 shocked and -- and at the same time I was, because of 22 that comment, I was very worried that he would not agree 23 with the approach to -- to seek the injunction. 24 And then after the pause and -- and the 25 change in his demeanour, certainly, I -- I was very
671 relieved. And, the look on Larry Taman's face was 2 probably not unlike mine. 3 Q: Okay. But, you were very relieved, 4 because you took it from the change of demeanour, that -- 5 or your expectation was, as a result of the change of 6 demeanour, that the Premier was indeed going to agree 7 with your approach? 8 A: Yes. 9 Q: All right. Now I want to ask you 10 about something that somebody said here about you; 11 regarding the meeting with Ovide Mercredi and Tom 12 Bressette in September of 1995. 13 A: Yes. 14 Q: And Tom Bressette-- Chief Tom 15 Bressette testified here on March 2nd of this year at 16 page 160 and he described you in the meeting with the 17 Premier and Ovide Mercredi and -- and himself as -- well 18 actually let me step back, let me step back on that. 19 What -- what do you recall about the 20 manner in which you participated in that meeting, if at 21 all? 22 A: I can't recall. I mean it's ten (10) 23 years ago and I -- I remember being at the meeting, I 24 remember, generally, the discussion was taking place on - 25 - on various issues. But I -- I can't recall specifics.
681 Q: Okay. Well Chief Bressette, when he 2 testified here on March 2nd at page 160, described you as 3 basically you're slumped back in a chair: 4 "His eyes were really glazed over and 5 red and never really said a whole lot 6 of anything." 7 Unquote. 8 Now, does that strike you as a -- having 9 been -- possibly having been an accurate description of - 10 - of you at the meeting? 11 A: That I -- I was sitting in a chair, I 12 think that's probably accurate. My eyes might have been 13 slightly red, that's something that I've had all my life. 14 And that I sat listening would -- would not be something 15 that would be unusual. 16 Q: Okay. Well let me put something else 17 that Chief Bressette said about the Premier. 18 The Premier said -- or pardon me, Chief 19 Bressette said that, with respect to the Premier, quote: 20 "The first thing I found was rather 21 strange that he walked in and the first 22 thing he said was, Let me be very clear 23 about this, I didn't tell anybody to 24 kill anybody. That's the first thing 25 that came out of his mouth." Unquote.
691 Now do you recall the Premier saying that 2 at this meeting? 3 A: I don't. 4 Q: If he had said that at the meeting, 5 do you think you would recall it? 6 A: I -- again we're talking ten (10) 7 years ago. And -- and I don't, I don't recall him and -- 8 Q: Okay. 9 A: -- I wish I could but I can't. 10 Q: Okay. Chief Bressette described Mr. 11 Harris in the meeting as looking very nervous. Is that 12 your recollection? 13 A: I -- I don't recall. 14 Q: All right. Thank you very much, sir. 15 Those are my questions. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Mr. Downard. 18 Ms. Mrozek, on behalf of Mr. Runciman? 19 20 (BRIEF PAUSE) 21 22 MR. ALICE MROZEK: Good morning, 23 Commissioner. Good morning. 24 THE WITNESS: Good morning. 25
701 CROSS-EXAMINATION BY MS. ALICE MROZEK: 2 Q: We've heard evidence earlier in this 3 Inquiry from Larry Taman that a meeting took place 4 between Mr. Taman and Mr. Runciman and the Deputy 5 Solicitor General, either late in the day on September 6 5th or early on September 6th. 7 And that the message coming out of the 8 meeting was that the Solicitor General and the Deputy 9 Solicitor General were of the view that this was an 10 operational matter for the police to deal with and that 11 they favoured a moderate or slow approach. 12 And I know that Commission counsel asked 13 you last day whether you recalled being advised of this 14 by Mr. Taman and you said that you could not recall his 15 advising you of the meeting. 16 But I just wanted to ask you whether you 17 recall Mr. Runciman saying anything to you at the dining 18 room meeting or at any other time that would be 19 inconsistent with these views? 20 A: I -- I don't recall speaking to Mr. 21 Runciman about any -- any of these issues. I -- I recall 22 no specific discussions about that. 23 Q: Okay. Thank you. Those are all my 24 questions. 25 COMMISSIONER SIDNEY LINDEN: Thank you
711 very much. 2 Ms. Perschy, on behalf of Ms. Hutton? 3 MS. ANNA PERSCHY: No, I don't have any. 4 COMMISSIONER SIDNEY LINDEN: No 5 questions? 6 MR. DONALD WORME: Yeah. Ms. Perschy 7 indicated that she-- 8 COMMISSIONER SIDNEY LINDEN: Yes, she 9 said that? All right. 10 Mr. Sandler, on behalf of the OPP? 11 12 (BRIEF PAUSE) 13 14 CROSS-EXAMINATION BY MR. MARK SANDLER: 15 Q: Good morning again, Mr. Harnick. 16 A: Good morning. 17 Q: I want to tell you at the outset that 18 none of my questions are going to be critical of what you 19 did or said at that meeting and you may know this but two 20 (2) of my clients Ron Fox and Scott Patrick testified 21 about the events during the dining room meeting and 22 neither were critical of any comments that you may have 23 made. All right? 24 A: Thank you. 25 Q: Now, you don't have a specific
721 recollection of Ron Fox so you've narrowed the scope of 2 my questions somewhat. 3 I want to ask you just at the outset that 4 leaving aside Ron Fox for a moment I'm going to suggest 5 to you that nothing said at that meeting suggested that 6 the OPP was seeking direction or instruction from you or 7 anyone else there on police operational matters; am I 8 right? 9 A: Yes. 10 Q: Nothing said at that meeting 11 indicated that the OPP was taking or prepared to take 12 direction from anyone in that room respecting operational 13 matters am I right? 14 A: I'd agree with that. 15 Q: And apart from the personal views 16 that may have been expressed at that meeting we've 17 already heard that no instructions or directions were 18 given or attempted to be given during that meeting and 19 that accords with your recollection does it not? 20 A: Yes. 21 Q: Now, it also accords in another way 22 and that is that your expectation was at the end of the 23 meeting as you've described that even leaving aside the 24 absence of any direction or instruction to the OPP on 25 operational matters it was expected that the OPP would
731 not be acting until an injunction was sought and obtained 2 and further direction from the Court, right? 3 A: Yes. 4 Q: And of course as you've indicated 5 that accorded with what you felt was appropriate in the 6 circumstances? 7 A: Yes, and very much related to the -- 8 the guidelines and the process that was being followed 9 pursuant to the guidelines. 10 Q: Now, Mr. Taman told us when he 11 testified here that as he understood it the OPP plan was 12 to, quote, "stay the course," to the extent possible 13 pending direction from the Courts. 14 And again that accords with your 15 recollection and your understanding of the OPP's 16 approach, right? 17 A: Sir, I -- I knew nothing about the 18 OPP's plan other -- other than getting the injunction was 19 -- was something that was in the -- the guidelines and 20 the guidelines were prepared in conjunction with the OPP 21 who -- who deal with these -- these issues on the ground 22 and that this was a step that was compatible with how 23 they believed in -- in a general sense these issues 24 should be handled. 25 Q: All right. Good. Because one (1) of
741 the things that Mr. Taman told us is that earlier on in 2 the day on September the 6th you and he and the Solicitor 3 General and the Deputy Solicitor General met. And -- and 4 I know you don't have a specific recollection now -- 5 A: Well -- 6 Q: -- in that regard. 7 A: Could -- could I stop you? 8 Q: Yes. 9 A: I never -- and -- and I gave this 10 evidence the other day. I never met with the Solicitor 11 General, the Deputy Solicitor General, the Deputy 12 Attorney General and me. I -- I met very briefly on the 13 morning of the 5th with the Deputy Attorney General and 14 the Deputy Solicitor General at the very outset. 15 It was early that morning and -- and we 16 chatted about Ipperwash for a couple of minutes and -- 17 and it was no more than were monitoring or the -- the OPP 18 is monitoring what's going on and she indicated that she 19 would keep Mr. Taman advised about any reports that came 20 through, but I never met with the -- with that group 21 including the -- the Solicitor General. 22 Q: Okay. So leaving aside that for a 23 moment, what Mr. Taman told us and I'm more interested in 24 the concepts than the precise details of -- of who met 25 and when, but he advised us that -- that it was made
751 clear to him as the Deputy Attorney General that the 2 OPP's approach was one (1) of moderation and that the 3 police had no particular desire to go into the Park? 4 And does -- and is that consistent with 5 your recollection of what your understanding was during 6 this period of time? 7 A: Yes. 8 Q: All right. Now, moving to the dining 9 room meeting we've heard evidence about views expressed 10 by the Premier and -- and Minister Hodgson in particular 11 on that date. 12 And I just want to take you to several 13 aspects of it and if it assists in refreshing your memory 14 fine and -- and if not then we'll have your evidence on 15 the point. 16 The first has to do with comments alleged 17 to have been made by the Premier. And we have evidence 18 from three (3) individuals and I want to summarize what 19 they have to say for you, very briefly, and then ask you 20 several questions arising out of that. 21 And the three (3) individuals are Ron Fox, 22 who testified here at the Inquiry, and we also hear his 23 impressions from the dining room meeting as captured in a 24 tape communication between him and Inspector Carson and 25 Chief Superintendent Coles.
761 Larry Taman is the second individual, and 2 the third is David Moran, your Executive Assistant. 3 We heard from Ron Fox that the Premier was 4 displeased that the matter had gone on as long as it had. 5 As reflected in the taped conversation, the Premier 6 wanted the Park vacated and expressed frustration at the 7 continued presence of occupiers in the Park. 8 In my opinion, the OPP made mistakes; they 9 should have done something right at the time, namely, 10 right at the time that the occupiers went in. So that's 11 what Ron Fox had to say about that aspect of the 12 Premier's comments. 13 Mr. Taman testified on November the 14th 14 at page 113, that he had a dialogue with the Premier. He 15 would have thought that the police would have the First 16 Nation citizens out of the Park by this time. Mr. Taman 17 told him that he didn't think that was necessarily so; it 18 could be better police practise to wait. 19 Mr. Taman described, other police forces, 20 according to the Premier, other police forces could have 21 done a better job in effect, and that the Premier said, 22 what he said was consistent with the sense that the OPP 23 had made mistakes, they should have done something right 24 at the time. If this were any other country or any other 25 setting, the police would have acted more quickly.
771 Mr. Moran testified here, and he said that 2 the substance of the Premier's comments were that he was 3 disappointed that the OPP had allowed the situation to 4 get this far. He described the tone of the meeting as 5 somewhat tense situation. The Premier felt strongly 6 about the issue. 7 And I also expect that we'll hear from Dr. 8 Todres, that the Premier wanted the Park vacated and 9 expressed frustration at the continued presence of 10 occupiers in the Park. 11 Now, I'm not interested in the precise 12 words that were or were not used by the Premier during 13 the dining room meeting, and as you may gather, some of 14 the words you've described today will undoubtedly be 15 seized upon. 16 But what I'm going to suggest is, that two 17 (2) things were accurate as coming out of that meeting: 18 First, that the Premier was frustrated at the fact that 19 the occupiers were still in the Park, and that's obvious 20 from the comment that you've described today; am I right? 21 A: I'd agree. 22 Q: And the second is, that he expressed 23 some dissatisfaction over the OPP's performance in 24 allowing that to happen in the first place; am I right? 25 A: Well, I -- I think, I -- I tend to
781 agree with that, given that what I recollect is, him 2 coming to the conclusion that once in the Park, there was 3 no way to get them out. 4 Q: So, in other words, and again, I'm 5 not going to spend a lot of time parsing words or 6 sentences, but the sentiment that the Premier was 7 communicating, as you understood it was that, a certain 8 dissatisfaction over the fact that the occupiers had been 9 allowed to go into the Park in the first place, and the 10 implications that resulted; am I right? 11 A: Yes. 12 Q: And -- and just stopping there for a 13 moment, if I'm right and if the witnesses who I've 14 described are right, that the Premier was expressing some 15 criticism, either in that way or in other ways, of what 16 the OPP had done had you known that there were OPP 17 Officers present, at the meeting, would you have been 18 concerned that that was inappropriate language for the 19 Premier to be communicating? 20 A: I would be concerned about that. 21 Q: Okay. 22 A: And -- and quite frankly, I -- I 23 don't believe that police officers should have been 24 involved in these discussions. 25 Q: Now, this won't surprise you to hear
791 that one of the systemic issues that -- that has been 2 discussed here, is the role of seconded OPP Officers 3 within government circles. 4 But, suffice it to say, that you 5 recognized as a systemic issue the presence of even 6 seconded OPP officers at a meeting where the Premier's 7 expressing criticism of how the OPP has conducted himself 8 -- itself, am I right? 9 A: Yes. 10 Q: And again, that's -- that's 11 regardless of the fact that no instructions or directions 12 were given to the OPP and we've heard a wealth of 13 evidence that I'm going to be submitting at the end 14 demonstrates that no such influence was ever exercised. 15 MR. JULIAN FALCONER: Mr. Commissioner, I 16 am sorry -- 17 MR. MARK SANDLER: What -- 18 MR. JULIAN FALCONER: -- is My Friend 19 engaging in argument or is that a question? We've heard 20 a -- 21 MR. MARK SANDLER: No, I'm -- 22 MR. JULIAN FALCONER: -- wealth of 23 evidence. I don't -- how's that a question? That -- 24 that can't be a question because there's a wealth of 25 evidence--
801 COMMISSIONER SIDNEY LINDEN: Well, he can 2 leave that-- 3 MR. JULIAN FALCONER: -- suggesting a 4 direction from on high through various pipelines to 5 Incident Command indicating that the police were being 6 given direction. So Mr. Sandler and I are suppose to 7 argue that at the end of the day. 8 COMMISSIONER SIDNEY LINDEN: Yes, that's 9 fine. 10 MR. JULIAN FALCONER: Not -- not through 11 a question. 12 COMMISSIONER SIDNEY LINDEN: That's fine. 13 You can leave that phrase out of your question -- 14 MR. MARK SANDLER: First of all there is 15 no evidence of -- 16 COMMISSIONER SIDNEY LINDEN: -- now, Mr. 17 Sandler and still ask the question. 18 19 CONTINUED BY MR. MARK SANDLER: 20 Q: The point that I was making and I 21 tried to frame it in a way that it's only be a 22 submission, is that -- is that Mr. Harnick's views in 23 this regard have nothing to do with whether or not 24 influence was or was not exercised. 25 And I take it you agree with that?
811 A: I do. 2 Q: All right. Thank you. Now just 3 turning to Minister Hodgson for a moment, I expect that 4 Dr. Todres will be giving evidence here that during the 5 course of the dining room meeting intemperate comments 6 were made by Minister Hodgson about the continued 7 presence of occupiers in the Park. 8 And we've also heard some evidence from 9 Ron Fox either here at the Inquiry or through the taped 10 communication that there was an extended dialogue with -- 11 that he had with Minister Hodgson over the OPP's conduct 12 within the Park. 13 Does that refresh any memory at all as to 14 Minister Hodgson's attitude towards the OPP as manifested 15 at the dining room meeting? 16 A: My -- my recollection was very much 17 related to convincing the Premier. And quite frankly and 18 I didn't much care what Mr. Hodgson's feelings were, I 19 wanted to make sure that the Premier was convinced that 20 what we were recommending was the appropriate route. 21 And I -- I have no recollection of 22 comments made by Mr. Hodgson. 23 Q: All right. You'll be delighted to 24 hear those are all the questions I have for you. Thank 25 you, sir.
821 A: Thank you. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Mr. Sandler. 4 Ms. Twohig, on behalf of the Province of 5 Ontario? 6 7 (BRIEF PAUSE) 8 9 MS. KIM TWOHIG: Thank you, Mr. 10 Commissioner. 11 12 CROSS-EXAMINATION BY MS. KIM TWOHIG: 13 Q: Mr. Harnick, my name is Kim Twohig 14 and I'm here for the Province of Ontario. I just have a 15 few questions for clarification I would like to ask you. 16 I take it from your evidence, you said you 17 had no notes of any meetings or discussions that took 18 place with respect to Ipperwash, is that right? 19 A: That's correct. 20 Q: So you're testifying on the basis of 21 your best recollection of events this ten (10) years 22 later? 23 A: That's correct. 24 Q: Okay. With few exceptions you 25 haven't disputed the notes taken by others and I assume
831 that you would agree that notes made closer to the time 2 may likely be more accurate than one's memory without the 3 aid of notes? 4 A: That stands to reason. 5 Q: Okay. Now you said that you had no 6 discussion with the Premier on September 5th or 6th prior 7 to the dining room meeting as far as you could recall, is 8 that right? 9 A: That's correct. 10 Q: But I take it you would have regular 11 contact with staff and the Premier's office such as Ms. 12 Hutton or Mr. Giorno or others? 13 A: On -- on various issues that was -- 14 that's generally the case. I can tell you I did not 15 speak to Ms. Hutton or Mr. Giorno at -- at any time on 16 the 5th or the 6th. 17 Q: Okay. Would you have sometimes 18 received information from your Executive Assistant Mr. 19 Moran, about what the Premier's office thought about 20 certain issues? 21 A: Occasionally that -- that would be -- 22 he would go to some of these various meetings on 23 different -- on different topics. They -- they were 24 ongoing issues, projects whatever. 25 I -- I don't recall being briefed by him
841 on this. I recall being briefed by the lawyers. 2 Q: Yes. Okay perhaps I could just take 3 you then to Tab 33 of the binder that you have in front 4 of you. 5 This is a e-mail from Julie Jai dated 6 September 6, 1995. It's Inquiry Document 1011770, 7 Exhibit P-653; do you have that, sir? 8 A: I do. 9 Q: Now at 12:54 p.m., Ms. Jai sent this 10 e-mail and you were not a recipient of it nor was anyone 11 in your office. But she says that MAG staff and she met 12 with Larry Taman this morning and: 13 "Larry and I briefly met with the 14 Minister to discuss the Ipperwash 15 occupation." 16 And I believe that you recalled meeting 17 with Ms. Jai and Mr. Taman that morning? 18 A: Yes. 19 Q: She then goes on to say: 20 "The agreed upon direction from the 21 Minister and Deputy, following a 22 discussion between the Minister and the 23 Premier, was the following: We will 24 apply for a civil injunction as soon as 25 possible."
851 I -- I just wanted to take you, then, in 2 addition to Tab 34 which you have looked at before, and 3 that was Mr. Taman's note that says: 4 "AG instructed by P that he desires 5 removal within twenty-four (24) hours, 6 instruction to seek injunction." 7 Do you recall that? 8 A: I -- I don't recall ever being 9 instructed by the Premier -- 10 Q: Okay. I'm just -- 11 A: -- that -- that he seeks removal of 12 the -- within twenty-four (24) hours. 13 Q: Okay. 14 A: I -- I -- take issue with that 15 because I never saw the Premier until -- or spoke with 16 the Premier or anyone from his office until I attended 17 the meeting in the dining room. 18 Q: Okay. I'm just wondering, however, 19 looking at Julie Jai's note which refers simply to a 20 discussion between you and the Premier and the goal of 21 seeking an injunction as soon as possible, is it possible 22 that you may have received information to the effect that 23 this is what the Premier wanted through your political 24 staff or some other source? 25 A: No, I -- I was never -- I was never
861 advised of -- of an instruction from the Premier or -- or 2 anyone from his office and -- and had no contact or 3 information from them until the dining room meeting. 4 Now, I think that at the briefing that I 5 had, it was made clear that the various people on the 6 Committee felt that the Government should be seen to be 7 acting as soon as possible. And that's -- that's the 8 information that I had; it would have been from that 9 briefing. 10 Q: So I take it that in the morning 11 then, before the dining room, you agreed that that would 12 be an appropriate approach; that is to seek an injunction 13 as soon as possible? 14 A: Yes. 15 Q: Now at the dining room meeting, I'm 16 wondering if you remember anyone giving an update as to 17 what was happening on the ground at Ipperwash? 18 A: I don't. But I don't deny that that 19 could have been part of the meeting. 20 Q: Do you remember any exchange between 21 Minister Hodgson and anyone else, perhaps a rather 22 spirited exchange about certain views? 23 A: I don't. 24 Q: Were you there right until the end of 25 the meeting?
871 A: I assume that I was. 2 Q: You don't recall one (1) way or 3 another whether there may have been a conversation 4 between Mr. Hodgson and Mr. Fox or anyone else towards 5 the end of the meeting? 6 A: I -- I don't recall that. I -- I 7 mean I -- I know that once the Premier agreed to the 8 course of action that we were recommending, the meeting 9 ended and I think he got up and left. 10 Q: All right. 11 A: I -- I don't remember any -- any 12 further exchanges. 13 Q: Okay. 14 A: There could have been, but I 15 certainly wasn't there for them, so. 16 Q: And similarly, is it possible that 17 Mr. Hodgson could have made some intemperate remarks that 18 you didn't overhear at the dining room meeting? 19 A: It's -- it's possible and as I said I 20 -- I came in -- I heard the Premier make the comment and 21 -- and as a I said I -- I don't know what it was in 22 response to. 23 Q: All right. Thank you. Regarding the 24 meeting that you attended on September 13th with Mr. 25 Mercredi, Mr. Bressette, and Mr. Fox, Chief Fox, I take
881 it this occurred at the legislature -- legislature 2 building? 3 A: Yes. 4 Q: Yeah. And do you remember Mr. Taman 5 being there with you at the meeting? 6 A: I believe he was. 7 Q: Okay. Do you recall whether the 8 meeting had been previously scheduled or whether it was 9 just something that happened on the spur of the moment? 10 A: That I wouldn't know, I -- I was just 11 informed by the Premier's office that the meeting was 12 arranged, was going to take place, and they gave me the 13 time and the place. And I -- I remember it being in a 14 boardroom in the east wing main floor of the main 15 legislative building. 16 Q: Is it likely, sir, in your 17 experience, that you had -- would have contacted Mr. 18 Taman and asked him to attend with you? 19 A: I -- I can't recall. 20 Q: Okay. Would he normally accompany 21 you to the Legislature for a Cabinet Meeting? 22 A: Not -- not for a Cabinet Meeting, but 23 this was a -- this was a meeting that was really a 24 meeting with -- with those who would be considered 25 stakeholders of the Ministry, and the Deputy would
891 certainly have an interest in that. 2 Q: Thank you. And finally, Mr. Sandler 3 asked you some questions about the appropriateness of 4 police officers being at the Dining Room Meeting, and I 5 understand your testimony was that you thought it was not 6 appropriate; is that right? 7 A: Well, yeah, yes, and I -- I didn't 8 elaborate, but I -- I just think that anything that could 9 potentially result in -- in less than the ability to have 10 a -- a free-flow of information and discussion is -- is 11 something that you should be very careful about and -- 12 and I think that certainly the perception is -- is an 13 issue. 14 And again, I agreed with Mr. Sandler that 15 I don't think that it -- it had any influence, I'm sure 16 that it had no influence, in terms of actions that the -- 17 the OPP may have taken. 18 But -- but I, you know, I think that 19 anything that might be an impediment on -- on the free 20 discussion that should take place at -- at meetings that 21 are internal and that are an exchange of ideas, shouldn't 22 happen. 23 Q: And I take it from what you're saying 24 that you would not expect anything said in the Premier's 25 Dining Room, to leave that room, so to speak?
901 A: Well that in -- in theory is the way 2 things happen, or should happen. I'm not sure that that 3 is ever the case in -- in terms of numbers of meetings 4 that I was at where -- that were confidential, that were 5 maybe Cabinet-related, where information was out the door 6 when you never would have expected it to be. 7 Q: And al -- 8 A: And that happens. 9 Q: -- although that happens at times, 10 though, would you consider it appropriate for people to 11 repeat remarks that were made at a meeting of that 12 nature? 13 A: Appropriate, I mean, in -- in the 14 sense of Mr. Taman, for instance, coming out of the 15 meeting and instructing lawyers based on -- on what 16 happened at the meeting, who -- who were -- who were 17 executing an instruction -- 18 Q: Yes, I didn't mean that sir, I -- I 19 meant someone repeating remarks that may have been made 20 by someone at the meeting, not of an instruction nature, 21 but -- 22 A: To me that -- 23 Q: -- such as the remarks of the 24 Premier? 25 A: To me that's inappropriate.
911 Q: And in terms of attendance at the 2 meeting, would your view of the appropriateness of 3 attendees be different if we were talking about employees 4 seconded to the Ministry of the Solicitor General, acting 5 in their capacity as civil servants, rather than police 6 officers? 7 A: No. I think -- I think you have to - 8 - you have to determine whether you can actually draw 9 that line, and I'm not sure that you can. 10 Q: Okay. 11 A: I think that you're still a police 12 officer. I'm not sure that you can draw that line. 13 Q: And would you expect a police officer 14 who attended a meeting such as that to -- to be talking 15 to the Incident Commander about what had happened at the 16 meeting? 17 A: I -- I -- that's a question I -- I 18 don't know, I don't know enough about -- I don't know 19 enough about policing, I don't know what the expectations 20 were, I don't know what, in -- in fact, their -- their 21 total role was. So it's a question I can't answer. 22 MS. KIM TWOHIG: Thank you. Those are my 23 questions. 24 COMMISSIONER SIDNEY LINDEN: Thank you, 25 Ms. Twohig.
921 Ms. Clermont, on behalf of Municipality of 2 Lambton Shores? 3 MS. JANET CLERMONT: Good afternoon, 4 Commissioner. 5 6 CROSS-EXAMINATION BY MS. JANET CLERMONT: 7 Q: Afternoon, Mr. Harnick. My name is 8 Janet Clermont and I represent the Municipality of 9 Lambton Shores. 10 And I'm just interested in your 11 observations regarding communications with external 12 stakeholders, and that's what my questions will be 13 focussed on. 14 A: Yes. 15 Q: I want to turn you firstly to Tab 9, 16 that's Document 1011557, Exhibit 303. 17 COMMISSIONER SIDNEY LINDEN: I am sorry, 18 Ms. Clermont, what tab was that again? 19 MS. JANET CLERMONT: Tab 9. 20 COMMISSIONER SIDNEY LINDEN: 9. Thank 21 you. 22 23 CONTINUED BY MS. JANET CLERMONT: 24 Q: And if you look under, "Current 25 Status", the second point, at the first sentence:
931 "If there's an emergency situation, the 2 community develops -- [or the, sorry] 3 the Committee [that would be the IMC 4 committee] develops recommendations, 5 may appoint a negotiator, may recommend 6 that legal action be taken and ensures 7 that adequate communication occurs with 8 all affected groups, including the 9 general public." 10 And I believe that Mr. Worme took you to 11 that -- this document in his examination in-chief? 12 A: Yes. 13 Q: And I'm interested in the comment: 14 "Ensures adequate communications occurs 15 with all affected groups, including the 16 general public." 17 And is it your understanding that the 18 Municipality would be included as an affected group? 19 A: I would think so. 20 Q: All right. 21 22 (BRIEF PAUSE) 23 24 Q: And the other document that I want to 25 turn you to is at Tab 33; that's Exhibit P-653, Document
941 1011770. 2 A: Yes. 3 Q: And again under number 1, 4 Communications, the -- the third point: 5 "MNR political staff will work on 6 informal communications with key people 7 in the region to explain what the 8 province is doing and to try to diffuse 9 tensions." 10 And I'm just wondering if -- if this plan 11 to work on informal communications was ever brought to 12 your attention by anyone -- by Julie Jai or anyone from 13 the IMC committee? 14 A: It was not. 15 Q: It was not, okay. And I'm wondering 16 if you'd agree with me that it would have been helpful to 17 have a communication plan in place during the summer of 18 1995, and certainly before September 6th, that 19 anticipated communications with external stakeholders 20 such as the Municipality in the hopes of diffusing 21 tensions? 22 Would that have been something that you 23 would have seen as helpful? 24 A: Certainly it's not an untoward 25 suggestion and -- and I would have assumed that those
951 involved at -- at the Park, meaning the MNR and -- and 2 the OPP, would have had such a plan. 3 Q: I appreciate that. Perhaps that 4 wasn't something that you turned your mind to; is that -- 5 A: No. 6 Q: -- is that right? Okay. 7 8 (BRIEF PAUSE) 9 10 Q: And I'm wondering if you would -- if 11 you would agree that consultation with -- 12 A: Can I just -- just -- 13 Q: Sure. 14 A: -- add one thing. I mean I -- I 15 think that the -- the protocol or the -- the, what is it 16 that you call it, the guidelines would have indicated 17 what issues around -- how issues around communications 18 would be -- would be dealt with. Just in addition to 19 what I said earlier. 20 Q: Thank you. And -- and also I wanted 21 to speak with you with respect to -- to consultation. 22 And would you agree with me that -- that 23 consultation with the Municipality is an important 24 component of the communication plan, and by 25 "consultation," I mean seeking other parties' views,
961 concerns and ideas? 2 A: I -- I -- it sounds reasonable to me. 3 Q: And I just want to refer you to -- to 4 one other document. I have a copy here for you and I 5 believe I've provided a copy to your counsel last week, 6 so I'm hoping that you had an opportunity to review it. 7 It's Document Number 3001718 and it's 8 pages 95 to 96 and I have a copy here, if it can be put 9 to the witness, and a copy for... 10 11 (BRIEF PAUSE) 12 13 MS. JANET CLERMONT: I also have a copy 14 for the Commissioner. 15 COMMISSIONER SIDNEY LINDEN: Thank you 16 very much, Ms. Clermont. 17 18 CONTINUED BY MS. JANET CLERMONT: 19 Q: Have you seen this document 20 previously? 21 22 (BRIEF PAUSE) 23 24 A: I may have. 25 Q: I'm advised that it -- it's a public
971 document and it's entitled, ONAS Fact sheet. And it 2 discusses public consultations and -- with respect to 3 land claims and self-government negotiations. 4 And I just make -- it makes reference to 5 educating the public and keeping them informed of -- of 6 land claims and -- and other Aboriginal issues that seems 7 to be part of ONAS' -- something that they attempt, at 8 least, to -- to do in the community. 9 Is that -- does that sound fair? 10 A: Yes. 11 Q: And -- 12 A: And it's a very significant part of - 13 - certainly any land claim to keep the -- keep people 14 informed of what the land claim is about and to keep them 15 informed and where appropriate consulted with. 16 Q: And I'm wondering if -- if you would 17 extend that to -- to Aboriginal Emergencies such as 18 occupations if -- if the same type of policy or approach 19 would -- would also be appropriate in -- in an emergency 20 or occupation? 21 A: Again, I -- I -- my recollection is 22 that the guidelines provide for communication plans and I 23 think what you're -- what you're saying sounds 24 reasonable. 25 Q: Okay. Thank you. Those are my
981 questions. 2 COMMISSIONER SIDNEY LINDEN: Thank you, 3 Ms. Clermont. 4 Mr. Klippenstein, what's your preference? 5 Would you like to start your examination now or would you 6 like to break for lunch and start after? It doesn't 7 matter? 8 MR. MURRAY KLIPPENSTEIN: I'm in your 9 hands, Commissioner. Maybe this is -- I gather the time 10 we usually break anyway. So it-- 11 COMMISSIONER SIDNEY LINDEN: Sometimes 12 when we start at half past 10:00 we go a little longer. 13 MR. MURRAY KLIPPENSTEIN: I'm in your 14 hands. 15 COMMISSIONER SIDNEY LINDEN: Mr. 16 Falconer, do you have something to add to this? 17 18 (BRIEF PAUSE) 19 20 MR. JULIAN FALCONER: Only that there's a 21 matter I wanted to speak to prior to the commencement of 22 cross-examinations at this juncture. So perhaps the 23 lunch break will allow me to communicate that to your 24 counsel. 25 COMMISSIONER SIDNEY LINDEN: That's fine,
991 so we'll take lunch break now and we'll reconvene. 2 THE REGISTRAR: This Inquiry stands 3 adjourned until ten minutes to 2:00. 4 5 --- Upon recessing at 12:37 p.m. 6 --- Upon resuming at 1:51 p.m. 7 8 THE REGISTRAR: This Inquiry is now 9 resumed. Please be seated. 10 COMMISSIONER SIDNEY LINDEN: Okay. Yes, 11 Mr. Klippenstein? 12 MR. MURRAY KLIPPENSTEIN: Good afternoon, 13 Commissioner. 14 15 CROSS-EXAMINATION BY MR. MURRAY KLIPPENSTEIN: 16 Q: Good afternoon, Mr. Harnick. 17 A: Good afternoon. 18 Q: As -- as you may know, my name is 19 Murray Klippenstein and I'm one of the legal counsel for 20 the Estate of Dudley George and the Family of Dudley 21 George. 22 And I'd like to ask you questions for 23 awhile about the comment that you attributed to former 24 Premier Harris at the Premier's boardroom or dining room 25 meeting of the 6th. And just so I understand it, I
1001 believe you confirmed that your recollection is that you 2 heard the Premier say: 3 "I want the fucking Indians out of the 4 Park." 5 Is that right? 6 A: That's correct, that's what I said. 7 Q: Okay. And I'd just like to ask a 8 little about your recollection of that comment. I take 9 it -- I think you've said you were -- at one point you 10 used the word, 'stunned' and at one point you used the 11 word 'shocked' and can I take it that those reactions are 12 one reason you can still recall the comment today, ten 13 (10) years later? 14 A: Yes. 15 Q: And so it's fair to say the comment 16 stuck out in your mind at the time? 17 A: Yes. 18 Q: And I want to ask about some of the 19 specific words or phrases in the comment. And I 20 understand that it's possible for me to get to a level of 21 specificity where one's memory isn't as firm. But I'd 22 just like to see what your recollection is like in -- in 23 those terms. 24 For example, the phrase or word, "I want," 25 as in I want the Indians out of the Park.
1011 Do you recall those specific words or do 2 you recall that sentiment, namely, this is what the 3 Premier wished or something in between? 4 A: I -- I told you what I believed that 5 he said and that's what I believe that he said. 6 Q: Okay. 7 A: And -- and you can parse every word 8 but I mean, unless you want to talk -- well that's what - 9 - that's what I remember. 10 Q: Okay. So whoever heard that -- let 11 me not ask about what other people might have heard or 12 thought. But you clearly understood at the time that the 13 sentence was expressing what the Premier wanted? 14 A: You -- you heard what I said. 15 Q: Well -- 16 A: I -- I don't know much more about 17 what you want me to tell you about that. 18 Q: I want to know what your 19 understanding of the different parts of that sentence is 20 or was. 21 A: You can't be serious. 22 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 23 Strosberg? 24 MR. HARVEY STROSBERG: With respect, I -- 25 I hope we're not going to get down to the emphasis on
1021 which syllable. A statement is a statement, it's clear 2 unambiguous. 3 This has now been cross-examined on, I 4 think, a few times. I -- I hope we're not going to spend 5 -- I mean I love Forest but I hope that we're not going 6 to have to listen to two (2) hours of which emphasis is 7 on which word. 8 And I mean, I know Mr. Klippenstein 9 understood this. I know he understood it because I saw 10 him talking to the press about it at lunch time. So -- 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 Yes, Mr. Strosberg. Welcome to Forest. We've been here 13 a while and we're going to have to hear what Mr. 14 Klippenstein has to say. As long as he's asking 15 appropriate questions -- 16 MR. MURRAY KLIPPENSTEIN: Yeah, I -- I 17 appreciate My Friend Mr. Strosberg chortling at me and 18 it's fine and fun. I don't really expect it will change 19 my questions. And if -- 20 COMMISSIONER SIDNEY LINDEN: No, you -- 21 MR. MURRAY KLIPPENSTEIN: -- require a 22 ruling on my questions that's the proper way to do and 23 we'll -- we'll do it that way I -- I hope. 24 COMMISSIONER SIDNEY LINDEN: We don't 25 have to remind you he can't get into the head of the
1031 Premier, what he meant and so on, and that's what you've 2 been doing. 3 MR. MURRAY KLIPPENSTEIN: Right. 4 COMMISSIONER SIDNEY LINDEN: So, let's 5 carry on and see if we can get through it. 6 And certainly my clients happen to believe 7 that this comment may be quite significant and -- 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 MR. MURRAY KLIPPENSTEIN: -- I -- I do 10 want to ask about -- 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 Carry on, Mr. Klippenstein. 13 MR. MURRAY KLIPPENSTEIN: Yes. Thank 14 you. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: I don't believe, Mr. Harnick, you -- 18 you got around to answering my last question which was: 19 When you heard that sentence I take it you understood for 20 -- for example through the words, "I want," that it was 21 the Premier's wishes that were being expressed; that was 22 your understanding is that right? 23 A: I told you what he said; that's what 24 I heard him say. 25 Q: Okay.
1041 A: I -- I don't know many more ways I 2 can tell you that that's what I heard him say. 3 Q: All right. I'm trying to see whether 4 you had some understanding of what he said. And I take 5 it you've said what you heard him say. I want to know -- 6 and you've said you were stunned and shocked. You said 7 at one point that you and Mr. Taman looked at each other. 8 I take it you made some evaluation of the 9 meaning of the sentence at the time; isn't that fair? 10 A: I think it speaks for itself and -- 11 and I've nothing more that I can tell you about it. 12 Q: Well, I -- I find that a little hard 13 to believe, but let me -- if that's your evidence then -- 14 then that's the evidence but let me -- let me ask then 15 why you said you were stunned and shocked when you heard 16 it? 17 A: Because it wasn't something I would 18 have expected. It was something that I -- I think was at 19 least, as far as I was concerned, out of character for 20 the Premier to have said, particularly because the 21 Premier was always extremely supportive of me and the 22 things that I was doing during the four (4) full years 23 that I was the -- the Minister Responsible for Native 24 Issues. 25 And -- and by that I mean in terms of the
1051 land claims that we settled, the public appointments that 2 I made appointing an Aboriginal person as a -- as a judge 3 of the Ontario Court of Justice, the -- the fact that I 4 appointed an Aboriginal person to Legal Aid Ontario to 5 the -- to the, I believe it was the Initial Board of 6 Legal Aid Ontario, the fact that I had appointed someone 7 from an Aboriginal community from a First Nation to the 8 Judicial Appointments Committee. 9 And -- and quite frankly the Premier was 10 always very supportive of me and -- and -- in terms of 11 the things that I was doing and the significant 12 accomplishments that I believe were made. 13 Q: Well, I can appreciate that, Mr. 14 Harnick, and I'm not trying to be argumentative, but my 15 question relates to something that happened on September 16 6th of 1995 which was quite early on in the -- in -- in 17 the term, and I would imagine that some of the things 18 you've mentioned which you say the Premier was supportive 19 on happened afterwards, right? 20 A: I -- I had also spent five (5) years 21 with Mr. Harris as -- as the leader of -- of our party. 22 We were in the Opposition. It was at that time that we 23 developed some of the directions that we would be moving 24 in, and again I -- I can only tell you that he was always 25 supportive of -- of those directions and there's nothing
1061 more I can add. 2 Q: Well, I'll come back to that, but you 3 -- you said that one reason you were stunned and shocked 4 was because the statement appeared out of character; is 5 that right? 6 A: Because I didn't expect it is what I 7 said. 8 Q: All right. And isn't there a little 9 bit more to it? You were stunned and shocked because of 10 the apparent meaning of those words to you; isn't that 11 fair, too? And I want to ask -- 12 A: No. 13 Q: I want to ask about that, a bit. 14 A: I -- I was stunned and shocked 15 because I -- I became quite concerned. As I said 16 earlier, that the -- that the -- that perhaps we would 17 not be able to succeed in gaining a consensus that 18 seeking the injunction was the appropriate way to 19 proceed. 20 And -- and that was certainly dispelled by 21 what I believe was the Premier's next comment which was a 22 different tone, a -- a much more resigned, conciliatory 23 tone recognizing that once the occupiers were in the 24 Park, that there was no way to get them out. 25 And -- and the -- the Premier was resigned
1071 to that and he was fully prepared and agreed to accept 2 the recommendation that we were making which was to seek 3 the injunction. 4 Q: Well, I -- all right. I would -- I 5 suspect, given your previous comments, for example, I 6 heard you talk about the statement of political 7 relationships and about how it described a respectful 8 nation-to-nation relationship and some of those things, 9 you said you believed in them, you felt guided by them; 10 is that fair? 11 A: Yes. 12 Q: Well, I guess I'm -- I just have the 13 sense that probably there was more to the statement made, 14 apparently by the Premier, that concerned and stunned and 15 shocked you, than just that it was out of character and 16 that it meant you might not get your -- 17 A: No. 18 Q: -- injunction. 19 A: Well, I certainly didn't read any -- 20 any more into it. I certainly wasn't thinking of the 21 statement of political relationship. I -- I told you 22 what -- what I was thinking. And I think that, aside 23 from all the rhetoric, it was -- it was quite clear that 24 -- that the Premier was fully in agreement with the 25 approach to seek the injunction as soon as possible.
1081 Q: All right. So, I take it from you 2 there's no other reason that you were stunned and shocked 3 by the statement other than that it seemed to mean you 4 wouldn't get the injunction and -- 5 A: I -- 6 Q: -- it was out of character? 7 A: I -- I've answered the question. 8 Q: All right. 9 A: I -- there's nothing more I can say 10 on it. 11 Q: All right. Did the phrase 'fucking 12 Indians' concern you? 13 A: Well, I thought it was inappropriate, 14 it was insensitive. I think the Premier made -- made a 15 mistake and -- and certainly the change in his tone 16 acknowledged that to me. 17 Q: All right. But -- so you think that 18 you recognized that the phrase was insensitive, so that 19 was another matter that concerned you? 20 A: No, I said insensitive and 21 inappropriate. So if you're going to quote me, you got 22 to quote me accurately. 23 Q: All right. 24 A: Don't just -- 25 Q: Sure.
1091 A: -- take a piece here and a piece 2 there and stick the -- 3 Q: All right. 4 A: -- things together. 5 Q: All right. Well I -- 6 A: That's not fair. 7 Q: I don't mean to be fair (sic) to you, 8 I want you to have your say. 9 A: You don't mean to be fair to me? 10 Well, I appreciate that. 11 Q: Okay, good. Well, is that then part 12 of the reason, just so I understand you, to be fair to 13 you, part of the reason you were stunned and shocked by 14 the phrase 'fucking Indians' was because you thought it 15 was insensitive, right? 16 A: I -- I told you before, I thought it 17 was inappropriate and insensitive. 18 Q: Right. 19 A: You don't want to hear the word 20 'inappropriate'; I'm going to tell it to you again. It 21 was inappropriate. 22 COMMISSIONER SIDNEY LINDEN: He used the 23 two (2) words together -- 24 MR. MURRAY KLIPPENSTEIN: Okay. 25 COMMISSIONER SIDNEY LINDEN:--inappropriate
1101 and insensitive. 2 THE WITNESS: And, really, I don't have 3 anything more to -- to say about that. 4 MR. MURRAY KLIPPENSTEIN: Well, maybe 5 not, we'll see. 6 7 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 8 Q: So part of the reason the words 9 'fucking Indians' stunned and shocked you was because you 10 thought they were inappropriate and insensitive; is that 11 right? 12 A: They were inappropriate and 13 insensitive. 14 Q: Is that correct? 15 A: That's correct. 16 Q: Okay. So now we have another reason 17 why those words stunned and shocked you. Was there any 18 other reason that the words, "fucking Indians," stunned 19 and shocked you? 20 A: I can't think of any other reasons. 21 22 (BRIEF PAUSE) 23 24 Q: Would you agree with the suggestion 25 that the words 'fucking Indians' appeared to you to
1111 exhibit a certain degree of animosity towards Native 2 people? 3 A: I said they were insensitive and 4 inappropriate. 5 Q: All right. But my question was 6 whether you would agree that the words -- 7 A: I -- I didn't think of the word 8 animosity and -- and certainly the -- the -- what -- if 9 you take the whole of what the Premier said, he -- he as 10 I said was apologetic, and -- and certainly recognized, 11 as I said, that he didn't believe that there was any -- 12 any way that you were once in -- in the -- once occupying 13 the Park that they could be removed. 14 Q: Well, I'm going to come back again to 15 the words. But, you used the word 'apologetic'. Are you 16 suggesting that the Premier appeared apologetic after 17 using that sentence; "I want the fucking Indians out of 18 the Park"? 19 A: I believe he -- he felt that way. 20 That's the way I interpreted it. 21 Q: All right. Did he use the word 22 'apologize' or 'apologetic'; do you recall? 23 A: No. I -- I told you if -- if -- 24 that's what my perception was. 25 Q: I'm just trying to clarify it because
1121 I want to be fair to you. I want to -- and you said you 2 thought that was his view and I wanted to know whether he 3 used the word. 4 I take it, to your recollection, he didn't 5 use -- 6 A: No, I -- I -- 7 Q: -- the word 'apologize' or 8 'apologetic', right? 9 A: I -- I've never said that that's the 10 word that he used. 11 Q: All right. Now, you said that he 12 appeared apologetic. Did he -- did he say, I retract 13 that statement? 14 A: I -- I told you what he said. I -- I 15 don't have anything more to add to what he said. 16 Q: Did he say, I withdraw that 17 statement? 18 A: I -- I told you what he said -- 19 COMMISSIONER SIDNEY LINDEN: There's only 20 so many times we can ask the question and get the same 21 answer. So, I'm not sure how many -- 22 MR. MURRAY KLIPPENSTEIN: With respect, 23 Commissioner, it's different words and -- 24 COMMISSIONER SIDNEY LINDEN: Well, it's 25 pretty close.
1131 MR. MURRAY KLIPPENSTEIN: It's pretty 2 close. I'm trying to understand what happened and what 3 looks to be potentially important -- 4 COMMISSIONER SIDNEY LINDEN: At some 5 point in time this is -- we've gone as far as you can go 6 with this. 7 MR. MURRAY KLIPPENSTEIN: With respect, 8 Commissioner, Mr. Harnick has said which he didn't say 9 before that he thought the Premier felt apologetic. 10 THE WITNESS: I -- I did say that before. 11 I said that that was my impression. My impression was 12 that there was a change in his demeanor and I said that 13 he appeared apologetic. 14 COMMISSIONER SIDNEY LINDEN: Carry on. 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: Did you -- do you know whether anyone 18 else said at any point the Premier apologized for that 19 statement or anything? 20 A: I -- I never said that. 21 Q: I know. I'm asking you. Did -- to 22 your knowledge from -- from what you heard and saw or 23 spoke with other people about, did anybody else say to 24 you what you've just said, that the Premier appeared 25 apologetic?
1141 A: No. I didn't discuss it with anyone. 2 Q: You didn't discuss it with anyone. 3 Did the Premier explain what he meant when he said, "I 4 want the fucking Indians out of the Park"? 5 A: I told you everything that I recall 6 that he said. 7 Q: All right. 8 A: I -- I don't have anything to add to 9 it. 10 Q: So, when you say that you thought the 11 Premier was apologetic, it's not because you heard him 12 say the word 'apologize' or withdraw or retract or 13 explain, it's because of what he then did. 14 Is that fair? 15 A: It was my -- my perception based on 16 the change of his tone and the recognition that he made 17 about not being able to get the occupiers out of the Park 18 once they had occupied it. 19 Q: All right. Just so I understand, 20 you've identified repeatedly two (2) things which caused 21 you to perceive, as I understand it, that the Premier was 22 apologetic. 23 One was the change in his tone and the 24 other was his statement about never being able to get the 25 Indians out of the Park; is that right?
1151 Is there anything else which led you to -- 2 MR. HARVEY STROSBERG: With respect, Mr. 3 Commissioner -- 4 COMMISSIONER SIDNEY LINDEN: You have to 5 come up to the mic, Mr. Strosberg. 6 MR. HARVEY STROSBERG: With respect, Mr. 7 Commissioner, that's not a fair statement of the 8 evidence. The Witness has said, at least twice and maybe 9 three (3) times, that it was tone, demeanor and -- and 10 other things. 11 But, you can't just put two (2) of them. 12 If you're going to put the question properly and 13 summarize the evidence, you've got to do it fairly. 14 COMMISSIONER SIDNEY LINDEN: Yes. 15 MR. HARVEY STROSBERG: And the Witness 16 has said 'demeanor' at least twice and counsel should be 17 careful about how he puts -- puts the position to him. 18 COMMISSIONER SIDNEY LINDEN: Yes. 19 MR. MURRAY KLIPPENSTEIN: I think the 20 whole point of my question was there anything else. So, 21 with the help of your counsel, I -- I now want to know 22 whether there's anything else other than -- 23 THE WITNESS: I've answered the question. 24 25 CONTINUED BY MR. MURRAY KLIPPENSETIN:
1161 Q: Have you? 2 A: I don't have anything else to add. 3 Q: All right. So, I take it there's 4 nothing other than the three (3) things mentioned by your 5 counsel which suggested -- 6 A: I've answered the question. I -- I 7 have nothing else to add. 8 COMMISSIONER SIDNEY LINDEN: He's 9 answered the question. His questions are on the record 10 and I suggest that you move on. I mean you can't keep 11 asking the same question. I think you have asked -- 12 MR. MURRAY KLIPPENSTEIN: With respect, 13 Mr. Commissioner, this is a -- a matter that appears to 14 my client of extraordinary seriousness. 15 COMMISSIONER SIDNEY LINDEN: It's 16 important to everybody, everything is, Mr. Klippenstein. 17 MR. MURRAY KLIPPENSTEIN: It is and with 18 respect -- 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. MURRAY KLIPPENSTEIN: -- Mr. 21 Commissioner, I am entitled to a fair degree of 22 precision -- 23 COMMISSIONER SIDNEY LINDEN: You -- 24 MR. MURRAY KLIPPENSTEIN: -- in the 25 question and answers and I will --
1171 COMMISSIONER SIDNEY LINDEN: You are and 2 I assure you'll have that, now move on. You're not 3 entitled to go over the same thing again and again. 4 MR. HARVEY STROSBERG: And -- and, Your 5 Honour, the Witness is entitled to fairness too -- 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. HARVEY STROSBERG: -- not just Mr. 8 Klippenstein's client. 9 COMMISSIONER SIDNEY LINDEN: It's 10 fairness all around and I'm doing my best to try to be 11 fair to everybody and I suggest that you move forward. 12 MR. MURRAY KLIPPENSTEIN: I'll do so. 13 14 (BRIEF PAUSE) 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: I said I would go back to the -- to 18 the expressions that the Premier used. And you said, I 19 gather, that the Commissioner used the phrase, "out of 20 the Park," and I take it you understood that he was 21 talking about having the protestors, the Indians, out of 22 the Park which is different, for example, from having a 23 court injunction in place; is that right? 24 A: I -- I just told you what the Premier 25 said and what I also said after that was that there was a
1181 change in his demeanour and that he then said that -- 2 that once the occupiers were in the Park there was no way 3 to get them out of the Park and therefore we recommended 4 the course to seek an injunction, and he agreed. 5 Q: With respect and Commissioner, I -- I 6 don't believe my question was answered. 7 COMMISSIONER SIDNEY LINDEN: Yes. You 8 don't have to answer a question again, Mr. Harnick, if 9 you've already answered it, but you have to answer the 10 question that you're asked. 11 THE WITNESS: I -- I have trouble, sir, 12 understanding, you know, what -- what 'out of the Park' 13 has to do with 'yes, I agree we should seek an 14 injunction'. 15 COMMISSIONER SIDNEY LINDEN: Yes. It 16 may -- 17 THE WITNESS: I can't -- I can't connect 18 those two (2). I mean he wants me to define 'out of the 19 Park.' 20 COMMISSIONER SIDNEY LINDEN: It may be a 21 matter for argument as opposed to evidence from a 22 witness. All you can ask the Witness is what he knows, 23 what he heard, and his perceptions and so on. 24 MR. MURRAY KLIPPENSTEIN: That's 25 precisely what I'm asking, Commissioner.
1191 COMMISSIONER SIDNEY LINDEN: You're -- 2 MR. MURRAY KLIPPENSTEIN: And perhaps the 3 -- the Witness is looking for connections that don't 4 exist -- 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. MURRAY KLIPPENSTEIN: -- and I'm not 7 suggesting that, and that may be important that they 8 don't exist. 9 10 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 11 Q: But my question to Mr. Harnick was: 12 When you heard the Premier refer to 'out of the Park' 13 your understanding was that that referred to having the 14 protestors out of the Park, physically removed or gone 15 from the Park; is that fair? 16 A: What I said was I had concern that 17 maybe he would not agree that -- that an injunction was 18 the appropriate way to proceed and given the comments 19 that he made after that I -- I -- my concern was -- 20 proved to be unfounded. 21 Q: All right. Well, I want to ask you 22 about that, but you still haven't answered your question 23 -- the question -- and it's a simple question about when 24 the Premier said, "out of the Park," you understood, for 25 example, he didn't mean I want an injunction he meant the
1201 protestors gone from the Park. 2 Isn't that a simple question; that was 3 your understanding? 4 A: Well, that's -- I mean in -- in -- 5 that's the words that he used. 6 Q: All right. 7 A: And -- and certainly it was after 8 that that he agreed that the injunction was the 9 appropriate way to proceed. 10 Q: All right. And you said... 11 12 (BRIEF PAUSE) 13 14 Q: Well, with respect, you still haven't 15 answered the question. 16 COMMISSIONER SIDNEY LINDEN: I think he 17 has, Mr. Klippenstein. He wanted them out of the Park 18 and he thought the injunction was the proper way to 19 proceed. I don't see how you can get anymore out of this 20 Witness, out of those words than what he's given us. 21 MR. MURRAY KLIPPENSTEIN: Well, with 22 respect there are different ways to get them out of the 23 Park and there are differences between having an 24 injunction -- 25 COMMISSIONER SIDNEY LINDEN: But this --
1211 MR. MURRAY KLIPPENSTEIN: -- and having 2 them out of the Park and this is something I've asked 3 many questions about -- 4 COMMISSIONER SIDNEY LINDEN: I know that, 5 but -- 6 MR. MURRAY KLIPPENSTEIN: -- with respect 7 to many witnesses and -- 8 COMMISSIONER SIDNEY LINDEN: I'm aware of 9 that and I'm aware of the reasons you're asking these 10 questions but you have a witness on the stand and he's 11 giving his evidence and I think you have to confine your 12 questions to this Witness, not what other people may have 13 said or what you may have asked. 14 MR. MURRAY KLIPPENSTEIN: That's, I 15 believe, what I've been doing, Mr. Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Well, I -- 17 18 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 19 Q: But let me go back to a comment you 20 said. 21 You said, I believe, when you heard the 22 Premier make this comment that you were concerned because 23 the Premier might not, you concluded, agree with the 24 injunction recommendation; is that right? 25 A: I -- I had that concern; that's what
1221 I said. 2 Q: And why did you have that concern? 3 A: Because I -- I didn't know -- I 4 didn't know whether -- whether he was prepared to accept 5 it. given his comment. 6 And then it was -- when he made his 7 subsequent comment, I -- I believe and I recall that -- 8 thinking that he will accept the injunction, and he did-- 9 Q: All right. 10 A: -- as the appropriate way to proceed. 11 And that's the only -- that's the only decision that was 12 made. 13 Q: Well -- 14 A: And he agreed with it. 15 Q: And with respect, that doesn't ask -- 16 answer my question. It may be because the question 17 wasn't clear enough. 18 My question pertains to the statement, "I 19 want the fucking Indians out of the Park," and I believe 20 you said that when you heard that, you were concerned 21 that the Premier would not agree with the injunction 22 recommendation. 23 Is that right? 24 A: Yes. 25 Q: And I want to know why you were
1231 concerned and, in other words, what it is about that 2 statement that made you concerned with respect to the 3 injunction recommendation? 4 A: Because the injunction was going to 5 take some time and it -- it may -- it may not have been 6 responded to in -- in the way that -- that would have had 7 them leave the Park. 8 But I think the Premier was -- was very 9 realistic when he -- when he recognized that, once in the 10 Park, there was no other way to -- to have them leave the 11 Park and -- and he accepted the injunction. 12 Q: All right. Well let me ask you -- 13 A: Just -- 14 Q: -- about what you've said, and you 15 said that your concerns arose from the fact that, having 16 just heard the Premier make this comment about, "I want 17 the fucking Indians out of the Park," that you understood 18 at the time, when he said that, that it was -- that the 19 injunction would probably take some time and that, 20 secondly, the occupiers might not respond to the 21 injunction by voluntarily leaving the Park in response. 22 Isn't that fair? 23 A: Yes, but you're leaving out -- you're 24 leaving out the middle component which was the 25 recognition that he had that there was no way that the
1241 occupiers could be removed from the Park. 2 And therefore, he was prepared to accept 3 as the only realistic way of proceeding, the -- the 4 recommendation that we made which was to seek an 5 injunction. 6 Q: There's a question of timing here, 7 because, as I understand it, the Premier's statement, "I 8 want the fucking Indians out of the Park," caused you 9 concern and you've identified two (2) of the concerns, 10 and then you say those concerns were alleviated by the 11 apparent acceptance, right? 12 Have I got that right? 13 A: Well he -- he accepted the 14 recommendation that was made which was to seek the 15 injunction. 16 Q: All right. Well my question is why 17 would you be concerned, if you've just heard the Premier 18 say, "I want the fucking Indians out of the Park -- 19 A: Because I wasn't -- 20 Q: -- that -- 21 A: I wasn't -- I've told you this. 22 Q: You haven't let me finish my 23 question. 24 A: All right. 25 Q: You got to be fair to me, too. I
1251 take it there was something about the Premier saying, "I 2 want the fuckings -- fucking Indians out of the Park," 3 that seemed to conflict with the idea that the injunction 4 would take time, right? 5 A: That's -- yes. 6 Q: Okay. Because, when you heard the 7 comment, "I want the fucking Indians out of the Park," 8 there appeared to be an immediacy to that comment which 9 suggested to you that an injunction, which would take 10 time, wouldn't meet the Premier's apparent wishes. 11 Is that fair? 12 A: Well, I think if you're going to 13 leave out the middle component which was the Premier's 14 recognition that there was no other way, there -- you're 15 -- you're giving me sort of the -- the beginning 16 proposition and the end proposition, but you're not 17 giving me what he said in the middle. 18 And I -- 19 Q: I'm sorry, I didn't realise -- 20 A: -- don't think you're being fair. 21 Q: I don't -- I didn't realize that he 22 said this in the middle because I thought I was being 23 strictly accurate to the -- to the sequence you said. 24 Now, let's go back a step and the record 25 will -- will correct me if I'm wrong, but you said that
1261 you were concerned when you heard the Premier say, "I 2 want the fucking Indians out of the Park," and that the 3 two (2) -- at least two (2) of the reasons you gave was 4 that you -- this concerned you because you thought that 5 the Premier would not be prepared to accept the 6 injunction since it would take time and, secondly, 7 because the occupiers might not respond to the injunction 8 the way you hoped. 9 So that was why you were concerned after 10 hearing the Premier's statement. Have I got you 11 correctly so far? 12 Where's the middle comment that you're 13 concerned about? 14 A: Well, the very next thing that the 15 Premier said was that he recognized that there was no way 16 that you could have the occupiers removed, and as a 17 result, while he may have wanted them out immediately, he 18 recognized that you couldn't do that. 19 COMMISSIONER SIDNEY LINDEN: How much 20 time was there between the first statement, "I want the 21 fucking Indians out of the Park" and this second comment 22 that's referred? 23 THE WITNESS: Seconds. 24 COMMISSIONER SIDNEY LINDEN: Seconds. 25 There was no --
1271 THE WITNESS: There was a pause and then 2 a very different tone. 3 COMMISSIONER SIDNEY LINDEN: So, is it 4 like -- excuse me for interrupting your cross-examination 5 but I'm a bit confused. 6 MR. MURRAY KLIPPENSTEIN: Feel free, it's 7 helpful. 8 COMMISSIONER SIDNEY LINDEN: It was more 9 like a continuous -- the pause, how long -- 10 THE WITNESS: It was a pause -- 11 COMMISSIONER SIDNEY LINDEN: How long was 12 the pause? 13 THE WITNESS: -- for a few seconds. 14 COMMISSIONER SIDNEY LINDEN: For a few 15 seconds. 16 THE WITNESS: And -- and then the Premier 17 completed his -- his thoughts in a -- in a quite reserved 18 way. And -- and ultimately accepted after Mr. Taman made 19 recommendations, the approach which was to seek the 20 injunction. 21 COMMISSIONER SIDNEY LINDEN: See my 22 concern is the way you're asking the questions it appears 23 as if after the first statement there was a stop and then 24 the impressions that you're putting to him, that's all. 25 There seems to have been more about continuous things.
1281 MR. MURRAY KLIPPENSTEIN: Well, let me -- 2 the evidence you gave -- 3 COMMISSIONER SIDNEY LINDEN: Carry on. 4 5 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 6 Q: -- this morning, Mr. Harnick, was 7 that there was a pause and there was silence, correct? 8 A: Well usually there -- during the pause 9 nobody said anything, so yes, there was silence. 10 Q: So, there -- the Premier said, "I 11 want the fucking Indians out of the Park"; there was a 12 pause with silence, right? 13 A: And then the Premier said, Once the 14 occupiers were able to occupy the Park, there's no way 15 that they can be removed from the Park, and therefore -- 16 and then -- and then Mr. Taman made the representations 17 about the injunction and why that was the appropriate way 18 to proceed and the Premier accepted the recommendations. 19 Q: And indeed, during this pause, during 20 which there was silence, you testified as I understand 21 it, that you and Mr. Taman looked at each other because 22 both of you understood the possible problematic 23 significance of the comment just made by the Premier. 24 Is that right? 25 A: That's right.
1291 Q: Okay. So, you and Mr. Taman looked 2 at each other because, as you said, you had the thought 3 and apparently Mr. Taman had the thought that your 4 injunction recommendation wasn't going to be accepted 5 given what the Premier just said, right? 6 A: We -- we thought that that was 7 possible, but -- but we -- we learned immediately after 8 that the Premier was in fact taking a very realistic 9 approach. 10 Q: Now, your -- and in describing your 11 recollection, you said that the Premier's statement, "I 12 want the fucking Indians out of the Park" was loud, 13 right? 14 You used the word 'loud'; that's your 15 recollection? 16 A: Yeah. It was a -- it was above a 17 conversational tone. 18 19 (BRIEF PAUSE) 20 21 Q: And -- well, you gave a number 22 reasons why you said the Premier's statement, "I want the 23 fucking Indians out of the Park" was of concern to you, 24 and you used the word 'inappropriate', fair? 25 I don't want to wrongly characterize.
1301 A: Yes. 2 Q: I want to ask you what you meant by 3 inappropriate. It was -- it showed, if I may say so, an 4 animosity toward Native people. Is -- is -- and it was 5 inappropriate in that regard; would you agree with that? 6 A: I -- I think the Premier was 7 frustrated, he made an inappropriate remark, but I would 8 not characterize the Premier as having an animosity 9 towards Aboriginal people. 10 Q: Well -- 11 A: He -- he made a mistake in -- in what 12 he said and he recognized that and he -- and he also 13 recognized the reality of the situation. 14 Q: Well -- 15 A: And -- and we then went on to make 16 the one (1) decision that was made at that meeting. 17 Q: So, you think that -- are -- is it 18 your -- is it your suggestion that the statement does 19 not -- "I want the fucking Indians out of the Park" does 20 not appear to show animosity towards Native people? 21 COMMISSIONER SIDNEY LINDEN: That's not 22 what he said. That's not what he said, Mr. Klippenstein. 23 MR. HARVEY STROSBERG: It's the third 24 time the same -- 25 COMMISSIONER SIDNEY LINDEN: Yes, I --
1311 MR. HARVEY STROSBERG: -- question was 2 asked. 3 COMMISSIONER SIDNEY LINDEN: Yes, that's 4 not what he said, Mr. Klippenstein. That's not what he 5 said. No, that's not what he said. 6 MR. MURRAY KLIPPENSTEIN: Well, it's -- 7 with respect, Commissioner, I have simply turned it 8 around to try and clarify. 9 COMMISSIONER SIDNEY LINDEN: No, it's not 10 the same thing. 11 MR. MURRAY KLIPPENSTEIN: It isn't the 12 same thing. It's, in fact, the proper followup question 13 because I'm trying to say -- I'm asking if he -- if he -- 14 if it appeared that way and he's -- and he gave an answer 15 and I want to understand and I'm saying so it's not. I'm 16 just, for clarification, turning the question around. 17 COMMISSIONER SIDNEY LINDEN: Carry on. 18 That wasn't the way it came out. 19 MR. MURRAY KLIPPENSTEIN: I apologize. 20 COMMISSIONER SIDNEY LINDEN: That's not 21 the way it seemed to me. 22 MR. MURRAY KLIPPENSTEIN: I apologize if 23 I -- if I wasn't clear. 24 25 CONTINUED BY MR. MURRAY KLIPPENSTEIN:
1321 Q: I'm trying to understand what you 2 understood at the time and -- and your -- your statement 3 about being stunned and shocked and what you said 4 repeatedly about the statement being inappropriate. 5 Would you agree with me or clarify for me, 6 as I understand it you did not think -- knowing what you 7 knew about the Premier, you did not think that the 8 statement, as far as you could see, displayed animosity 9 toward Native people. 10 Is that what you're saying? 11 A: I -- I don't believe the Premier was 12 displaying animosity and that's -- that's the answer that 13 I gave you. 14 Q: All right. Would you agree with me 15 that one (1) reason that the statement appeared 16 inappropriate to you is that it appears to show contempt 17 for First Nations people? 18 A: I don't -- I don't believe that was 19 the Premier's intention either, so I don't agree with 20 you. 21 Q: Well, there's a question about what 22 you believe and what other people believed and my 23 question was not about what you concluded based on years 24 of knowing Mr. Harris, my question is: You were 25 concerned that the statement was inappropriate because
1331 indeed you knew that it appeared to be contemptuous of 2 First Nations people; isn't that right? 3 A: It was -- it was not an appropriate 4 statement to be made and -- and I -- I've told you why. 5 And I think that the Premier recognized that and in his 6 way he -- he came to a conclusion that was a -- a proper 7 conclusion in the circumstances that led to the decision 8 that we made. 9 Q: Did anybody at the meeting, including 10 yourself, make any comment about the Premier's statement; 11 in other words saying, I'm sorry, that's inappropriate, 12 I'm not sure we should be saying things that way? Did 13 anybody else, to your recollection, raise it? 14 A: No. 15 Q: So you, as the Minister Responsible 16 for Native Affairs, did not speak up and say, I'm sorry, 17 with all due respect, Mr. Premier, it's not appropriate 18 to be calling Indians 'fucking Indians' in an official 19 meeting? 20 A: I -- I didn't think that that was 21 called for given the change in demeanour of the Premier 22 and what the Premier said. And I think that certainly 23 the focus of the meeting was to determine and agree on a 24 course of action and that's exactly what we did, and an 25 appropriate course of action.
1341 Q: Do you think, sitting here now, ten 2 (10) years later, that it was the right thing for you to 3 do as the Minister for -- responsible for Native Affairs 4 to not say anything when in an official meeting a senior 5 minister has just referred to 'fucking Indians'? 6 A: I just answered that question. 7 Q: I'm not sure you did. My question 8 was: -- 9 A: I -- I told you that I didn't think-- 10 COMMISSIONER SIDNEY LINDEN: You don't 11 have to answer it again. He did answer it. 12 THE WITNESS: I didn't think I had to say 13 anything simply because I -- I believed the Premier 14 recognized by the change in his demeanour and by the 15 words that he used that -- that it -- it -- he -- he 16 understood that he had made a mistake and I -- that's the 17 impression I had. 18 COMMISSIONER SIDNEY LINDEN: That's fine. 19 THE WITNESS: And -- and I have nothing 20 more on that. 21 22 (BRIEF PAUSE) 23 24 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 25 Q: Would you agree with me that the
1351 statement, I want the fucking Indians out of the Park," 2 particularly because of the phrase 'fucking Indians' 3 would appear to be racist? Was that a concern? 4 A: Again -- again I -- I told you what 5 my impressions were. I told you what the Premier said. 6 I told you about my knowledge of -- of Mr. Harris. 7 And -- and I -- I don't believe in any 8 way, shape, or form that someone who -- who sat on the -- 9 the Board of the Canadian Society for Yad Vashem, who 10 travelled to Israel, who -- with -- with the Yad Vashem 11 Group has -- has those propensities and I reject it 12 completely. So, it's not something that -- that ever -- 13 that I ever thought. 14 Q: All right. Now, ten (10) years later 15 would you agree with me that the statement you heard from 16 the Premier, "I want the fucking Indians out of the Park" 17 appears to be racist? 18 A: No, because I -- I don't believe that 19 that was in any way the Premier's intention. And I 20 believe that the Premier, by the change in his demeanor 21 and by the very realistic way he approached the issue and 22 the decision that we ultimately agreed on, had any -- any 23 racist tendencies or directions. 24 And I don't believe that that's -- that at 25 all was what he meant -- he -- by the statement that he
1361 made. 2 Q: What did you understand the Premier 3 to mean by using the term 'fucking Indians'. 4 A: I think the Premier was frustrated. 5 I think that, you know, he -- he saw that -- but he was 6 realistic, he made a mistake and -- and I think that by 7 the change in his tone he acknowledged that. 8 Q: Can you tell me your knowledge or 9 your understanding at the time why he was frustrated so 10 that in your mind he would say, "fucking Indians"? 11 A: I think -- I think, you know, I mean 12 I -- I don't know the reason that he was frustrated. I 13 suspect that this -- there were -- there were a lot of 14 very pressing issues that the Government had, that there 15 was an agenda that the Government was trying to follow, 16 there were very significant fiscal issues that -- that 17 had to be dealt with. 18 And I think that, you know, the Premier in 19 -- in all likelihood and again, I'm speculating, but I 20 would think that the Premier would -- would see this as 21 something that was detracting from people's focus on the 22 agenda that he -- that he wanted to move forward on. 23 And -- and I think that he -- he was 24 frustrated. 25 Q: All right. And this was on the
1371 afternoon of September 6th which was two (2) and a 2 fraction days after the Park was occupied which 3 apparently had, according to some of the folks in the 4 meetings, was -- was an empty Park. 5 Now, I don't understand why an occupation 6 of an empty Park would cause the Premier to be so 7 frustrated that he would refer to them as 'fucking 8 Indians'. 9 Can you tell me anything more about why 10 you think in the conclusion you made that those -- 11 A: I can't tell you anymore than I've 12 already told you. 13 Q: All right. You've mentioned several 14 times that in your mind there was apparently a connection 15 between the Premier saying, "I want the fucking Indians 16 out of the Park" and then a change in demeanor and the 17 Premier said, "We'll never get them out of the Park". 18 Generally speaking is that right? 19 A: Yes. 20 Q: Yeah. What I don't understand is how 21 the apparent conclusion by the Premier that, "We'll never 22 get them out of the Park", would then result in 23 instructions for an injunction. 24 A: Well, I think -- I think the Premier 25 realistically, he listened to the representations that
1381 were made to him and he saw that that was the -- that was 2 the -- the recommended approach that the -- the lawyers 3 were bringing. 4 It was something that was, from my point 5 of view, contained in the guidelines. It -- it followed 6 the process that was set out in the guidelines and it was 7 -- it was -- and the guidelines were -- were something 8 that the -- the OPP had been part of creating and they 9 were -- were comfortable to them. 10 And the -- the experience of the person 11 who would -- who would be obtaining the injunction was to 12 say that -- that these kinds of -- this kind of approach 13 tended to take the tension out of these situations and 14 began a process of getting them resolved. 15 Q: Well, there's a couple of 16 difficulties I have in understanding and I want to 17 understand what your connections were. 18 First of all, I'd understood you to be 19 saying that, after the Premier said, "I want the fucking 20 Indians out of the Park," there was a pause with silence, 21 and then the Premier said, "We'll never get them out," 22 and that appears to have been before the explanation from 23 the lawyers, et cetera, or no? 24 A: I think that it was immediately after 25 that, that Mr. Taman made the representations about the
1391 injunction and why that injunction would be the 2 appropriate way to proceed and -- and the Premier agreed. 3 Q: I'm just trying to understand the 4 timing and your recollection if you can -- if you have 5 this -- 6 A: It was all very short; a matter of a 7 few minutes. 8 Q: I understand, but what I'm trying to 9 understand is whether the statement, "We'll never get 10 them out," was before or after the explanation by the 11 lawyers and civil servants -- 12 A: When I say -- 13 Q: -- because I had the impression, just 14 to be fair, that you were telling me that that comment 15 came right after the silence and pause. 16 A: That's right. And then -- and then 17 Mr. Taman made representations about why the injunction 18 would be the appropriate direction to proceed. 19 20 (BRIEF PAUSE) 21 22 Q: The difficulty I'm having 23 understanding is... 24 A: And then the Premier agreed. 25 Q: All right. And is it the case that
1401 after you heard the Premier say, "We'll never get them 2 out," at that point you felt that the Premier might well 3 agree to the injunction? 4 A: Yes, because he was being very 5 realistic in the approach that -- that -- or in the way 6 that he was seeing the issue. 7 And -- and that's when Mr. Taman made the 8 representations that he did and -- and the agreement was 9 to seek the injunction. 10 Q: So what we have, in effect, is the 11 Premier saying, "I want the fucking Indians out of the 12 Park," and there's a pause and some silence and then he 13 says, "We'll never get them out," and then a little -- a 14 few minutes, thereafter, there's instructions to get an 15 injunction; is that fair? 16 A: No, there was some representations 17 made, some explanations made about why the -- the 18 injunction was the appropriate way to proceed and -- and 19 the Premier agreed, as did everyone else that was there. 20 Q: What did you -- did the Premier make 21 any explanatory comments when he said, "We'll never get 22 them out" or words to that effect? 23 A: No, he just said, you know, once they 24 were able to occupy the Park there was no way you were 25 going to get them out of the Park.
1411 There was no obvious way to get them out 2 of the Park and -- and the injunction was the appropriate 3 -- after Mr. Taman made his -- his representations, the 4 Premier agreed that that was the appropriate way to 5 proceed. 6 Q: And was there any indication that the 7 Premier had changed his mind after hearing the 8 representations on the question of whether the injunction 9 would -- would result in them being removed from the 10 Park? 11 A: Well, I -- I mean, I think he would 12 have to have in his mind one way to proceed in order to 13 change his mind to another way. 14 And I -- I don't know that there was 15 anything in front of the Premier other than the 16 injunction and -- and it was put to him and he agreed. 17 Q: And did the Premier make any 18 representations or comments about how quickly the 19 injunction should be sought, in any way, shape or form? 20 A: I -- I don't recall. I mean, I think 21 my recollection of -- of something that was common to the 22 couple of meetings that I went to was the -- the idea of 23 proceeding as soon as possible. 24 And -- and that, in fact, was what I 25 understand the instruction to the lawyers to have been.
1421 Q: Well, I find the words, "as soon as 2 possible," have been used an awful lot in the notes and - 3 - and various places and would you agree with me that the 4 words, "as soon as possible," can be somewhat ambiguous? 5 A: No, I -- I mean, I think how it was 6 going to be done and the mechanics of doing it were left 7 to the -- to the lawyers who were the experts in doing 8 these things, and -- and that the instruction was a 9 general one. 10 It was not to tell them how to do their 11 work because they had -- they had things that they had to 12 do in order to properly prepare an injunction and -- and 13 it was left to them as to how they would do it. 14 Q: Well, the problem I'm having is that, 15 'as soon as possible', it appears to me can mean 16 different things to different people and there's some 17 evidence that it may have done that exactly here. 18 Would you agree with me that, 'as soon as 19 possible' can mean different things to different people 20 in a -- 21 A: Well -- 22 Q: -- situation such as this? 23 A: -- I -- I think it was to convey to 24 the people that would be doing the work that they should 25 try and do this as soon as they possibly can without
1431 trying to anticipate what difficulties might appear in 2 front of them. And -- and it was left to the people that 3 would be doing the work with the -- with the idea that we 4 -- we want you to move by way of an injunction and -- and 5 do it as soon as you possibly can. 6 Q: If you could turn to the -- to Tab 34 7 in your book of documents we have the note which was 8 reviewed earlier with you that talks, apparently, about 9 removal within twenty-four (24) hours. 10 You recall looking at this document? 11 A: I see: 12 "We will apply for a civil injunction 13 as soon as possible." 14 Q: Yeah. Well, let me back up a step. 15 It appears to say, and the evidence is that this is Mr. 16 Taman's handwriting and -- 17 A: I'm -- oh, I'm sorry, I'm looking at 18 -- oh, I see. Yes, yes. 19 Q: Okay. This -- this is -- 20 A: I'm sorry, I was looking at -- 21 Q: I believe you went through this -- 22 A: -- the previous one. 23 Q: -- to some extent earlier, but -- and 24 you -- you -- it appears to say: 25 "AG instructed by P that he desires
1441 removal within twenty-four (24) hours. 2 Instructions to seek injunction." 3 Right? 4 A: Yes. 5 Q: That's Exhibit P-550. And first of 6 all, would you agree with me that the statement by the 7 Premier at the beginning, "I want the fucking Indians out 8 of the Park" has a sense of urgency and immediacy to it? 9 I think you agreed -- agreed with respect to that and -- 10 A: Well, I -- 11 Q: -- would -- 12 A: I -- I think that you -- you have to 13 take that statement with the statement that was made 14 immediately afterwards as well as with the decision that 15 was made there. 16 And -- and in terms of the note in -- in 17 Exhibit -- 18 Q: P -- 19 A: -- 34 I guess it is -- 20 Q: It's Tab 34, Exhibit P-550. 21 A: Yes. I -- I told you that I was 22 never instructed by the Premier that he desires removal 23 within twenty-four (24) hours and -- 24 Q: Let me just separate out the -- the 25 part of the note that talks about the AG being instructed
1451 by the P. 2 The desire of removal within twenty-four 3 (24) hours; would you agree with me that's consistent 4 with the sense that the Premier conveyed when he said, "I 5 want the fucking Indians out of the Park"? 6 A: No, it's -- I think it's completely 7 inconsistent because what the Premier also went on to say 8 is once they're in the Park there is no way that you're 9 going to get the occupiers out of the Park. 10 So, I -- I'd say if -- if you take in 11 totality what the -- what the Premier said this is 12 completely inconsistent. 13 Q: All right. And if I look at the 14 note; it says: 15 "AG instructed by P" 16 And I take it you -- you say if "AG" means 17 the person of the Attorney General, then this is in 18 error, correct? I believe that's -- 19 A: Yes, it is. 20 Q: Yeah. 21 A: It -- I was never instructed by the 22 Premier. 23 Q: Now, have you, in your years in the 24 Ministry of the Attorney General, heard the Department, 25 in other words the Ministry of the Attorney General
1461 referred to as AG; the AG in a global collective sense? 2 A: No, generally it -- it says, MAG. 3 Q: MAG. So if I suggested to you that 4 AG in this note might mean or be shorthand for MAG as in 5 Ministry of the Attorney General, that doesn't make sense 6 to you? 7 A: Well, I -- I don't know the answer to 8 that. 9 Q: All right. 10 A: We can all speculate together. 11 Q: No, I'm just trying to understand 12 about the practice at the time. Was there ever short -- 13 A: No, usually I saw it as MAG. 14 Q: Okay. Thank you. 15 16 (BRIEF PAUSE) 17 18 Q: You mentioned in examination-in-chief 19 and also a few minutes ago -- let me -- let me take a 20 step back and rephrase that. 21 You mentioned a few minutes ago that one 22 of the concerns that you had when you heard the Premier 23 say ,"I want the fucking Indians out of the Park" was 24 that that might indicate, or rather, that it might be a 25 problem because you knew the occupiers in the Park might
1471 not respond to the injunction the way you hoped. 2 Is that right? 3 A: Well, I mean that's always a 4 possibility. 5 Q: Right. And I believe in examination- 6 in-chief you suggested that what you had in mind, 7 generally speaking, with an injunction, was that it was 8 that an injunction might act as a possible -- a 9 resolution supervised by the Court and that it was notice 10 to the occupiers that -- that they didn't have a right to 11 be there and it was a request to ask them to leave. 12 Is that generally right? 13 A: Yes. 14 Q: Yeah. And that seems to be an 15 interpretation or description of a Court Order as 16 something to be used in a negotiation process with 17 occupiers; is that fair? 18 A: I don't know. 19 Q: You don't know. 20 A: We -- we'd be speculating because it 21 never got that far, unfortunately. 22 Q: Well, I don't -- I'm not -- I don't 23 want to get into speculation. I'm just trying to 24 understand what you said at the time. 25 And to -- to say that a Court Order from
1481 an injunction is a request to the occupiers to ask them 2 to leave, I can see how that goes with the idea that a 3 Court Order will be used to provide the occupiers with 4 the idea that you're here illegally and you should leave. 5 But would you agree with me that it's more 6 than a request and an asking to the occupiers to leave? 7 It's a Court Order that they must leave, 8 is that right? 9 A: Yes. 10 Q: Yes. And that Order that they must 11 leave is enforceable; is that right? 12 A: Yes. 13 Q: And it is enforceable in a procedure 14 which we've heard evidence, involves the Sheriff and, if 15 necessary, the OPP. 16 Is that your understanding? 17 A: Yes. 18 Q: Yes. And if the occupiers don't 19 leave after a Court injunction has been provided to them 20 along with a request to leave, can you tell me whether 21 there is any other option other than enforcing it with 22 the Sheriff and the OPP using force? 23 A: Well, there may be many options. I - 24 - I couldn't tell you what they are because I'm not 25 expert in that, but I -- I suspect that if -- if an issue
1491 like this proceeded further, options would be developed. 2 I would -- I would have people make recommendations to me 3 around those options. 4 But, again, it's speculative, because it 5 didn't happen. 6 Q: So, did you give any consideration 7 and did the meeting in the dining room give any 8 consideration to how an injunction would be enforced? 9 A: No. 10 Q: Not at all? 11 A: Not that I can recall. 12 Q: No. Would you agree with me in the 13 context of an injunction, that the Premier's statement, 14 "I want the fucking Indians out of the Park", would 15 certainly appear to authorize the use of force to enforce 16 the injunction, if necessary? 17 A: Well, that's -- that's not what 18 happened and -- and to make that leap without the 19 recognition that after an injunction is obtained, and it 20 might not be, or it may ultimately be -- be in contempt 21 of the injunction because they haven't left, is to say 22 that the Ministry of the Attorney General would not have 23 provided me and -- and Mr. Taman with a range of options 24 that -- that we would then make recommendations on as we 25 did with the injunction.
1501 Is -- is -- I mean, that's what would have 2 happened. I'm not going to leap to the conclusion that 3 -- of -- of what immediately would have happened. It's 4 all speculative and I'm not going to speculate. 5 Q: Well I'm concerned, Mr. Harnick, 6 because the evidence of one set of notes is that in the 7 Interministerial Committee meeting on September 6th in 8 the morning, Ms. Hutton, according to the notes of Julie 9 Jai, said the Premier wants them out in a day or two (2). 10 And to me there appears to be a conflict 11 between a statement like that and what you described as 12 what you'd expect the enforcement process to be. Were 13 you -- 14 COMMISSIONER SIDNEY LINDEN: Do you want 15 to finish your question before Ms. Perschy... 16 17 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 18 Q: Were you aware of a statement, 19 allegedly made in the IMC meeting, that the Premier wants 20 them out -- out in a day or two (2)? 21 A: Well I -- I -- 22 COMMISSIONER SIDNEY LINDEN: Just before 23 you answer, Mr. Harnick, do you want put an objection to 24 the question. No? 25 MS. ANNA PERSCHY: I don't have an
1511 objection to him being -- whether or not he's aware of 2 the statement. I may have an objection if there is a 3 follow-up question but I -- 4 COMMISSIONER SIDNEY LINDEN: Well, we 5 haven't heard the followup question so, you don't have an 6 objection to that question? All right. 7 Unfortunately Mr. Strosberg your comments 8 don't get picked up by the transcript unless you speak 9 into the mic. 10 MR. HARVEY STROSBERG: I don't -- if the 11 Witness is being asked a subsequent question I don't have 12 a problem. It was the -- it was the wind-up that I was 13 concerned about, not the pitch, about the long 14 introduction about Ms. Hutton and everything else which, 15 in my submission, is utterly inappropriate. 16 If -- if the question -- if the Witness is 17 being asked to answer only the last question without any 18 regard to the wind-up, I don't have any objection. 19 COMMISSIONER SIDNEY LINDEN: Do you want 20 to ask the question without the wind-up please. 21 MR. MURRAY KLIPPENSTEIN: Certainly 22 23 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 24 Q: Were you aware, at around the time of 25 the Premier's boardroom meeting, of statements being made
1521 to civil servants and others to the affect that the 2 Premier wants them out of the Park in a day or two (2). 3 A: I -- I was not aware of statements. 4 Q: All right. And when you left the 5 Premier's meeting, did you have an understanding of when 6 the injunction would either attempt to be obtained or 7 likely be obtained? 8 A: I did not. 9 Q: All right. We've heard evidence that 10 Ms. Christie in the Ministry of the Attorney General, 11 after discussion with Mr. Taman, attempted to actually 12 have the injunction heard that afternoon on the 6th in 13 Toronto. 14 Did you become aware of -- were you aware 15 -- were you aware of that at any point, then or now? 16 A: I was -- I was not. 17 Q: Okay. And at some point the -- the 18 intention appeared to have changed from an injunction 19 application that afternoon in Toronto on the 6th to that 20 evening on the 6th in Sarnia. 21 Were you aware that that was happening? 22 A: I was not. 23 Q: All right. And did you give any 24 instructions with respect to what would be done with the 25 injunction order when it was obtained?
1531 A: I gave no instructions. 2 Q: All right. And did Mr. Taman or Ms. 3 Christie or anybody talk to you about what they should do 4 with an order if they got one on the afternoon of the 5 6th? 6 A: They did not. 7 Q: All right. Were you asked or briefed 8 with respect to what would be done with an injunction 9 order if it was obtained on the evening of the 6th? 10 A: I was not. 11 Q: All right. Do you recall any 12 discussion about what would be done with an injunction 13 order if it was obtained on the morning of the 7th? 14 A: I was not. 15 Q: All right. 16 17 (BRIEF PAUSE) 18 19 MR. MURRAY KLIPPENSTEIN: A moment's 20 indulgence, Commissioner. 21 I don't know if you have a plan about the 22 timing for the afternoon but -- 23 COMMISSIONER SIDNEY LINDEN: Well, I'd 24 like you to carry on. 25 MR. MURRAY KLIPPENSTEIN: Okay, yes.
1541 COMMISSIONER SIDNEY LINDEN: See if you 2 can finish, if possible, before the break. 3 4 (BRIEF PAUSE) 5 6 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 7 Q: We've heard evidence, and for 8 convenience I'm going ask you to turn, in your binder, to 9 Tab 22 which is Inquiry document 1011749, Exhibit P-742. 10 A: 22? 11 Q: Tab 22. 12 A: Yes. 13 Q: And we've heard evidence that these 14 are the handwritten notes of Elizabeth Christie on the -- 15 at the IMC meeting of September 5th, 1995. 16 A: Yes. 17 Q: If you could turn several pages in, 18 in those notes, to a page that has some doodles at the 19 top, including a face. 20 21 (BRIEF PAUSE) 22 23 A: Yes. 24 Q: And if you look at the bottom of that 25 page, there's an asterisk line which says:
1551 "Strategic imperative. This government 2 treats non-Aboriginal people and 3 Aboriginal people the same." 4 And I can advise you that the notes of Ms. 5 Korol or Korol and Ms. Prodanou have essentially the same 6 statement and one of them testified that that statement 7 was made by Ms. Hutton. 8 Now, would you agree with me that, as a 9 general statement, as it appears here, the statement, 10 "this government treats non-Aboriginal people and 11 Aboriginal people the same," was not, in fact, the policy 12 of your government and your department. 13 Is that fair? 14 MS. ANNA PERSCHY: Excuse me. 15 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 16 Perschy? 17 MS. ANNA PERSCHY: I have an objection. 18 I'm not sure how this Witness can be asked questions with 19 respect to comments that may have been made at a meeting 20 in which he didn't attend. 21 It's very difficult for this -- this 22 Witness was not at the Interministerial Committee meeting 23 and he's now being asked questions about this meeting. 24 He wasn't there. 25 COMMISSIONER SIDNEY LINDEN: I don't
1561 really know why you have put the note to the Witness -- 2 MR. MURRAY KLIPPENSTEIN: All right. I-- 3 COMMISSIONER SIDNEY LINDEN: -- you can 4 just put the question to the Witness without reference to 5 the note or the meeting. 6 MR. MURRAY KLIPPENSTEIN: If there's an 7 objection, I'll do that. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. MURRAY KLIPPENSTEIN: I'm trying to 10 provide context -- 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. MURRAY KLIPPENSTEIN: -- or whatever. 13 14 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 15 Q: Well, Mr. Harnick, there's evidence 16 that a statement was made that this government treats 17 Aboriginal and non-Aboriginal people the same, or to 18 phrase it differently here: 19 "This Government treats non-Aboriginal 20 and Aboriginal people the same." 21 Can I take it that, in your view, that 22 wouldn't have been the policy of your government or your 23 department at the time? 24 A: Well, I -- I mean, again, you -- 25 you've quoted somebody who said that and -- and I don't
1571 want to be interpreting what the words of someone else, 2 so -- 3 COMMISSIONER SIDNEY LINDEN: Just forget 4 the quote for a minute and just take the question. 5 MR. MURRAY KLIPPENSTEIN: Fair enough, 6 I'll just -- 7 THE WITNESS: So I'm -- 8 MR. MURRAY KLIPPENSTEIN: -- ask you the 9 question, okay. 10 THE WITNESS: But certainly you have a 11 number of programs that are -- are unique to Aboriginal 12 people. You -- you have land claim negotiations and 13 self-government negotiations that are unique to First 14 Nations. I -- 15 16 CONTINUED BY MR. MURRAY KLIPPENSTEIN: 17 Q: Would treaties be an example of a 18 difference; is that fair? 19 A: Treaties would be something that 20 would be -- that would cover Aboriginal people that 21 wouldn't apply necessarily to others. 22 Q: Hmm hmm. 23 A: So, I mean, I -- I have trouble, you 24 know, I suppose if -- are we asking whether all people 25 have to obey the stop signs, the answer is yes, they do.
1581 But are there -- are there unique issues and programs 2 that -- that involve Aboriginal people? Yes, there are. 3 Q: And it's fair to say that there's 4 unique rights and unique treaties and agreements and 5 unique constitutional provisions as well; that's pretty 6 obvious, right? 7 A: Of course. 8 Q: Yes. And so, as a general statement, 9 to say that your government or your department treated 10 Aboriginal and non-Aboriginal people the same, that 11 simply wouldn't have been true to your understanding; is 12 that right? 13 A: It certainly wasn't true in the 14 places that I worked. 15 Q: And in fact that would be 16 inconsistent with some of the basic legal principles in 17 Ontario and Canada for -- as a general statement; is that 18 fair? 19 A: Yes. 20 Q: Yes. 21 22 (BRIEF PAUSE) 23 24 Q: I think, Commissioner, those are all 25 my questions.
1591 COMMISSIONER SIDNEY LINDEN: Thank you 2 very much. 3 MR. MURRAY KLIPPENSTEIN: Okay. Thank 4 you. Thank you, Mr. Harnick. 5 COMMISSIONER SIDNEY LINDEN: Thank you. 6 I think this would be an appropriate time to take an 7 afternoon break. 8 Do you want to say something, Mr. George? 9 No? 10 This would be an appropriate time to take 11 an afternoon break. Thank you. 12 THE REGISTRAR: This Inquiry will recess 13 for fifteen (15) minutes. 14 15 --- Upon recessing at 3:00 p.m. 16 --- Upon resuming at 3:19 p.m. 17 18 THE REGISTRAR: This Inquiry is now 19 resumed. Please be seated. 20 COMMISSIONER SIDNEY LINDEN: Mr. 21 Scullion...? 22 MR. KEVIN SCULLION: Good afternoon, Mr. 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Good 25 afternoon.
1601 2 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 3 Q: Good afternoon, Mr. Harnick. 4 A: Good afternoon. 5 Q: My name is Kevin Scullion and I'm 6 counsel for the Residents of Aazhoodena, we also know as 7 the Stoney Pointers. 8 And I think I must start by saying that I 9 appreciate your candor and the difficulty it must have 10 been to come forward this morning with what you had to 11 testify about. 12 A: Thank you. 13 Q: But I'm going to ask you what may be 14 an easy question and it may be a very difficult question. 15 But it comes from my clients and -- and the question is, 16 we've been dealing with this Inquiry for some time and 17 this quote that was referred to this morning has been a 18 live issue and raised by Chief Bressette almost a year 19 ago and repeated by a number of witnesses since. 20 And we have a number of documents and a 21 lot of testimony and a lot of transcripts and there's no 22 reference that I see to you making the comment that was 23 attributed this morning. 24 And my question for you is: How come it 25 took 'til today for that to come out, if you can help us?
1611 A: Because no one had ever asked me the 2 question before. And certainly and I, again -- my lawyer 3 may jump up and throw something at me, but it's certainly 4 something that I apprised him of many years ago. 5 Q: And again I appreciate that you're 6 able to make that statement this morning. My clients 7 appreciate that. 8 If I can refer you -- I'm going to take a 9 little bit of a different tact from My Friends and -- and 10 in an effort to avoid duplication and replication as 11 you've -- you've requested. 12 But my clients are particularly concerned 13 in the role of ONAS and obviously the Ministry of Native 14 Affairs. You play a large role in that, at least in 15 terms of explaining the process. 16 And one of the notes that I made from your 17 testimony and certainly from the cross-examination from 18 Mr. Klippenstein on the quote was that something you 19 referred to as a middle proposition. That Premier Harris 20 noted that there was no other way to get the occupiers 21 out of the Park. 22 And obviously my clients take issue with 23 that being the only option and I'd like to explore other 24 options with you, if I could. Before you you have a lot 25 of documents from Commission counsel, but if I can just
1621 turn you to one of your briefing notes at Tab 8. 2 And you testi -- do you have that before 3 you? 4 A: Yes. 5 Q: Okay. That's -- just for record, 6 that's marked as Exhibit Number P-704, Mr. Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 9 CONTINUED NY MR. KEVIN SCULLION: 10 Q: It's Inquiry Document 3001718. 11 And I -- I appreciate that in your 12 examination-in-chief you referred fairly quickly to this 13 as being part of a briefing that would have occurred in 14 or around the date cited of June 29th, 1995. 15 I take it that most of this would have 16 been information that you knew all ready having been 17 critic for four (4) years previous? 18 A: Some of it perhaps. 19 Q: Okay. So there's some of it that was 20 new or could have been new to you in the position that 21 you now occupied as Minister Responsible for Native 22 Affairs? 23 A: Yes. 24 Q: All right. 25 A: This was probably more -- more
1631 detailed than what you were ever -- or what you could 2 learn when you were in the opposition. 3 Q: Okay. I'd like to go through it with 4 a bit of detail with the view to getting to the IMC 5 meetings and just to determine what was expected out of 6 the process. 7 When I look at the overview of the 8 Secretariat, it describes it as performing a number of 9 central agency functions with respect to Aboriginal 10 Affairs in the Province, which I trust is consistent with 11 your understanding of the role of Native Affairs. 12 It seems to provide support to the 13 Minister responsible for Native Affairs, relations with 14 Aboriginal leaders and their communities, the Federal 15 Minister of Indian Affairs and their provincial 16 counterparts. 17 Do you see that? 18 A: Yes. 19 Q: Okay. That's consistent with your 20 understanding of what was required or expected of the 21 Ministry? 22 A: Yes. 23 Q: I then go to the bottom -- 24 MR. HARRY STROSBERG: Sorry, could you 25 just give me the document number again, please?
1641 MR. KEVIN SCULLION: I could. It's Tab 8 2 in the book of documents from Commission Counsel. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. KEVIN SCULLION: The Exhibit is P- 5 704. 6 COMMISSIONER SIDNEY LINDEN: And the 7 document number? 8 MR. KEVIN SCULLION: Just -- if I could 9 have a moment, I'll just -- 10 COMMISSIONER SIDNEY LINDEN: The document 11 number is 3001718. 12 13 (BRIEF PAUSE) 14 15 MR. HARRY STROSBERG: Thank you. 16 MR. KEVIN SCULLION: And I think we're 17 all on the same document now. 18 19 CONTINUED BY MR. KEVIN SCULLION: 20 Q: At the bottom of that document it 21 notes that one of the objectives for: 22 "The Secretary's mandate is to resolve 23 issues of concern to Aboriginal peoples 24 that are within the Province's 25 authority, responsibility, resources
1651 and priorities." 2 Do you see that? 3 A: Yes. 4 Q: I trust that this blockade committee, 5 as it was set up, that was part of the reason that that 6 was put together; is that fair? 7 A: The -- part of the reason that the 8 guidelines were created? 9 Q: That the blockade, as a concept, was 10 put together. 11 A: And, I'm sorry, I may have missed 12 something, but you've referred to a bullet point: 13 "To resolve issues of concern to 14 Aboriginal peoples that are within the 15 Province's authority, responsibility, 16 resources and priorities." 17 And now you're saying -- 18 Q: That that would have been one of the 19 radons for the Blockade Committee? 20 A: I -- I wouldn't take issue with that. 21 Q: Okay. And if I can turn you to the 22 guidelines that you've just mentioned, at Tab 10 -- 23 A: Yes. 24 Q: -- of your book of documents. 25 A: Yes.
1661 (BRIEF PAUSE) 2 3 Q: Now, these guidelines, is that also 4 the protocol that you've referred to in your examination- 5 in-chief? 6 A: Yes. 7 Q: And when you refer to the process 8 that you were undergoing or that you were following as 9 the Minister approving the application for an injunction, 10 this is the protocol that you're referring back to? 11 A: Yes. 12 Q: Okay. I wasn't sure if there was 13 another protocol I should be referring to? 14 A: No, I -- I mean, I call it -- I 15 should call it guidelines as opposed to protocol, but 16 what I'm referring to is guidelines. 17 Q: Okay. So, this is what you're 18 referring to when you say this is the process that we 19 follow in addressing this type of concern? 20 A: Yes. 21 Q: And in particular, I note that 22 paragraph 11, or note 11 on page 2, refers to a number of 23 bullet points from A to G; do you see those before you? 24 A: Yes. 25 Q: It involves defining the problem then
1671 a number of points on involving other parties, third- 2 parties, in the process and then the last bullet point 3 begin recommending that legal action be taken. You see-- 4 A: Yes. 5 Q: -- that? 6 Now, there's been a lot of testimony in 7 this Inquiry, a lot of it in -- as a result of cross- 8 examination and questions we've put to witnesses, that in 9 the course of the IMC meetings, there seemed to be a jump 10 from the defining the problem to the recommending that 11 legal action be taken. 12 A: Yes. 13 Q: If -- if I can see it from a general 14 perspective, I trust that from the Minister's perspective 15 that you expected the Committee to go through all of 16 these options before coming back to you with a 17 recommendation as to what to do? 18 A: That's correct. I would assume that 19 -- that they would canvass -- that all the people on the 20 -- on the Committee would canvass those options. 21 Q: Right. And that's something that was 22 set up. If I understood your testimony correctly, the 23 OPP had input into these guidelines? 24 A: It's my understanding. 25 Q: So, if I was to suggest to you that a
1681 -- a result of the blockade, that the IMC meetings should 2 immediately go to considering an injunction and 3 recommending an injunction, I'd trust you'd say that's -- 4 that's not how we do it? 5 A: Well, you know, I don't know that 6 that, in fact, is what was done. My assumption is that 7 some of these or all of these would have been considered 8 but, in spite of -- given what the situation was, the -- 9 the recommendation was that legal action be taken. My -- 10 my assumption would be that they -- they looked at the 11 other items as well. 12 Q: Okay. I'm going to jump back and 13 forth a little bit, but do you recall anyone suggesting 14 to you that the concept of bringing in third-party 15 intervention had been considered and dismissed? 16 A: I -- I don't have any recollection 17 that in any briefing people brought me a recommendation 18 such as that. 19 Q: Okay. 20 A: I -- I don't think they told me about 21 the recommendations that they had dismissed, but they 22 brought me the recommendation that seemed to be the 23 consensus of the -- of -- of the Committee. 24 Q: Okay. I -- then I take it the 25 appointment of a facilitator or negotiator was also
1691 something that wasn't brought to you? 2 A: It was not. 3 Q: As well, the involvement of the 4 Indian Commission of Ontario; that wasn't something 5 brought to you at... 6 A: No, it was not. 7 Q: And then the last point; seconding 8 Ontario Public Servants on an emergency basis, I'm not 9 really sure what that means, but I trust that that option 10 wasn't brought to you -- 11 A: No, it wasn't. 12 Q: -- as part of the recommendations? 13 A: No, it wasn't. 14 Q: It's not something that you raised 15 with other -- with members of your staff when they 16 brought the recommendations? 17 A: No, I -- I -- they -- I -- I wasn't 18 briefed by, for instance, my direct political staff. The 19 -- my briefing was a briefing that was done by civil 20 servants. I think that they were probably all lawyers 21 who -- who brought this to me. 22 Q: Right. And -- and the discussion was 23 with regards to the injunction and -- 24 A: That's right. 25 Q: -- the process to be employed at that
1701 point in time? 2 A: That's right. 3 Q: I've raised that because we've -- 4 we've raised a number of concerns regarding other options 5 that might have been available, and -- and two (2) 6 instances come to mind and have been talked about by the 7 MNR staff that have testified. 8 And one of those was the Serpent Mounds 9 occupation that occurred on Labour Day Weekend just prior 10 to the occupation of Ipperwash Provincial Park. 11 Do you recall Serpent Mounds -- the issue 12 of Serpent Mounds? 13 A: I -- I don't and I -- I don't know 14 that it ever was something that I was involved with. 15 Q: Well, let me just give you a little 16 oversight. It was an occupation of the Serpent Mounds 17 Provincial Park that took place on the Friday of the 18 Labour Day Weekend. In other words, it required the 19 evacuation of the Park of the campers that would have 20 otherwise been there on the weekend. It was a peaceful 21 occupation and it ended on the Labour Day Monday. 22 I take it from your answers in regards to 23 recalling this issue that ONAS wasn't involved at all? 24 A: That is probably correct. 25 Q: Okay. And -- and we've heard -- at
1711 least we've seen some -- 2 A: Well, I -- I shouldn't say that. 3 ONAS may have been involved. There may have been 4 discussions, for instance, between MNR and ONAS 5 officials, but they didn't involve me. 6 Q: Can I -- can I refer to that more as 7 a ground level participation by ONAS? 8 A: And again I -- it's -- it's something 9 I can't comment on because the Acting Secretary of -- of 10 the Native Affairs Secretariat may well have been advised 11 or involved. I don't know whether the Deputy was 12 involved. So I -- I just don't know. 13 Q: Okay. Well, we've heard from those 14 people and they've indicated their -- their participation 15 in it, but I trust that the -- the IMC -- we've heard 16 that the IMC Committee wasn't convened to deal with this 17 particular occupation. 18 Do you know why that was? 19 A: I -- I don't. 20 Q: Did you ever ask why that wasn't 21 dealt with by the IMC? 22 A: I -- I -- you know, I -- I have vague 23 recollections of -- of being told a little bit about it 24 by -- by MNR, but I -- I have no direct recollections. I 25 mean, it's a long time ago.
1721 Q: I -- I -- 2 A: Are you -- 3 Q: I appreciate it's ten (10) years ago 4 and -- and these questions may come out of the blue for 5 you, but they're important to our clients, because -- and 6 I'll suggest to you that Serpent Mounds was resolved 7 peaceably because the MNR and the OPP dealt with the 8 occupants peaceably. And the occupants left on their 9 own accord on Labour Day Monday which obviously didn't 10 happen in the Ipperwash matter. 11 The second -- 12 MR. HARVEY STROSBERG: I don't know if 13 that's a question, but I'm not sure -- 14 THE WITNESS: There was no question 15 there. 16 COMMISSIONER SIDNEY LINDEN: There wasn't 17 a question there. 18 MR. HARVEY STROSBERG: All right. It's 19 not a question, I can't have an objection. 20 COMMISSIONER SIDNEY LINDEN: I don't 21 think -- 22 MR. KEVIN SCULLION: I better move on. 23 THE WITNESS: But, I mean my only comment 24 is again and -- and I -- I don't know because I probably 25 can't remember whether there were -- whether the -- the
1731 situations were similar or -- or dissimilar. 2 I mean, I don't know whether they're 3 comparables. 4 5 CONTINUED BY MR. KEVIN SCULLION: 6 Q: Okay. And -- and you can leave that 7 up to us for argument at the end of the day. The second 8 instance and -- and I trust that I may have the same 9 answers, was the fishing incident with the Chippewas of 10 Nawash. 11 Do you recall anything to do with that 12 particular issue? 13 A: Very vaguely. And again -- again, 14 that was, I think, seen as an MNR issue and the degree to 15 which ONAS was involved would have been based on MNR's 16 advice. 17 Q: Do I take it that you saw it as a MNR 18 issue as opposed to an Aboriginal issue or would it be 19 both? 20 A: Well, part -- part of the difficulty 21 with the Ontario Native Affairs Secretariat is that 22 they're not a line Ministry. So, that if you -- if you 23 have an MNR, a fishing issue, or a harvesting, hunting 24 issue, that would be -- be seen as an MNR issue. They 25 would have the lead on it. If it was a health issue, for
1741 instance, it would be an issue for the Ministry of 2 Health. 3 And -- and the line Ministries deliver the 4 programs that -- that people receive. 5 ONAS is -- is more of a coordinating body 6 that gets involved if someone comes to ONAS to request 7 their involvement, or the help, or their liaison ability 8 to -- to connect with a line Ministry on a particular 9 issue. 10 And -- and one of the things -- one of the 11 things that I think is -- is topical today is the degree 12 to which the Provincial Government should have full 13 ministries of -- of Aboriginal Affairs as -- as opposed 14 to -- as opposed to being adjuncts to other Ministries or 15 supporting other Ministries that deliver programs. 16 And certainly the -- I'm just -- by way of 17 observation the meeting that took place in -- in Kelowna 18 was -- was a very interesting meeting in that the 19 Provinces became much more directly involved in -- in the 20 things that the Government's including. Aboriginal 21 Governments have decided will be the -- the course in the 22 future. 23 Q: But, I think you've hit on one of the 24 issues that has come up at the Inquiry is whether or not 25 it would have been, or could be helpful to have a
1751 separate Ministry. 2 I take it, in your opinion, it could have 3 been of assistance to have a separate Ministry in that 4 regard? 5 A: I mean, I -- I -- in a very 6 simplistic way, I -- I'd say yes to that. But by saying 7 yes to that, you may have just a myriad of other issues, 8 jurisdictional and otherwise, that -- that come into 9 play. 10 And I think that the steps that were taken 11 in Kelowna were -- were good first steps maybe to start 12 to rationalize some of this. 13 And -- and I think that the recognition of 14 the Chief of the Assembly of First Nations that provinces 15 have a role to play when traditionally the approach is 16 only wanted to deal with the Federal Government, is -- is 17 probably a very -- very positive step and it will be 18 interesting to see what kind of evolution comes from 19 that. 20 You know, I -- I apologize that I don't 21 answer your questions directly, but these are very 22 complicated issues way above me. 23 Q: Right. We're in an Inquiry so I 24 appreciate the answers to the questions that are 25 received. I'll followup one of them, which is the
1761 involvement of the Federal Government. 2 Do you known a member from INAC wasn't on 3 the IMC Committee? 4 A: I do not. 5 Q: Okay. Do you know if they were ever 6 asked to be part of the IMC Committee? 7 A: I don't know that. 8 Q: Okay. 9 A: I don't know the answer. 10 11 (BRIEF PAUSE) 12 13 Q: Now, there's been some reference 14 along the way, and -- and I'm not sure that My Friends 15 are going to have a separate copy of this, of P-303. 16 17 (BRIEF PAUSE) 18 19 Q: I'm told it's at Tab 9. 20 A: Tab 9? 21 22 (BRIEF PAUSE) 23 24 A: Yes. 25 Q: And again, this is something that you
1771 referred to fairly quickly in the examination in-chief, 2 but one part I note, it's dated July the 10th, 1995. 3 And again, just for reference, it's P-303, 4 Mr. Commissioner. It's Inquiry document 1011557. 5 And I take your comments with regard to 6 ONAS being the co-ordinating body, which I trust is in 7 addition to dealing with land claims, which they would 8 deal with separately? 9 A: Yes. 10 Q: So as the co-ordinating body, it also 11 had these -- or the responsibilities that seem to be 12 suggested by this briefing note. 13 If I can refer you to the bottom bullet 14 point. 15 A: Yes. 16 Q: It says: 17 "ONAS, in close liaison with the 18 Ministry of Solicitor General and the 19 OPP, monitors all potential emergency 20 situations and ensures that appropriate 21 steps are taken to avert the emergency, 22 if possible." 23 And again that -- that's referred to in 24 the background part on page 2 where it says. 25 "In most cases a threat to blockade is
1781 made before a blockade actually occurs. 2 [and] This can provide an opportunity 3 to negotiate." 4 A: Where -- I'm sorry, where -- where 5 are you reading that? 6 Q: Page 2. 7 A: Page 2 -- 8 Q: The background, the first -- 9 A: Oh, yes -- 10 Q: -- point. 11 A: -- I see. 12 Q: Do you see the -- 13 A: Yes. 14 Q: Let me just go back over it. It 15 says: 16 "In most cases, a threat to blockade is 17 made before a blockade actually occurs. 18 This can provide an opportunity to 19 negotiate. 20 Often a blockade can be averted if the 21 blockade -- if the First Nation is 22 given another forum for discussing its 23 concerns with the province. 24 Now, you'd agree that the blockades 25 oftentimes arise out of a frustration expressed by a
1791 First Nation with respect to a particular issue. 2 And it's oftentimes a frustration with the 3 Government, correct? 4 A: Yes. 5 Q: And it could be either the Provincial 6 Government or the Federal Government where the 7 frustration arises? 8 A: Yes. 9 Q: And oftentimes, that can lead to 10 something that the Provincial Government has to deal 11 with, such as a blockade of a highway? 12 A: Yes. 13 Q: Okay. In this instance, there was -- 14 well, we've heard a fair amount of evidence that there 15 was knowledge, in advance, that there was potential for 16 an occupation of the Ipperwash Provincial Park. 17 Are you aware of any efforts by ONAS or 18 any other government agency to try to avert that 19 occupation by having some consultation beforehand? 20 A: My -- my -- do I have direct memory 21 of it? I don't. 22 But on the basis of the -- the briefing 23 note that I went through in my examination in-chief with 24 -- with Mr. Worme, I guess it would have been on Thursday 25 -- last Thursday.
1801 I think there was a briefing note that I 2 would have been taken through that indicated knowledge of 3 the -- of what was happening and that the -- the OPP were 4 -- were at the site monitoring and -- and dealing with 5 the issue that ONAS was available for any -- for any 6 assistance that they would -- that they would request and 7 that MNR was also involved, being the -- the operator and 8 owner of the Park. 9 So I think that there was -- that there 10 was that kind of oversight there and I -- my 11 understanding would be that it was really being dealt 12 with by the line Ministries who were at the -- at the 13 site or near the site. 14 Q: Okay. One point that's come up over 15 and over again in the Inquiry is the fact that the Stoney 16 Point group is not recognized by Indian Affairs as being 17 a First Nation. 18 You're aware of that? 19 A: Well, I -- I -- in -- in a general 20 sort of way. 21 Q: Okay. 22 A: And I know that -- that they are, I 23 believe, seen as part of the Kettle and Stony Point First 24 Nation. 25 Q: I -- I appreciate that, but they do
1811 consider themselves, and there's been evidence from many 2 of the members, that they consider themselves to be 3 separate in terms of Stoney Pointers. 4 And my only question was in terms of a 5 general way, whether or not that would preclude ONAS from 6 dealing with the Stoney Pointers directly or would they 7 have to go through the Kettle and Stony Point First 8 Nation? 9 A: The -- the answer is: I -- I don't 10 know. What I -- what I do know is that the chief of the 11 -- the Kettle and Stony Point First Nation would, I 12 think, appropriately have to be involved. And I don't 13 know -- and again the -- the politics of -- of the 14 community are -- are something I don't know a lot about, 15 but I suspect that -- that there would be some issues 16 around that. 17 Q: Okay. But you -- 18 A: And -- and I -- and I think that from 19 the point of view of -- of a government it -- it's 20 difficult to -- it becomes more complicated and more 21 difficult to be involved in a situation when internally 22 there -- there are jurisdictional issues -- 23 Q: Oh, I would -- 24 A: -- that -- that are -- 25 Q: -- I would agree. I would suggest to
1821 you that this was a difficult issue because you were 2 dealing not only with the First Nation but also the group 3 that consider themselves Stoney Pointers -- 4 A: Yes. 5 Q: -- as well as the Federal Government 6 with respect to the Army Camp lands and the Provincial 7 Government with respect to the Park. 8 A: Yes. 9 Q: Would you agree with me that it was - 10 - it was a little more complex than your usual issues or 11 -- or another issue that may have crossed your desk? 12 A: Oh, I -- I would certainly agree with 13 that. 14 Q: Okay. Obviously there -- there were 15 many things happening that were all adding to the 16 complexity. 17 Okay. Leading into the Labour Day Weekend 18 I trust you had a general idea of what was going on at 19 Ipperwash in terms of the occupation of the Army Camp and 20 the perceived threat to the Park? 21 A: Well, just based on the briefing 22 notes that -- that you've seen, I mean that -- that's 23 what would have been put in front of me. Do I have any 24 direct recollection or -- or remembrance of that? I 25 don't.
1831 Q: Okay. I -- I'm just trying to see 2 the approach that you had to it because we've heard that 3 in the course of the IMC meeting there are suggestions 4 that the IMC, the group forming the -- the participants 5 in the meeting were not to consider this as an Aboriginal 6 issue. 7 Did you consider this to be an Aboriginal 8 issue, this occupation of Ipperwash Provincial Park? 9 A: Yes. I -- I would have. 10 Q: Okay. In addition to a law and order 11 issue? 12 A: Yes. 13 Q: Okay. And I raise that because I go 14 back to your guidelines that we've just talked about with 15 regards to number 11 Tab 10. 16 A: Tab 10, yes. 17 Q: Number 11, addressing those different 18 bullet points. 19 And would you agree with me that in this 20 particular situation, that we've described as both an 21 Aboriginal issue and a law and order issue, the 22 consideration of all of those bullet points would have 23 been an important part of the IMC meetings? 24 A: Well, certainly I think -- I think 25 that in defining the problem you -- you would -- you
1841 would have to, I think, agree that while you could look 2 at it very narrowly as a law and order issue, if you're 3 going to define the problem as -- as you're obligated to 4 do, I think you'd have to do as you wanted to try -- if 5 you were going to try and work your way through it you 6 learn about all of the -- all of the complicated issues 7 that you've put to me. 8 So I -- I can't see how you couldn't think 9 that there were Aboriginal issues here. 10 Q: It's more than simply removing people 11 from the land? 12 A: Well, I think -- but again -- again, 13 you know, and -- and this is obviously something that -- 14 it becomes an issue for the Commissioner, but that is the 15 -- the issue of not getting involved in negotiations 16 until -- in substantive negotiations until the -- the 17 blockade is -- is lifted or until the occupation is 18 ended. 19 And then -- and then speaking about this - 20 - how to resolve the substantive issues. 21 Q: Right. But again that doesn't 22 preclude sending somebody to talk to the occupiers about 23 setting up a process to do all of that after the 24 occupation? 25 A: Well again, I mean again, it -- it's
1851 -- and maybe it is a problem with the idea of what is 2 substantive negotiations. And if you start talking about 3 the problem of how you're going to -- going to get around 4 to doing that, you know, where -- where do you draw that 5 line. 6 And it may well be that one of the 7 recommendations that should be looked at is -- is around 8 the issue of what constitutes substantive negotiations. 9 And again, I don't mean to make light of it but I -- I 10 think it's a difficult issue. 11 Q: Right. And all of what I've raised 12 with you are what I would suggest ways of having the 13 people occupying the area in question, leaving 14 voluntarily. 15 Do you agree with -- that that -- 16 A: Well I -- I, you know, whether and 17 again I -- I -- we're speculating about whether any of 18 these processes would have -- would have been successful. 19 And I don't want to speculate about that. 20 Q: Right. But that's the goal of 21 employing those processes is to have them leave 22 voluntarily. 23 A: I -- I'd agree, I agree with that. 24 Q: Okay. Well, that brings me back to 25 where I started which was when we said there's no other
1861 way. I'll suggest to you that once you resign yourself 2 to removing the people, that there was only two (2) ways 3 of doing it. 4 One is using the injunction method and the 5 other is for the police to do what they need to do with 6 respect to criminal charges? 7 A: Well certainly -- certainly we -- it 8 was the advice of the Interministerial Committee and the 9 lawyers that briefed me, that the -- the best way to 10 proceed here given these circumstances was the 11 injunction. 12 Q: Right. And by the time it reached 13 the dining room, the other options were not part of the 14 recommendation that was being taken to the Ministers and 15 the -- 16 A: Use of -- use of the criminal law and 17 laying charges? 18 Q: Third-party negotiators, ICC -- 19 A: Well -- 20 Q: -- any other third party. 21 A: No. A minute ago though you -- you 22 indicated that -- that by the time it reached the dining 23 room it was a choice between and I gather the reason 24 you're saying that is because what we're talking about 25 legal action.
1871 And the -- the two (2) types of legal 2 action that you're talking about are criminal charges and 3 the injunction. 4 Q: Yeah. And I appreciate your evidence 5 regarding the criminal charges and the fact that that was 6 not part of the consideration of the Committee. 7 A: No. And I think that the -- the 8 right approach was employed there. I mean that's an 9 issue for police as opposed to -- and police lay charges. 10 Government doesn't direct police to lay charges. 11 But -- look I -- I think -- I think that 12 it indicates that the Committee has discretionary powers 13 to do a number of things. And -- and one of the things 14 that -- that might be realistic in -- in terms of 15 recommendations would be that certain of these things 16 should -- should be -- there should be more emphasis put 17 on them. 18 Maybe they shouldn't be seen as 19 discretionary. Maybe they should see -- be seen as a 20 step by step process. I don't know. I mean I don't know 21 whether that's realistic in every situation. 22 Q: Okay. 23 A: But -- but I -- I think that that's 24 again those are realistic issues for the Commissioner to 25 be looking at.
1881 Q: Okay. My last area of questioning is 2 simply with respect to your recommendation. And -- and 3 my note was that you have a member or a participant from 4 the Chiefs of Ontario on the Blockade Committee in order 5 to have someone who could be trusted to speak with the 6 occupiers. 7 Now, does that -- do I take from that that 8 you didn't see anybody on the IMC Committee as fulfilling 9 that role as being in the position to do that type of 10 activity? 11 A: Yes. I think that so many of these 12 issues revolve around the concept of trust and the 13 ability to have somebody to talk to, so that you would be 14 prepared to take the next step. 15 And -- and I think that, you know, 16 certainly -- certainly that gives you what I would think 17 is -- is another option. 18 I think as well, and I don't mean to -- to 19 sound as though I'm criticizing government decisions that 20 were made both -- and this one by the Federal and the 21 Provincial Government, but I think that the -- the role 22 of the Indian Commission of Ontario was, I always 23 thought, a positive role. 24 And I think that both the Federal 25 Government and the Provincial Government, for various
1891 reasons, decided that the Indian Commission of Ontario 2 was no longer necessary. 3 I -- I actually found it to be a positive 4 body and we -- we actually were successful, I think, in - 5 - in dealing with certain inter-jurisdictional issues, 6 and it was a body that you could go to, so. 7 Q: It was an option that was overlooked 8 in this particular instance? 9 A: I don't know whether it was 10 overlooked. It may have been considered and determined 11 that, given the circumstances here, it wasn't 12 appropriate. 13 But in the broader context of 14 recommendations that might be made, one of them may be to 15 take a look at the role of a body like the Indian 16 Commission of Ontario. 17 Q: Okay. But you didn't see ONAS as 18 fulfilling that role that you would now bring in a member 19 from the Chiefs of Ontario to fulfill? 20 A: No, because I think -- I think that 21 this was a guideline that had been developed and -- and 22 that had been used successfully in the past. 23 And I don't know that people have, other 24 than in terms of this Commission, taken a look at those 25 guidelines and said can they be made better, more
1901 responsive, changes -- what changes are necessary. 2 Q: Thank you, Mr. Harnick. 3 Those are all my questions, Mr. 4 Commissioner. 5 COMMISSIONER SIDNEY LINDEN: Thank you, 6 Mr. Scullion. 7 Mr. George, I understand you don't have 8 any questions on behalf of -- 9 MR. JONATHON GEORGE: No questions. 10 COMMISSIONER SIDNEY LINDEN: Mr. Horner, 11 do you have any questions? 12 MR. MATTHEW HORNER: Mr. Commissioner, 13 I've been listening intently to the questioning before me 14 and we've decided that all the areas that we were 15 intending to cover have been covered, so we don't have 16 any questions at this time. 17 COMMISSIONER SIDNEY LINDEN: Thank you. 18 MR. DERRY MILLAR: Commissioner, Peter 19 Rosenthal, as you know, has asked that we hold his cross- 20 examination over until tomorrow as he has been unable -- 21 he is unable to be here today and thought he would not 22 have to -- not be reached given his understanding of the 23 possible times. 24 As you know, Mr. Rosenthal has tried to 25 ensure that he's been covered off either by --
1911 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DERRY MILLAR: -- by going earlier or 3 coming later -- 4 COMMISSIONER SIDNEY LINDEN: Yes. 5 MR. DERRY MILLAR: -- now, or Ms. Esmonde 6 has dealt with the Witness. And so I would ask that we 7 hold Mr. Rosenthal's cross-examination over. 8 Mr. Falconer had requested that he start 9 tomorrow morning as well, and in the circumstances we had 10 no objection to that. And we've been assured by both Ms. 11 Esmonde and Mr. Falconer that they would meet their time 12 limits. 13 And while Mr. Harnick and Mr. Strosberg 14 would like to finish today, they -- they're content to 15 proceed on this basis, so long as the time limits are 16 met, which was really three and a half (3 1/2) hours. 17 Mr. Falconer has now advised me that he 18 will start and he's -- it'll take -- he has about twenty 19 (20) minutes to go and then I would suggest that we 20 adjourn until tomorrow morning. 21 MR. HARRY STROSBERG: I understand by 22 that, Mr. Commissioner, that -- that by the time lunch 23 comes tomorrow that we'll -- Mr. Harnick will be finished 24 and that counsel will abide those time limits and divide 25 that time up among the -- among the remaining counsel?
1921 COMMISSIONER SIDNEY LINDEN: That's the 2 impression that we have. 3 MR. DERRY MILLAR: And it's about three 4 and a half (3 1/2) hours so it would be 12:30/1:00 5 depending on how many questions My Friend Mr. Strosberg 6 might have. 7 MR. HARVEY STROSBERG: I'm sure there 8 will be none if cross-examination is proper. 9 COMMISSIONER SIDNEY LINDEN: That's 10 fine. That's fine. You only want to use a short portion 11 of time now; that there is an area that you can cross- 12 examine now and you won't have to do it tomorrow? 13 MR. JULIAN FALCONER: That's right. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. FALCONER: And -- and I'm trying to 16 use up some of the time efficiently. 17 COMMISSIONER SIDNEY LINDEN: I appreciate 18 that, Mr. Falconer. Let's do that then. 19 MR. JULIAN FALCONER: And I appreciate 20 your counsel's indulgences. 21 22 (BRIEF PAUSE) 23 24 CROSS-EXAMINATION BY MR. JULIAN FALCONER: 25 Q: Good afternoon, Mr. Harnick, my
1931 name's Julian Falconer, as you know. I'm counsel for 2 Aboriginal Legal Services of Toronto. 3 Now, my job, among other things, is not to 4 re-tread old ground, right. But at the same time, in 5 order to get where I need to go in terms of context, I'll 6 be referring to some previous questions you were asked 7 simply to give you context. 8 Now Mr. Klippenstein, for the George 9 Family, had focussed intently on each word of the phrase, 10 "I want the fucking Indians out of the Park." And the 11 direction of my questions is not so much each individual 12 word as to understand a little bit about the evidence you 13 gave in answer to Mr. Klippenstein's questions about it 14 not suggesting to you an animosity towards Aboriginals. 15 Do you remember testifying to that effect? 16 A: Yes. 17 Q: All right. And that's where I'm 18 going and that's beyond what Mr. Klippenstein asked you. 19 You would agree with me that the gist of 20 the discussions, whether it was at IMC or the briefing 21 you received on September 6th, 1995, was to the effect 22 that the occupiers were, in essence, illegally on 23 provincial lands? 24 A: Yes. 25 Q: All right. And, in essence, whether
1941 it was the Premier at the dining room meeting or yourself 2 in the briefing, there was a view of the occupiers as law 3 breakers? 4 5 (BRIEF PAUSE) 6 7 A: That -- that's probably fair. 8 Q: And they were occupying land to which 9 they didn't have title. And in being fair, that would 10 have been a fair impression you had and a fair impression 11 that the Premier had? 12 A: I -- I think it was a correct 13 impression that they did not -- that they were occupying 14 a park that they didn't have title to. 15 Q: And the use of the pejorative, 16 "fucking," perhaps reflects Premier Harris' frustration 17 with their misconduct, is that fair? 18 A: I -- again I don't know. 19 Q: Well you climbed into his head 20 before, that's why I -- I want to be to be careful. 21 A: Well, no, and -- and I don't want to 22 climb into anybody's head. 23 Q: All right. But in answers to -- 24 A: I -- I can only tell you there was a 25 change in his demeanour.
1951 Q: But in answers to questions by Mr. 2 Klippenstein, did you not clearly state that your 3 conclusions about the thoughts the Premier had, both at 4 the time when he was speaking and about his thoughts 5 about Aboriginal peoples, did you not assist Mr. 6 Klippenstein in that way? 7 A: I think I characterized what I 8 thought and I think I characterized the Premier on the 9 basis of certain words or descriptions that were put to 10 me, based on my knowledge of the Premier. 11 Q: All right. And so I'm asking for the 12 same courtesy again, all right? 13 A: I thought we weren't going over old 14 ground. 15 Q: Well, no, I'm asking for the courtesy 16 for you to assist me on his thought processes; not the 17 same thought processes, but others, all right? 18 A: Well, I -- I -- I will -- 19 Q: Same -- same basis, that's all. 20 A: I will assist you on -- on the basis 21 of the character that I know the Premier to be. 22 Q: Thank you. And again, based on that 23 person you know the Premier to be, in part, the 24 pejorative, "fucking," reflected, perhaps, his 25 frustration with the misconduct of the occupiers in
1961 occupying this land illegally? 2 A: It could. 3 Q: All right. And it's fair to say, and 4 this is rhetorical so you'll bear with me, but you know 5 as a lawyer that I have a job to do to check off boxes. 6 It's fair to say that Premier Harris did 7 not say, quote, Get the fucking occupiers out of the 8 Park, right? 9 He didn't say that? 10 A: No, he didn't. 11 Q: And I should put it more 12 appropriately, apples to apples. He did not say, I want 13 the fucking occupiers out of the Park, right? 14 He didn't say that? 15 A: No, he didn't. 16 Q: And I should put it more 17 appropriately, apples to apples. He did not say, I want 18 the fucking occupiers out of the Park, right? 19 He didn't say that? 20 A: No. 21 Q: And he didn't say, I want the fucking 22 trespassers out of the Park? 23 A: That's right. 24 Q: And he didn't say, I want the fucking 25 criminals out of the Park?
1971 A: That's right. 2 Q: And he didn't say, I want those 3 fucking people out of the Park, did he? 4 A: No. 5 Q: The word 'fucking' referred to a much 6 larger group, correct? 7 A: I think, you know, and -- the 8 Premier -- the Premier made the statement perhaps in 9 anger, in frustration, and I think he regretted the 10 statement that he made. 11 By the change in his tone, he gave me the 12 indication that he made a mistake, that he acknowledged 13 it and -- and then made the -- the subsequent comments 14 that he did. 15 Q: And to be fair, and not repeating 16 what Mr. Klippenstein did with you, that view you have of 17 his remorse, may I call it remorse? 18 A: You may. 19 Q: Okay. That view you have of his 20 remorse is borne of your knowledge of him as a person? 21 A: Yes. 22 Q: All right. 23 A: And -- and the fact -- and the fact 24 that his demeanour changed. 25 Q: But --
1981 A: And as a result of that, and as a 2 result of a much softer approach I -- I read that as -- 3 as being his way of -- of dealing with what he had said 4 earlier. 5 Q: But you'd agree with me, and I think 6 you and I do agree, that's inextricably linked. The tone 7 or change in -- in mood combined with your knowledge of 8 the man, agreed? 9 A: Yes. 10 Q: Now going back to my question, I had 11 raised with you that the term 'fucking' referred to a 12 much larger group, agreed? 13 A: Well, I -- 14 Q: I'd asked you that and you said, I 15 think it was about frustration, I think it was about 16 anger -- 17 A: I -- I -- 18 Q: -- but I didn't actually get an 19 answer to my question. 20 The term 'fucking' referred to a much 21 larger group, correct? 22 A: No, I think what he was saying was -- 23 his reference was to the occupiers and to the situation 24 that was causing him the frustration. 25 Q: Well, and I do --
1991 A: He -- he -- 2 Q: -- hear your explanation. 3 A: And I mean, obviously, you want me to 4 interpret that somewhat more broadly and -- and I won't, 5 'cause I don't know. 6 Q: Well, let's go back to the words. 7 The term was 'fucking Indians', yes? 8 A: Yes. 9 Q: So you'd agree with me that's a 10 larger group than the occupiers? 11 A: Well, no I -- my -- my opinion is 12 that he was referring to the people that were occupying 13 the -- the Park who were the source of his -- his 14 frustration. 15 Q: Did, subsequent to the utterance of 16 this statement, at any time during the dining room 17 meeting, did he say, When I said I want the fucking 18 Indians out of the Park, you know I wasn't talking about 19 Indians generally, I was talking about the occupiers and 20 I shouldn't have used the word 'Indians'. 21 Did he any -- at any time say that? 22 A: No, but I -- I didn't think he had 23 to, for me to come to the conclusion that I did. 24 Q: And fair enough, but I didn't 25 actually ask you if he -- if he had to. I just want to
2001 know, I want to confirm he didn't say that. 2 Now, I want to go back and ask you, sir, 3 what I was asking you about was the language used about 4 the larger group. 5 It wasn't what you took from the language, 6 I -- Mr. Klippenstein worked with you on that and he 7 asked you a lot of questions. 8 9 I'm asking you different questions. 10 Having accepted what you say you took from it, the point 11 is the words you heard referred to a larger group than 12 occupiers or lawbreakers. 13 A: No, they didn't. No, it -- 14 Q: All right -- 15 A: -- referred to the situation that we 16 were -- that we were dealing with. 17 Q: Thank you. 18 COMMISSIONER SIDNEY LINDEN: Just a 19 minute. 20 MR. JULIAN FALCONER: I have your answer. 21 COMMISSIONER SIDNEY LINDEN: Just a 22 minute. 23 Yes, Mr. Strosberg...? 24 MR. HARRY STROSBERG: I was just going to 25 say, the same question, with editorial, doesn't help us.
2011 Putting the question, hearing the answer, hearing it 2 twice should be enough. We don't need it three (3) 3 times. 4 COMMISSIONER SIDNEY LINDEN: Thank you, 5 Mr. Strosberg, let's just carry on. 6 MR. JULIAN FALCONER: Well, with respect, 7 I'm going to leave Mr. Strosberg's editorial about my 8 editorial out of it and simply say I was satisfied that 9 Mr. Harnick tried his best to answer my question and I 10 was moving on. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 MR. JULIAN FALCONER: So, I'm not sure 13 that was necessary. 14 COMMISSIONER SIDNEY LINDEN: Thank you, 15 Mr. Falconer. 16 17 CONTINUED BY MR. JULIAN FALCONER: 18 Q: Let's leave aside the propriety of 19 the term "Indians" in government circles in 1995 for a 20 moment 21 because I want to go back to that. 22 But I just want to understand, would you 23 agree with me that however you took the term 'Indians' as 24 it related to the term used by the -- the unfortunate 25 term used by the Premier at the time?
2021 Would you agree with me that the term 2 Indians generally is seen as applying to an entire ethnic 3 or racial group? Would you agree with me? 4 A: No. I -- I again, you're asking me 5 the same thing and -- and I am -- I am -- the Premier had 6 one issue and the issue was the frustration with the 7 occupation and -- and I would not go beyond saying that 8 that was the reference that he was making and that -- 9 that as I said before, he knew it was wrong. 10 COMMISSIONER SIDNEY LINDEN: Now, you've 11 asked the question and you got an answer. 12 MR. JULIAN FALCONER: Yes, thank you, 13 that's fine. 14 COMMISSIONER SIDNEY LINDEN: That's fine 15 16 CONTINUED BY MR. JULIAN FALCONER: 17 Q: Now, I anticipate based on the advice 18 of Commission counsel all right? I anticipate that the 19 Deputy Solicitor General at the time, Dr. Elaine Todres 20 will testify that at the same meeting at the Premier's 21 dining room on September 6th, 1995, she hear former 22 Minister of Natural Resources, Christopher Hodgson, tell 23 those present to quote: 24 "Get those fucking Natives out of my 25 Park". Close quotes.
2031 Now, Dr. Todres will also testify I am 2 told, that the Premier appeared agitated and annoyed and 3 commented that he wanted the situation resolved quote: 4 "Within twenty-four (24) hours." Close 5 quotes. 6 Right? 7 That is evidence I anticipate to come from 8 Dr. Todres, the Deputy Solicitor General. All right? 9 A: Yes. 10 Q: Now do you recall Dr. Todres? 11 A: Yes. 12 Q: All right. And you had dealings with 13 her? 14 A: I -- I really only met her -- I may 15 have met her informally on other occasions. But I -- I 16 believe the first time that I met her was a day or two 17 (2) before when we -- we had coffee with her. 18 Q: You'd agree with me that the 19 sentiment, 'Get those fucking Natives out of my Park', 20 has a strong similarity to the sentiment you've shared 21 with us today? 22 A: Well again, I -- I didn't hear nor do 23 I recall that comment. So you're asking me to comment on 24 evidence that's anticipated and that I didn't hear at a 25 meeting that I was at.
2041 Q: Yes. 2 A: So I'm not going to comment on it. 3 Q: Well with great respect, sir, I've 4 seen you do this a couple of times. Your counsel will 5 rise and make objections. The Commissioner will rule but 6 you -- you don't enjoy that extra privilege of making a 7 determination. 8 MR. HARVEY STROSBERG: Well, excuse me -- 9 MR. JULIAN FALCONER: So, I'm going to 10 ask you the question. 11 MR. HARVEY STROSBERG: Let me -- let me 12 object. 13 MR. JULIAN FALCONER: No, I'm asking a 14 question and I'm going to finish my question. 15 MR. HARVEY STROSBERG: Let me -- let me-- 16 MR. JULIAN FALCONER: Mr. Strosberg 17 doesn't own the floor. 18 COMMISSIONER SIDNEY LINDEN: I have a 19 hard time hearing two (2) people. 20 MR. JULIAN FALCONER: I am asking a 21 question and I'd ask the right to finish the question. 22 Mr. Strosberg can make his objection. 23 MR. HARVEY STROSBERG: He's already made 24 the -- 25 MR. JULIAN FALCONER: No, I have not made
2051 my question and I'd ask the right to finish the question 2 before he makes his submission. 3 COMMISSIONER SIDNEY LINDEN: I know that 4 I can't hear both of you at the same time. 5 MR. JULIAN FALCONER: Now, I'm going to 6 finish my question and I'd ask, Mr. Commissioner, my 7 question that Mr. Stosberg hasn't even allowed me to 8 finish. 9 10 CONTINUED BY MR. JULIAN FALCONER: 11 Q: Now I'm not asking you, sir, to tell 12 me what you thought of Mr. Hodgson's statement, I am 13 asking you to -- based on the phrase I've just read to 14 you, would you agree with me that it strikes a strong 15 similarity to the phrase you testified to? That is my 16 question. 17 A: What you're -- 18 COMMISSIONER SIDNEY LINDEN: Stop. Don't 19 answer the question, your counsel's on his feet. 20 Yes, sir? 21 MR. HARVEY STROSBERG: Thank you. The -- 22 I'm wondering, sir, two (2) points. The first is I do 23 object to the question. The witness didn't hear the 24 statement. The witness is not in a position to say that 25 the statement took place.
2061 And the question of whether or not there's 2 any similarity in -- in tone, substance is a matter that 3 you'll deal with at the end of the day. It's not a 4 matter for this Witness' opinion, that's the first point. 5 The second point is that it would be very 6 helpful if counsel instead of giving an explanation as to 7 the motivation of every question that he's going to ask, 8 just asks the question. 9 And what I've heard here is an explanation 10 for the question and then a question. 11 COMMISSIONER SIDNEY LINDEN: Yes. 12 MR. HARVEY STROSBERG: And I -- I make 13 both those points and I -- I'd ask, Your Honor, to direct 14 counsel just to ask the question, not explain why he's 15 asking the question. 16 COMMISSIONER SIDNEY LINDEN: Thank you, 17 Mr. Strosberg. 18 Do you have any comment, Mr. Worme, before 19 I move on? 20 MR. DONALD WORME: I suppose I do have a 21 bit of a problem with the manner in which Mr. Falconer 22 puts the question forward. Because it seems to depend 23 upon, again anticipated evidence that I think I agree 24 with Mr. Strosberg in the sense that it isn't evidence 25 before this.
2071 And at the end of the day there will have 2 to be a decision as to whether or not you accept as a 3 finding that such statement was in fact made. And I'm 4 not sure it really helps beyond that. 5 COMMISSIONER SIDNEY LINDEN: Let's back 6 up. Where are you, Mr. Falconer? 7 MR. JULIAN FALCONER: I can -- I can just 8 move on. 9 COMMISSIONER SIDNEY LINDEN: You can just 10 move on? 11 MR. JULIAN FALCONER: I can move on. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. HARVEY STROSBERG: I'm wondering if I 14 can get a ruling on the -- on the question -- 15 MR. JULIAN FALCONER: You know, I -- I'm 16 trying to use the time efficiently. I'm not sure doing 17 hypothetical moot rulings is going to get us anywhere. 18 COMMISSIONER SIDNEY LINDEN: No, I'm not 19 going to do a hypothetical ruling. You've decided to 20 move on and I'm satisfied with that. It's now quarter 21 after and you indicated you were only going to be about 22 twenty (20) minutes. 23 MR. JULIAN FALCONER: Yeah. I've got 24 about -- well, this -- I've got about five (5) minutes. 25 COMMISSIONER SIDNEY LINDEN: With some
2081 objections. 2 MR. JULIAN FALCONER: Yes. 3 COMMISSIONER SIDNEY LINDEN: Let's get to 4 the end of today. 5 MR. JULIAN FALCONER: Thank you. 6 7 (BRIEF PAUSE) 8 9 CONTINUED BY MR. JULIAN FALCONER: 10 Q: You have spoken to your knowledge of 11 the Premier and you've spoken to what you interpreted as 12 his mood and commented that they were -- they were linked 13 in your conclusions. 14 Can you assist me on, for example, the 15 extent of the personal knowledge of the character and 16 personality and history of Michael Harris that Ron Fox 17 would have had? Would you know anything about that? 18 A: Well, I -- I don't know what -- I 19 mean I know Ron Fox made some remarks. I don't know what 20 they were based on. I don't know whether they were based 21 on meetings that he had been to that -- that I was not 22 at, but certainly Ron Fox is entitled to his opinion and 23 he gave it. 24 Q: No, sir, but I've asked you: Do you 25 know anything about how well Ron Fox knew Mike Harris as
2091 of September 6th, 1995? 2 A: I -- I don't know that. 3 Q: Fair enough. Larry Taman was the 4 Deputy Attorney General and would have occupied that 5 title prior to the appointment of your government, 6 correct? 7 A: Yes. 8 Q: And do you know if Larry Taman and 9 Mike Harris enjoyed a history together, prior to June 10 1995, of any kind? 11 A: I don't know that. 12 Q: All right. And so it is entirely 13 possible, or to the best of your knowledge Larry Taman 14 wouldn't have know Mike Harris the way you knew him? 15 A: That's probably true. 16 Q: All right. So that would be at least 17 two (2) people that wouldn't have had the advantage you 18 had in interpreting the term 'I want the fucking Indians 19 out of the Park', correct? 20 A: Yes. 21 Q: And the people that don't have the 22 advantage you have, you'd agree with me they are left 23 with the words and then the change in tone? 24 A: That's right. 25 Q: And would you agree with m, even if -
2101 - and this is a hypothetical, but even if an individual 2 had not in any way changed their mind, that they still 3 wanted quote/ unquote, "the fucking Indians out of the 4 Park," but realized what they said was wrong, they may 5 well change their tone but have the same desire; that 6 that's possible too, agreed? 7 A: Well, I -- I can only comment on that 8 based on the course of action that was agreed upon. And 9 -- and the course of action that was agreed upon was to 10 seek the injunction because there was a recognition that 11 you couldn't get the occupiers out of the Park; there was 12 no way once they were already in the Park. 13 Q: In your -- and -- and tomorrow 14 morning we'll go directly to your point about the course 15 of action chosen. Without treading old ground we'll go 16 directly to your point about the course of action chosen 17 and -- and what it shows us, all right? 18 But right now I want to ask you something. 19 In your brief as Minister of Native Affairs and indeed in 20 your subsequent private practice, you've had to use 21 terminology to describe First Nations or Aboriginal 22 persons routinely, correct? 23 A: Yes. 24 Q: And I am not being facetious with 25 you, sir, but you generally don't refer to them as
2111 Indians? 2 A: I mean, I've heard -- I've heard 3 Aboriginal people refer to themselves as Indians. 4 Q: And -- 5 A: So I -- I -- you know again -- 6 Q: Yes? 7 A: -- I -- I -- your -- I don't know the 8 answer. 9 Q: But you -- but you didn't answer my 10 question, I asked if you did. That was my question. 11 A: I have -- I mean on -- on occasion, 12 depending on my familiarity with the -- with the person. 13 Q: You'd recognize there's a world of 14 difference between an Aboriginal person using the term 15 and non-Aboriginal persons using the term? You do know 16 that? 17 A: Well, I think it's an issue as well 18 of familiarity with people. 19 Q: Yes. Now you, I take it, based on 20 your sensitivities, have determined already that the term 21 'Indian' is viewed in some circles as a term that's 22 imposed on Aboriginal people by others, starting with 23 Columbus and ultimately the Indian Act. 24 You're familiar with that history? 25 A: You can -- you can make that
2121 characterization. I -- I don't know that you're right. 2 You know you've got the Department of Indian Affairs and 3 Northern Development, you've got, you know, which -- 4 which is -- is a name that -- that came along long after 5 the -- the Indian Act. 6 So, you know, again, you're -- you're 7 asking me things that I don't know that I can give you an 8 answer to. 9 Q: Well, again -- 10 A: I mean -- 11 Q: -- as the Minister of Indian -- as 12 the Minister, right? 13 On the issue of the term 'Indian', and as 14 the former Minister of Native Affairs, you are familiar 15 with the fact, and that's all I want is your familiarity, 16 that Indian is a term of art in Federal legislation, 17 that Indians are individuals who registered as Indians 18 under Section 6 of the Act; you know that? 19 A: Yes. 20 Q: All right. And you know that there 21 are many different perspectives within the Aboriginal 22 communities that perceive the term 'Indian' as a status 23 imposed upon them, you know that? 24 A: You can -- I -- I don't disagree with 25 -- with that.
2131 COMMISSIONER SIDNEY LINDEN: Well, this 2 hardly seems like a light matter for us to be ending the 3 day on. 4 MR. JULIAN FALCONER: Fair enough, but I 5 was trying to use up my time wisely. 6 COMMISSIONER SIDNEY LINDEN: Yes, but I 7 think this is a kind of area that -- 8 MR. JULIAN FALCONER: Yes. 9 COMMISSIONER SIDNEY LINDEN: -- requires 10 some time to -- and thought -- 11 MR. JULIAN FALCONER: Fair enough, fair 12 enough. 13 COMMISSIONER SIDNEY LINDEN: -- at the 14 very end of the day, am I not right? 15 MR. JULIAN FALCONER: Okay, fair enough. 16 I have two (2) more questions and I'll close out and 17 we'll deal with it tomorrow. 18 19 CONTINUED BY MR. JULIAN FALCONER: 20 Q: Would you agree with me that Mike 21 Harris didn't speak to you about whether the occupiers 22 represented Indians registered pursuant to Section 6 of 23 the Indian Act? 24 A: Well, no, he didn't. 25 Q: And that the topic of whether they
2141 were registered or not did not come up in the dining 2 room? 3 A: Not that I can recollect. 4 Q: And that the reason you used the term 5 'insensitive and inappropriate' in response to Mr. 6 Klippenstein's questions to describe the terminology used 7 by the Premier is that you know today, and you knew back 8 then, that the term could certainly be viewed by some, 9 whether the man is, the term could be viewed by some as 10 racist language? 11 A: I -- I believe that the Premier made 12 one (1) comment. It was inappropriate, he knew that and 13 that he changed his tone. He changed his demeanour and I 14 -- I don't read more into it than that. 15 And you may, but I don't. 16 Q: I was simply asking you, based on 17 your role as Minister of Native Affairs and the fact, as 18 you put it, you received input from communities across 19 this land, that was your testimony in-chief, you 20 appreciate that the words -- the words 'I want the 21 fucking Indians out of the Park' could be interpreted by 22 some as racist language? 23 The words? 24 A: Well, I -- I -- I'm not going to talk 25 about how some might interpret this. I -- I believe that
2151 Mr. Harris made an inappropriate comment and in the way 2 that he changed his tone and his demeanour, he knew that 3 and it was his way of -- of indicating what he had said 4 was inappropriate, improper and -- and I think he made a 5 mistake. 6 MR. JULIAN FALCONER: I have an 7 obligation, Mr. Commissioner. I'm -- I'm finished with 8 my question. I have an obligation to accept that that's 9 where Mr. Harnick wants to leave the answer. 10 My client needs to feel free at the end of 11 the day to argue that, in fact, it was his recognition -- 12 COMMISSIONER SIDNEY LINDEN: You can 13 argue -- 14 MR. JULIAN FALCONER: -- that it was 15 racist language, that -- 16 COMMISSIONER SIDNEY LINDEN: You can 17 argue whatever you want. 18 MR. JULIAN FALCONER: No, I know, but 19 it's important. 20 COMMISSIONER SIDNEY LINDEN: Well make 21 your point -- 22 MR. JULIAN FALCONER: I've put it -- 23 MR HARVEY STROSBERG: It's a speech now, 24 your Honour. 25 MR. JULIAN FALCONER: I've put it -- it's
2161 his recognition that it was -- 2 COMMISSIONER SIDNEY LINDEN: Make it in 3 your argument -- 4 MR. JULIAN FALCONER: Well, I'm -- my 5 problem is, he answered my question so -- 6 MR. HARVEY STROSBERG: But he has 7 answered the question with respect. 8 MR. JULIAN FALCONER: No, no, I'm allowed 9 to finish sentences. Just because Mr. Strosberg's here 10 today, doesn't mean we don't get to finish sentences. 11 COMMISSIONER SIDNEY LINDEN: No, I -- 12 MR. JULIAN FALCONER: My -- my concern 13 is, that at the end of the day, this witness understands 14 that my client -- 15 MR. HARVEY STROSBERG: This Witness 16 should be -- 17 MR. JULIAN FALCONER: -- is entitled -- 18 MR. HARVEY STROSBERG: -- entitled -- 19 this witness should be -- 20 MR. JULIAN FALCONER: -- an answer -- 21 MR. HARVEY STROSBERG: -- closed down and 22 not make a speech -- 23 MR. JULIAN FALCONER: -- entitled to get 24 an answer -- 25 MR. HARVEY STROSBERG: -- closed down and
2171 not make a speech -- 2 MR. JULIAN FALCONER: -- entitled to get 3 an answer -- 4 COMMISSIONER SIDNEY LINDEN: I'm not 5 going to -- 6 MR. JULIAN FALCONER: -- as to whether he 7 thought it was racist language. 8 COMMISSIONER SIDNEY LINDEN: Mr. 9 Falconer, you asked a question, you got an answer; that's 10 it. 11 MR. JULIAN FALCONER: Thank you. 12 COMMISSIONER SIDNEY LINDEN: Well, let's 13 move on. 14 MR. HARVEY STROSBERG: And I'd just like 15 to make the point that I consider that what counsel has 16 just said is to be utterly inappropriate. 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 MR. HARVEY STROSBERG: It's a speech to 19 the press -- 20 MR. JULIAN FALCONER: Well, now it's a -- 21 MR. HARVEY STROSBERG: And that's what -- 22 MR. JULIAN FALCONER: -- speech, now -- 23 MR. HARVEY STROSBERG: -- it was. 24 MR. JULIAN FALCONER: -- it's a speech 25 from Mr. Strosberg --
2181 MR. HARVEY STROSBERG: Now, counsel ought 2 not to -- 3 MR. JULIAN FALCONER: -- about my 4 speech -- 5 MR. HARVEY STROSBERG: -- not -- 6 COMMISSIONER SIDNEY LINDEN: Are we going 7 to stop or are we going to carry on? I mean, we're not 8 going to move forward if we're going to carry -- 9 MR. HARVEY STROSBERG: And I would -- 10 COMMISSIONER SIDNEY LINDEN: -- manner. 11 MR. HARVEY STROSBERG: And I would hope, 12 Commissioner, that what you would do is that when you 13 tell me or you tell this counsel to stop -- 14 COMMISSIONER SIDNEY LINDEN: To sit down 15 and be quiet -- 16 MR. HARVEY STROSBERG: -- what we should 17 do is -- 18 COMMISSIONER SIDNEY LINDEN: -- that you 19 would do so. 20 MR. HARVEY STROSBERG: Yes. 21 COMMISSIONER SIDNEY LINDEN: I'm telling 22 you both to sit down and be quiet. The day is over, 23 thank you very much. 24 MR. DERRY MILLAR: Commissioner, Mr. 25 Falconer will finish his examination first tomorrow and
2191 then Mr. Rosenthal. 2 COMMISSIONER SIDNEY LINDEN: Do you have 3 something, Mr. Worme? 4 You seem to want to have something to say? 5 Anybody else? 6 Tune in tomorrow 9:00 a.m. We adjourn 7 until tomorrow morning at nine o'clock. Thank you. 8 THE REGISTRAR: This Public Inquiry is 9 adjourned until tomorrow, Tuesday, November 29th at 9:00 10 a.m. 11 12 (WITNESS RETIRES) 13 14 --- Upon adjourning at 4:24 p.m. 15 16 17 18 Certified Correct, 19 20 21 22 _________________ 23 Carol Geehan, Ms. 24 25