OPP continues to cover up

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As Sept. 6 came and went, the beginning of the second decade since the fatal shooting of Dudley George began with a fight over release of information between the Ontario Provincial Police (OPP) and the chief commissioner of the inquiry into the Native activist's death.

The details of the dispute emerged in an order issued by Ipperwash Inquiry Commissioner Sidney Linden. Linden issued a summons requiring OPP Commissioner Gwen Boniface to produce internal discipline files related to a couple of serious racist incidents within the police service. The OPP and the provincial government are fighting the summons, arguing that Linden does not have the authority to demand the production of the material.

One of the two incidents in question is the now infamous tape of OPP Detective Constables James Dyke and Darryl Whitehead talking of baiting a trap for Native people with a case of beer.

Also, shortly after the fatal shooting, OPP officers produced coffee mugs and T-shirts bearing a "Team Ipperwash '95" logo with an arrow through an OPP shoulder patch. The T-shirts featured a horizontal white feather, a symbol of a fallen warrior.

In both instances, informal discipline was applied to the officers and no formal hearing was held under the police act. By issuing the summons, Linden appears to be attempting to see just how seriously the incidents were taken within the OPP administration.

Despite an Aug. 22 deadline imposed by Linden for compliance, the legal fight continued unresolved into October. A similar battle between Ontario's assistant Information and Privacy Commissioner Tom Mitchenson and the OPP has been dragged out for more than a year as the OPP refuses to comply with an order from Mitchenson as well.

But the inquiry hearings into the 1995 police shooting of an unarmed land claim protester continue and new evidence is coming out.

Recent testimony has shown that the then newly elected Progressive Conservative government of former premier Mike Harris was attempting to send a "get tough" message to First Nation protesters with the way it handled the Ipperwash occupation.

Julie Jai, former director of legal services for the Ontario Native Affairs Secretariat, testified that government officials-and the police-were in no hurry to take action to evict the Native protesters from Ipperwash Provincial Park as of the morning of Sept. 6. But after a meeting of senior bureaucrats regarding the occupation of the park-which began about 11 a.m. that day and which saw Debbie Hutton attend as Harris' political representative- things were different. Hutton was Harris' executive assistant.

"The impression that we got from Debbie Hutton was that the premier wanted very immediate action and wanted the occupiers removed within a day or two," Jai said.

She testified it was Hutton who relayed the message that the Harris government did not want the park occupation to be seen as an Aboriginal issue.

Jai mentioned that two lawyers who were working for the Ontario attorney general at the time, Tim McCabe and Elizabeth Christie, had been preparing for a non-confrontational approach, as had been the standard reaction in the past in Ontario when a Native protest occurred.

McCabe, the more senior of the two, was scheduled to testify in late September, after Windspeaker's press deadline. Christie, testifying at the inquiry on Sept. 26, said she recalled that Hutton's remarks at the meeting were surprising.

After leaving the government to work for the Sierra Legal Defense Fund, Christie gave up law to attend medical school at McMaster University in Hamilton and is now interning in Kingston. She said she remembers the meeting vividly.

As commission counsel Donald Worme questioned her, he asked about notes she had made at the meeting and especially about one entry which stated: "Strategic imperative equals this government treats non-Aboriginal people and Aboriginal people the same."

"Why would something lie that stand out in your mind, Dr. Christie?" Worme asked.

"Because it demonstrated to me an unnerving ignorance of constitutional law and the laws of Canada because, as a lawyer, my understanding and knowledge was that-that based on the Constitution and the Charter and jurisprudence-that we don't necessarily treat Aboriginal and non-Aboriginal people the same. There are good reasons and laws that require that we do treat them differently in certain circumstances," Elizabeth Christie replied.

Donald Worme asked if there was any attempt to explain that to Debbie Hutton.

"Yes, to some extent," she answered. "My recollection is that at least one or two people made the point that there are actually circumstances in which we need to treat them differently. I have a recollection of Ron Fox (OPP liaison to the attorney general's office) saying something. And my recollection is that Ron Fox at that point said, 'Well because we have to, because they're different, because there are different rules that apply.' I was certainly startled by the comment that we treat Aboriginal and non-Aboriginal people the same. And my sense was that others in the room were also a bit taken aback at the suggestion."

Worme asked if there was anything else about the way that those comments were advanced that struck her and that she might comment on.

"My interpretation of Deb Hutton's comments was that they were-I sort of interpreted them as being fairly, I don't know, aggressive or they were certainly assertive, very assertive statements.

And the tone to me demonstrated some level of frustration. So, my sense was that she was frustrated with the way we in the group were sort of talking about these issues and were proposing to deal with them," she replied.

Christie's testimony suggests that it wasn't just the premier's assistant who thought it was reasonable to ignore the legal and constitutional reality of Aboriginal rights. That point of view seemed to come right from Mike arris himself.

During the meeting, some members of the group asked if Chief Tom Bressette was willing to help the province obtain an injunction to get the protesters out of the park. Christie said Hutton clearly didn't want that kind of help.

"My interpretation of Deb Hutton's comment was, it doesn't matter if [the chief is] willing to assist or not. You're not going to be putting an affidavit in [from Bressette] because the premier doesn't want to be seen to be talking, to be working, with the Indians," she told the inquiry. "So, we knew at that point that we're weren't going to, even though we might have been able to get an affidavit from the chief, we weren't going to be doing that."

After the inquiry adjourned for the day on Sept. 27, Murray Klippenstein, the lawyer acting for Sam George, Dudley's brother, spoke to Windspeaker. He had spent most of the day cross-examining Christie.

"We are getting a lot of stuff on the table for the first time. Even today, through the testimony of Dr. Christie, we learned for the first time that right after the premier met with his mini-cabinet on Sept. 6 on Ipperwash strategy, the legal staff were instructed to try to get an injunction in Toronto that very afternoon within an hour or two. That shows, apparently, that the premier's pressure to get them out of the park was applied extremely forcefully and extremely quickly," he said.

The revelation that Hutton was arguing that Aboriginal and non-Aboriginal people must be treated the same is a very important bit of information, the lawyer said.

"Deb Hutton said, as a strategic imperative, this government treats Aboriginal and non-Aboriginal people the same. That is a hugely important point because it flies in the face of basic constitutional law. So we have a premier who apparently had a basic policy that's contrary to the Constitution," he said.

Other evidence that Harris played a key role in the events that eventually led to the death of Dudley George is alo emerging, Klippenstein added.

"There's a one-paragraph note by Larry Taman, the deputy attorney general, where his handwriting says, on Sept. 6, 'attorney general instructed by premier that he desires removal within 24 hours.'

That's a very important three-line note because it shows that it was the premier's desire that was at the centre of everything and that he wasn't just wanting an injunction. He wanted removal within 24 hours. So the talk about having things done 'as soon as possible' seems to be a euphemism that keeps coming up again and again and again. But when you look at the bottom line, it's the top leader in the province putting a time limit of 24 hours down on the table," he explained.

We asked if the police would have felt the pressure of the premier's wishes as well.

"Well, he doesn't say the police and that's where the wiggle room, the escape hatch, comes in. He just says, 'I want them out in 24 hours; you folks figure it out.'"

The federal government has no formal presence at the inquiry. Klippenstein sees that as significant.

"No, they're not a party. They've got no representative here," he said. "I think the federal government's absence shouts out loud that they are trying to minimize and box in the extent of this inquiry so that it's only about the events of a day or two. Not at all about the deep, underlying issues such as how treaty lands were finagled away from Indians in the decades past."

Testimony continues at the inquiry in Forest, Ont., a small town northwest of Sarnia. It will be another year before the final report will be complete.

Commissioner Sidney Linden issued a statement on Sept. 12 informing the parties that he anticipates it will take six months to complete his report once the witnesses have all been heard. He had set an informal goal of Dec. 1 for the completion of testimony but, in his statement, conceded the hearings may have to occur into the early part of 2006. That puts the date when the final rep