IN THE MATTER OF Order in Council 1662/2003, dated November 12, 2003; AND IN THE MATTER OF a Commission of Inquiry pursuant to the Public Inquiries Act, R.S.O. 1990, c. P.41, as amended; AND IN THE MATTER OF an Inquiry into the events surrounding the death of Dudley George and the development of recommendations directed to the avoidance of violence in similar circumstances REPLY SUBMISSIONS ON BEHALF OF THE ONTARIO PROVINCIAL POLICE AND ITS SENIOR OFFICERS PART I Mark J. Sandler COOPER, SANDLER & WEST Barristers & Solicitors 439 University Avenue Toronto, ON M5G 1Y8 Tel.: (416) 585-9191 Fax: (416) 408-2372 E-mail: [email protected] Counsel for the Ontario Provincial Police & its Senior Officers 2 Page 2 REPLY SUBMISSIONS ON BEHALF OF THE ONTARIO PROVINCIAL POLICE AND ITS SENIOR OFFICERS PART I Table of Contents I. Overview 3 II. Preliminary Observations 5 III. The Estate of Dudley George and Members of Dudley George’s Family 9 IV. Aazhoodena and George Family Group 84 V. Residents of Aazhoodena (Army Camp) 132 VI. Chippewas of Kettle and Stony Point 137 VII. Chiefs of Ontario 148 VIII. Aboriginal Legal Services of Toronto 154 IX. The Evidence Relating to Ron Fox: Christopher Hodgson, Michael Harris, Deb Hutton 194 X. Christopher Hodgson 199 XI. The Honourable Michael D. Harris 244 XII. Deb Hutton 254 XIII. Province of Ontario 255 XIV. Chief Coroner for Ontario and the Office of the Chief Coroner 258 3 Page 3 IN THE MATTER OF Order in Council 1662/2003, dated November 12, 2003; AND IN THE MATTER OF a Commission of Inquiry pursuant to the Public Inquiries Act, R.S.O. 1990, c. P.41, as amended; AND IN THE MATTER OF an Inquiry into the events surrounding the death of Dudley George and the development of recommendations directed to the avoidance of violence in similar circumstances REPLY SUBMISSIONS ON BEHALF OF THE ONTARIO PROVINCIAL POLICE AND ITS SENIOR OFFICERS PART I I. OVERVIEW 1. The OPP Reply is divided into Parts I and II. This is similar to the approach taken in our original submissions. 2. Since the OPP Reply is designed to respond, where necessary, to the submissions made by other parties, it has been organized into Sections, each of which addresses the submissions made by a particular party to the Inquiry. As a result, where another party has made both Part I and Part II submissions, their submissions may be addressed in two locations. 4 Page 4 3. Often more than one party argued the same point in their Part I Submissions. The point is addressed in the OPP Part I Reply once, and not referred to again unless it is necessary to address some related or subsumed point. As is later explained, a different approach is taken in the OPP Part II Reply. 5 Page 5 II. PRELIMINARY OBSERVATIONS 4. On June 1, 2005, Commissioner Linden conveyed the following about the Inquiry’s non-adversarial quality: …It’s worthy of reminder that a public inquiry is not a civil or a criminal trial. The Commissioner does not make findings of civil or criminal liability, nor does the Commissioner have the ability to impose any penalties. An Inquiry is an inquisitorial, and not an adversarial proceeding. Notwithstanding the separate, and sometimes distinct interests of parties, withstanding [sic] I believe that this fact should continue to guide our behaviour during the course of this Inquiry. In addition, on September 12, 2005, Commissioner Linden had the following to say about the Inquiry’s role in contributing to healing: And finally, I believe the inquiry process can be instrumental in contributing to healing and to building and repairing institutional and individual bridges. I hope all parties feel that we’ve begun to move in this direction and that this can be continued long after the hearing process has been complete. I reiterate my appreciation of Counsels’ efforts to work constructively to meet our goals. [emphasis added] - Comments of Commissioner Linden, June 1, 2005, p. 78 - Comments of Commissioner Linden, September 12, 2005, p. 10 5. The OPP took these comments to heart. It has acknowledged mistakes made at Ipperwash, and drawn upon the perspectives and aspirations of First Nation peoples in its own evolution over the years, and in its recommendations to 6 Page 6 this Inquiry. It came to the Inquiry prepared to contribute to the healing process, as did a number of First Nation parties to this Inquiry, even as we may not agree on all of the issues. 6. Unfortunately, it must also be said that the written submissions of some parties showed little or no real interest in contributing to the healing process. As reflected in the Prologue of our earlier Submissions, healing requires parties – every party – to listen and learn, not just be heard; to be introspective, not just adversarial; to be forward looking, not exclusively fixed on the past. 7. A few examples make the point. The submissions of Aazhoodena and George Family Group (“AGFG”) are often inflammatory and gratuitously adversarial. AGFG, which properly pleads for fairness in the Aboriginal claim process, has no room for fundamental fairness in its treatment of the OPP. It makes the point that the killing of Dudley George led to Deputy Carson’s promotion rather than his dismissal, and urges that his position within the OPP be reviewed. It makes the submission that Deputy Carson is “anti-Native”, which is breathtaking in its outrageousness. It would have been insightful to hear Commissioner Boniface, whose leadership and sensitivity on First Nations issues has been acknowledged by everyone including AGFG, asked to respond to these allegations about her Deputy Commissioner. The language that ties Deputy Carson’s promotion to the killing of Dudley George inflames, rather than heals. 7 Page 7 8. Healing also requires true introspection. For example, AGFG claims that every single military report of misuse of firearms by the occupiers at the Army Camp is tainted and unreliable, an absurd proposition. The point here is not that these facts changed Deputy Carson’s approach in September 1995. On the contrary, Deputy Carson was exceedingly fair in concluding that the occupiers were unlikely to use firearms against the OPP. The point is that responding to Aboriginal occupations and protests is a difficult, complex undertaking. Some of the difficulties arise from the possible intervention of undesirable elements, the refusal to communicate with police, and internal strife within the First Nations community. Finding solutions is not assisted by simply “heaping the blame” for everything – without nuance or understanding – upon the police. First Nations leadership, even while critical of the police, understands this. Too bad AGFG does not. 9. The submissions of the Estate of Dudley George and Members of Dudley George’s Family (“EDG”) were also disappointing. We must say at the outset that Sam George’s foreword to those submissions was balanced and insightful. However, the EDG submissions are replete with characterizations that are baseless. An incorrect report of fires outside the Park becomes a “bogus” report. Mistakes become “fairy tales”. Officers are described as “dangerous pit bulls”. The submissions are so driven to make the case for political interference that they run roughshod over the evidence. We would prefer to focus upon the dignity that Sam George personally brought to this Inquiry, his sensitivity to OPP senior 8 Page 8 officers when their testimony was completed, and upon Mr. Klippenstein’s comments at the end of Deputy Carson’s testimony: Yes, Commissioner. I think I just – on behalf of myself personally, on behalf of – of my client who’s sitting here, Sam George, and I think probably I speak for – for all counsel, I want to express appreciation to the witness, Deputy Commissioner Carson who has made himself available for a very long period for difficult and detailed questioning. And it’s been very important for the overall process of the Inquiry and we do appreciate the toll and strain it was on him and on some of the rest of us as well, but we do want to thank him. - Comments of M. Klippenstein, June 30, 2005, pp. 146-47 9 Page 9 III. THE ESTATE OF DUDLEY GEORGE AND MEMBERS OF DUDLEY GEORGE’S FAMILY (“EDG”) EDG’s Proposed Finding 18: During the course of September 4 to 6, 1995, there were no circumstances on the ground at Ipperwash Park which warranted that the situation be dealt with on an urgent or emergency basis. (p. 128) 10. EDG submits that a number of Deputy Carson’s key operational decisions were not informed by circumstance, but instead were the product of political pressure. EDG points to Deputy Carson’s support of an ex parte injunction as an example: Given the absence of anything on the ground that justified calling the situation an emergency, there is only one plausible explanation for why John Carson was willing to say on September 6, 1995 that there was urgency. He expressly wanted to support the government, and an urgent injunction is what the government wanted. Perhaps unwittingly, he had bought into Harris’ emergency mindset… Leaving aside that Deputy Carson’s support for any type of injunction contradicts EDG’s principal theory that he deployed the CMU to evict the occupiers in the absence of such an injunction, Deputy Carson’s participation in the preparation for the ex parte application had, with respect, nothing to do with political pressure. - EDG Submissions, pp. 96-97 10 Page 10 11. The uncontested evidence demonstrates that Deputy Carson wanted an injunction order before any political pressure is alleged to have been exerted.