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Evidence of Commissioner Fantino. October 17, 2008

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Evidence of Commissioner Fantino. October 17, 2008 1 =========================================================== 1 IN THE MATTER OF THE POLICE SERVICES ACT 2 3 AND IN THE MATTER OF SUPERINTENDENT K. MACDONALD 4 AND IN THE MATTER OF INSPECTOR A. JEVONS 5 6 7 8 DISCIPLINE HEARING 9 10 11 12 13 BEFORE THE PRESIDING OFFICER RETIRED HONOURABLE JUSTICE 14 L.T. MONTGOMERY on Friday, October 17, 2008, at the Orillia 15 GHQ, Orillia, Ontario. 16 17 18 19 APPEARANCES: 20 Mr. B. Gover) For the OPP 21 Mr. O. Rees ) 22 23 Mr. J. Falconer) For Superintendent MacDonald 24 Mr. S. Mathai ) and Inspector Jevons 25 26 27 28 29 30 31 TABLE OF CONTENTS =========================================================== SIMCOE COURT REPORTING (BARRIE) INC. 134 Collier Street, Barrie, Ontario L4M 1H4 Bus: (705) 734-2070; Fax: (705)734-2328 Email: [email protected] 2 =========================================================== 1 Witnesses Page No. 2 COMMISSIONER JULIAN FANTINO, Sworn 15 3 Examination in-chief by Mr. Gover 15 to 119 4 Cross-examination by Mr. Falconer 119 to 249 5 6 7 INDEX OF EXHIBITS 8 9 NUMBER DESCRIPTION PAGE 10 56 Three Notices of Hearing and Particulars........... 10 11 57 Notes of Chief Superintendent Mike Armstrong 12 dated April 18th, 2007 with first page dated 13 November 22, 2006 with business card attached, 14 and note of July 19, 2007.......................... 83 15 58 Transcript of Proceedings January 8, 2008 - 16 Ruling by Superintendent Neale Tweedy..............145 17 59 Page 110 of Superintendent Van Zant's notes 18 from January 5, 2008...............................211 19 20 21 22 23 24 25 26 =========================================================== SIMCOE COURT REPORTING (BARRIE) INC. 134 Collier Street, Barrie, Ontario L4M 1H4 Bus: (705) 734-2070; Fax: (705)734-2328 Email: [email protected] 3 October 17, 2008 ========================================================== 1 Friday, October 17, 2008 (10:08 a.m.) 2 THE ADJUDICATOR: Good morning, gentlemen. 3 MR. GOVER: Good morning. 4 MR. FALCONER: Good morning, Mr. Adjudicator. 5 Mr. Adjudicator? 6 THE ADJUDICATOR: Yes. 7 MR. FALCONER: I would like some assistance, if I 8 can, to start the day. I have had some requests from the 9 media for certain copies of exhibits. My practice has 10 always been, to be honest with you, unless there is 11 something over-ridingly adversarial about my client's 12 interests with the media who have an interest in access to 13 the court system, my practice has been that if I'm asked 14 for a copy of a public exhibit that I can make it available 15 to them if it's requested of me and it's not overly 16 inconvenient to me and my clients. 17 Mr. Gover has raised an issue with me today that 18 he feels that there should be some process or procedure 19 that ought to govern it, and I would be happy to be 20 governed by some direction on it if there is another way to 21 give access to exhibits to the media. I'm talking about 22 properly filed public exhibits that the media are 23 requesting. I'm happy to be governed by however you would 24 like to do it. I'm simply raising the issue because Mr. 25 Gover has raised it with me, and I think as a matter of =========================================================== SIMCOE COURT REPORTING (BARRIE) INC. 134 Collier Street, Barrie, Ontario L4M 1H4 Bus: (705) 734-2070; Fax: (705)734-2328 Email: [email protected] 4 October 17, 2008 ========================================================== 1 transparency, a public proceeding is a public proceeding, 2 but I'm happy to use any kind of protocol that is useful to 3 you. 4 THE ADJUDICATOR: So Mr. Gover, do you wish to... 5 MR. GOVER: I do, and I will be very brief on 6 this issue, Mr. Adjudicator. I have provided the leading 7 case on this subject to Mr. Falconer and it is the decision 8 of the Supreme Court of Canada in Vickery and Prothonotary 9 of the Nova Scotia Supreme Court. It's a decision from 10 that court from, I believe, 1991, and this isn't a perfect 11 copy. As you'll see, we have located this as quickly as we 12 could, but I have flagged for you the portion of the head- 13 note and then the portion of the actual decision that deals 14 with this issue, and it, of course, stands for the 15 proposition that the court, as custodian of exhibits, is 16 bound to inquire into the use to be made of them and is 17 fully entitled to regulate that use. 18 You will see that in what Chief Justice Lamer 19 said for himself, for Justices Wilson, LaForest, Sopinka, 20 Gonthier, and Stevenson in the head-note. And the point 21 made is that such exhibits are frequently the property of 22 non-parties and there is ordinarily a propriety interest in 23 them, and clearly, the Court recognized the importance of 24 freedom of the press and transparency and the desirability 25 of making items available to the media, but suggests that =========================================================== SIMCOE COURT REPORTING (BARRIE) INC. 134 Collier Street, Barrie, Ontario L4M 1H4 Bus: (705) 734-2070; Fax: (705)734-2328 Email: [email protected] 5 October 17, 2008 ========================================================== 1 it ought to be regulated by the court or tribunal. And my 2 only point in relation to this is that it would be 3 appropriate, in my submission, for you to know as the 4 custodian of the many exhibits that have been filed, for 5 you to know -- and to use the terms of this case -- to 6 regulate access to exhibits and -- 7 MR. FALCONER: I don't know if I can help. I 8 mean, I don't have a problem with that. So I think that 9 since we have a full day about evidence and Mr. Gover and I 10 are agreed that if the court thinks there is a protocol and 11 an appropriate way to do this, and frankly, if I don't have 12 to be asked of materials, I'm happy to work with Mr. Gover 13 on this. So I don't think we need to make a lot of legal 14 argument. I don't think Mr. Gover is suggesting any kind 15 of restriction or prohibition that would invoke somebody 16 having to get counsel and come down here on a motion. I 17 think the bottom line is we're all agreed that if there is 18 a protocol the court would like to use, we would be happy 19 to be governed by it. 20 MR. GOVER: Well, thank you. That will 21 abbreviate my submissions. My submission is that this is a 22 matter for you to regulate, and perhaps during a break Mr. 23 Falconer could itemize what has been provided, and that may 24 allay any concerns I have about what has transpired, and 25 then on a going forward basis I propose that such issues be =========================================================== SIMCOE COURT REPORTING (BARRIE) INC. 134 Collier Street, Barrie, Ontario L4M 1H4 Bus: (705) 734-2070; Fax: (705)734-2328 Email: [email protected] 6 October 17, 2008 ========================================================== 1 brought to your attention for determination as necessary. 2 MR. FALCONER: I would be happy to start sharing 3 every step I've taken in the discharge of my brief if Mr. 4 Gover would be happy to start opening his counsel book and 5 tell me what steps he has taken in the last week in the 6 furtherance of his brief. If we're to engage in 7 transparency, I expect that Mr. Gover will tell me when he 8 meets with the Commissioner, he will tell me what 9 instructions he gets over the phone, even the ones he 10 doesn't get by notes. 11 I mean, I get up and I agree to create a protocol 12 with you, Your Honour, in order to do this properly. I 13 don't have a problem with that, but when I agree to 14 something, I really have a problem with it being used as 15 leverage somehow to go and do other things. Now, what I 16 suggest is that we agree on a protocol that will ensure 17 that the media isn't something that either party, either 18 the prosecution has to help out or I have to help out, and 19 that if they want access to exhibits, they have the right 20 person to speak to. That's all I'm suggesting, and I would 21 like to get on with the evidence. We have a long day 22 today. 23 MR. SEGLINS: Mr. Adjudicator, if I might, my 24 name is Dave Seglins. I'm with the CBC. I yesterday asked 25 Mr. Falconer for a copy of the Notice of Motion because it =========================================================== SIMCOE COURT REPORTING (BARRIE) INC. 134 Collier Street, Barrie, Ontario L4M 1H4 Bus: (705) 734-2070; Fax: (705)734-2328 Email: [email protected] 7 October 17, 2008 ========================================================== 1 was difficult to understand the proceedings without it. I 2 have covered these kinds of tribunals, particularly in 3 Toronto. We have never had an issue. We have been able to 4 go and ask for any exhibit tendered, including audiotapes, 5 videotapes, that sort of thing. It has sort of been the 6 open courts principle. I am just standing and rising to 7 say that if there is any attempt to restrict it, or if you 8 are considering that this is a case that requires some sort 9 of restriction, I would just like to put on the record that 10 we would like an opportunity to bring legal counsel to 11 address that.
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