David Migicovsky
David Migicovsky spoke 1679 times across 22 days of testimony.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, Commissioner. My name is David Migicovksy, and with me is my co-counsel, Jessica Barrow, sitting in the second row on my left. We represent the Ottawa Police Service. As the police service for the Nation’s capital, the Ottawa Police Service is very experienced in handling demonstrations, protests, and large events attracting thousands of people. They are a fact of life in this city, and hundreds of them take place annually and are resolved without violence and without a major impact on the community. There is a well-established process, you will hear, that the Ottawa Police Service follows when protests occur. The police must respect the Charter rights of peaceful process, while at the same time, protect the community and uphold public order. To this end, police typically reach out to protestors and work with them in advance to preserve the peace and to minimize community impact. The Ottawa Police, you will hear, followed that well-established process that had always worked with protestors this time as well, and were prepared for an event, but not for the event that occurred. Why? What you will hear is that this protest was unique in Canadian history. The police had little time to prepare. The genesis of the protest had only begun a couple of weeks before it arrived in town and it gained momentum with time. The number of individuals and vehicles participating was difficult to impossible to gauge because it was -- because although the first convoy left the west coast on January 22nd, most of the convoys, because of their geographic proximity to Ottawa, left the day before, and the largest convoy, by the time it reached Ottawa, it was 40 kilometres long and had thousands of vehicles; more convoys followed. That could not have been predicted. The initial response of the convoy and the initial reports that the police received were that it would be peaceful and that most people would leave by the end of the weekend. And although many people and vehicles did leave, many more did not, and some who left returned the following weekend. The protest became dangerous, and the situation became volatile. This was an unprecedented situation, and it required an unprecedented response by the Ottawa Police Service, along with several thousand other police officers from across the country. All of the Ottawa Police Service officers and all of their partners you will hear worked tirelessly and professionally, and that integrated response by the police, led by the Ottawa Police Service and its partners, brought what had started as a protest but become an illegal occupation to a successful resolution. The Ottawa Police Service recognizes the impact on the residents and businesses in the city from the convoy, and that it was significant. What none of the intelligence predicted in the very brief period of time prior to the convoy’s arrival was the level of community violence and social trauma that was inflicted upon the city and its residents. As the demonstration came to an end, Chief Bell told the Ottawa Police Services Board that there will be lessons to be learned to make sure the events of the past are not repeated. You will hear that changes have been made to how the Ottawa Police Service and those events like this and lessons have been learned, and the Ottawa Police Service welcomes the opportunity to learn more through this process as it works to rebuild public trust. Thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Councillors. Good afternoon, Commissioner. In the interest of trying to save some ---
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry.
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David Migicovsky, Counsel (Ott-OPS)
My name’s David Migicovsky and I appear for the Ottawa Police Service. I apologize for that. In the interest of trying to save a bit of time, I’m going to try not to refer to a document, but if you need the document to assist you, I’m certainly happy to call it up. And so I want to start by talking about the January 26th meeting that the Ottawa Police Chief attended with councillors; do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And just, Councillor McKenney, I’ll address my remarks -- some of these remarks to you. And then, when I want to address remarks to Councillor Fleury, I’ll address them to you, again in the interest of trying to save some time so that I don’t have you both answer the same question. And I understand that at that meeting, you were specifically -- and that was the meeting with councillors specifically to let them know about what the situation was coming up; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And, as I understand, at that time, you were told, or the councillors were told that the situation was fluid?
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David Migicovsky, Counsel (Ott-OPS)
And you were also told, or the councillors were also told that the police could not predict what would happen?
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David Migicovsky, Counsel (Ott-OPS)
And you were also told that the number -- that they had certain numbers with respect to the expected convoy but those could change within the hour; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And you -- as a result, Chief Sloly advised that area business would therefore have to make decisions for themselves as to whether to stay open or not?
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David Migicovsky, Counsel (Ott-OPS)
And you understood that was because it was such a fluid situation?
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David Migicovsky, Counsel (Ott-OPS)
And at that meeting, it was also indicated by Chief Sloly that the unpredictable nature -- that this was an unpredictable event; correct?
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David Migicovsky, Counsel (Ott-OPS)
And -- thanks very much. And I want to go forward two days to January 28th. I understand further information was provided to council at that time; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
That would be on the Friday.
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David Migicovsky, Counsel (Ott-OPS)
And I’ll call it up for you if you need the document, Councillor McKenney, but I understand that -- so that was on the Friday and the convoy had started to arrive on Friday; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And the largest one, however, came the following day; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And at that meeting, you were advised by the Ottawa Police that again the situation was very fluid and would continue to change?
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David Migicovsky, Counsel (Ott-OPS)
And I understand on Saturday, January 29th, more information was provided to you. And I wonder if we could call up OPS4225, please. And perhaps we could just scroll down. And I understand, if we look at the -- we see that again you were told, I guess, in the -- I believe in the fifth line, if I’m not mistaken, that the dynamic of the crowd at that time was cooperative but there were isolated incidents. But overall, the crowd, at that time, was peaceful; is that your recollection?
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David Migicovsky, Counsel (Ott-OPS)
You don’t recall seeing it?
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David Migicovsky, Counsel (Ott-OPS)
You wouldn’t have any reason to disagree with that information, would you?
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David Migicovsky, Counsel (Ott-OPS)
That was from Mr. Ayotte at the City.
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David Migicovsky, Counsel (Ott-OPS)
And it looks like it ---
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David Migicovsky, Counsel (Ott-OPS)
But I take it you would have no reason to not trust what Mr. Ayotte said?
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David Migicovsky, Counsel (Ott-OPS)
So, certainly, the information we see was conveyed to lots of people in the City of Ottawa that it was a fluid situation; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that continued to be your understanding from the first meeting with the Chief, that things were changing; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I wonder if we could please turn up OTT1930. That is a chain of emails. And I understand that on January 30th, the Chief provided a further update to councillors; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Sure, if we could perhaps scroll down?
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David Migicovsky, Counsel (Ott-OPS)
Do you have it now?
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David Migicovsky, Counsel (Ott-OPS)
Perfect, thanks. The Chief provided update to councillors.
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David Migicovsky, Counsel (Ott-OPS)
And I see in the first couple of lines that he indicated that there were large crowds but they were being managed at that point in time.
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David Migicovsky, Counsel (Ott-OPS)
And he also indicates that there were some high-risk situations that had been managed by the police?
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David Migicovsky, Counsel (Ott-OPS)
And criminal investigations were undertaken?
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David Migicovsky, Counsel (Ott-OPS)
And he also said -- I wonder if you could scroll down a little further. Yeah, that’s good. He also said, you’ll see -- at the paragraph that starts, “Priorities continue to include…”, you’ll see the next sentence he indicates ---
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David Migicovsky, Counsel (Ott-OPS)
That’s correct. But Diane Dean says -- and this goes to ---
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David Migicovsky, Counsel (Ott-OPS)
--- councillors, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so Ms. Deans says in that paragraph that I just took you to: "This work is resource-intensive and police resources are fully stretched and fully engaged." (As read). Correct?
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David Migicovsky, Counsel (Ott-OPS)
And I take it you had no reason to disbelieve what she was saying to you?
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David Migicovsky, Counsel (Ott-OPS)
And so you didn’t agree when she said it takes, basically, a lot of resources?
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David Migicovsky, Counsel (Ott-OPS)
I see. And you’ll see that in -- just above where it says, “Ending of the demonstration and departure…,” you’re see: "At this time, due to safety concerns, management of the protest and traffic must take precedence. However, these matters will be responded to as resources become available." (As read). You saw that?
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David Migicovsky, Counsel (Ott-OPS)
And so I take it what you understood from that was that the police have to prioritize management of the protests due to safety concerns?
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David Migicovsky, Counsel (Ott-OPS)
And I take it you understood that just as -- I don’t know if you’ve had the unfortunate experience of being in a hospital in recent years but just as in a hospital patients get triaged in emergency, that was going to happen with the police as well.
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David Migicovsky, Counsel (Ott-OPS)
Right. And you understand from the situation in a hospital that sometimes the most pressing and serious problems have to be solved first?
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David Migicovsky, Counsel (Ott-OPS)
And it’s not a question, of course, that somebody else’s problems who’s in the queue are not important but it’s simply a question that there are limited resources; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you understand, obviously, that police also do not have unlimited resources?
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David Migicovsky, Counsel (Ott-OPS)
And you understand as well that ultimately it took approximately another 2,000 police officers from across the country to help end the occupation along with the approximately 1150 active Ottawa Police Service members, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you wouldn’t expect, I take it, for Ottawa Police to have 3,150 officers on staff at all times, correct?
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David Migicovsky, Counsel (Ott-OPS)
It’s a question of what the municipality is prepared to pay and what the taxpayers are prepared to pay in terms of funding of the Police Service, correct?
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David Migicovsky, Counsel (Ott-OPS)
And on January 31st, you attended another meeting, and that is OPS5187? And if we can just -- that was a meeting with the Chief of Police and the Mayor, correct? And if you want to scroll down, you'll see that it appears, Councillor McKenney, that both you and Councillor Fleury were there. You can see at number 4 there’s a reference to something that you said and you see at number 3 there’s a reference to something that Councillor Fleury said.
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David Migicovsky, Counsel (Ott-OPS)
Do you want to go back to the top of the document?
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David Migicovsky, Counsel (Ott-OPS)
It was an update from the Chief and then you’ll see at the bottom there are some references to Councillor McKenney and Councillor Fleury, Councillor Luloff. Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I see there’s a reference in this memo to the fact that there could be massive risks. Would you accept that that is a realistic assessment of what was going on on January 31st, that there would be massive risks in the City of Ottawa and in the Police Operations at that time?
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David Migicovsky, Counsel (Ott-OPS)
Implications to short ---
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David Migicovsky, Counsel (Ott-OPS)
--- medium, and long--term of intervention, especially risk of physical conflict that will ripple across the country.
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David Migicovsky, Counsel (Ott-OPS)
I’m asking you whether you agree that there would be risk implications. Those could be risk implications, of course, to residents, to police officers.
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David Migicovsky, Counsel (Ott-OPS)
And if we could scroll ---
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David Migicovsky, Counsel (Ott-OPS)
Well, let me see if I can help. You have no reason to disagree that these things occurred, do they? You just simply don’t recall that meeting, but you don’t question the document, do you?
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David Migicovsky, Counsel (Ott-OPS)
Commissioner, if the witness -- I didn’t understand that the witness did not agree. Simply, Councillor McKenney indicated she didn’t specifically recall ---
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David Migicovsky, Counsel (Ott-OPS)
I apologize. They did not specifically recall the meeting.
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David Migicovsky, Counsel (Ott-OPS)
Thank you. If we could scroll down, please, to Question 4. There’s a statement and it appears to be attributed to you, Councillor, but perhaps you can tell me if that helps refresh.
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David Migicovsky, Counsel (Ott-OPS)
It is not entirely clear but you'll see at Question 4 there is something and I'm going to read it to you, Councillor McKenney, and perhaps you can tell me if that refreshes your memory.
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David Migicovsky, Counsel (Ott-OPS)
It does not?
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David Migicovsky, Counsel (Ott-OPS)
Sure. So let me try this. So there’s a statement in Number 4 that says, “I appreciate everyone doing their best.” Does that sound like something that you said?
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David Migicovsky, Counsel (Ott-OPS)
And it also indicates you appreciate that everyone is doing their best. It also -- you talked about feedback and frustration increasing, correct?
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David Migicovsky, Counsel (Ott-OPS)
And I take it your feeling, and that of the whole city, presumably was, they wanted this to end, correct?
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David Migicovsky, Counsel (Ott-OPS)
And the situation in Toronto that you referenced, that occurred after the Ottawa situation, correct?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that obviously Toronto learned from Ottawa’s experience, correct?
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David Migicovsky, Counsel (Ott-OPS)
And you're aware that for Rolling Thunder, a different plan was in place because again Ottawa Police learned with the benefit of hindsight, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So given where we were on January 31st, you obviously wanted it to end but you understood thee was at that point no magic bullet, correct?
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David Migicovsky, Counsel (Ott-OPS)
And ultimately it was solved with more resources under the command of Interim Chief Bell, correct?
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David Migicovsky, Counsel (Ott-OPS)
And I understand that you're obviously interested in serving your constituents and assisting them with their immediate problems?
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David Migicovsky, Counsel (Ott-OPS)
And you’d agree with me as well that you have a duty to protect your constituents but also the City from harm that may come upon it?
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David Migicovsky, Counsel (Ott-OPS)
And so if, for example, a resident in your area calls the police or Bylaw because there’s a truck blocking the street, but the people in the car are armed and threatening to detonate a bomb or to kill a hostage if the police move in, you would expect that the police would try and deescalate?
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David Migicovsky, Counsel (Ott-OPS)
And you would not want the police to simply solve the complaint about the residence, about the truck blocking it, if that meant serious bodily injury or death would result to others in the neighbourhood or to the officer?
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David Migicovsky, Counsel (Ott-OPS)
And you would also agree with me that while you’re advocating for your constituents, you recognize that the police may be aware of other information that you aren’t, and that they need to take into account when they address protestors?
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David Migicovsky, Counsel (Ott-OPS)
And if we could please call up Document 1346, please?
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David Migicovsky, Counsel (Ott-OPS)
Oh, I’m sorry. It’s OTT 000111346.0001. And if we could look at 1138? There’s an email, Councillor McKenney, from you. Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
And you indicate in the second -- you’re raising a particular issue about your constituents and their fears and concerns; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I see in the second -- the third line, you’d agree with me that there’s much at that point that you did not know that was happening in the background?
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David Migicovsky, Counsel (Ott-OPS)
And you obviously would not expect the police to share sensitive operational information or intelligence with you?
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David Migicovsky, Counsel (Ott-OPS)
And you recognize the need for the police not to disclose all details?
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David Migicovsky, Counsel (Ott-OPS)
And if we see -- look at 1147, Mr. Ayotte’s response to you, he indicates that: “We would not want to take action that would fan the flames and make things more dangerous.” (As read) That strikes you as sensible and reasonable, I take it?
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David Migicovsky, Counsel (Ott-OPS)
Let me move on, Councillor Fleury, to ask if you’d be good enough to answer this question. If we could please turn up Document 2779, OTT? And perhaps you could scroll down a bit.
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry?
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David Migicovsky, Counsel (Ott-OPS)
Right. Okay. And so the concern you expressed to the Mayor in the third paragraph relates, again, to the question of resources of the Ottawa Police Service?
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David Migicovsky, Counsel (Ott-OPS)
And again, you’re seeking more resources?
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David Migicovsky, Counsel (Ott-OPS)
And you recognize, obviously, that in the face of this massive demonstration, Ottawa Police Service Officers obviously can’t be everywhere?
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David Migicovsky, Counsel (Ott-OPS)
They can’t be actively managing a demonstration and doing all of the regular police duties? They have to prioritize things; correct?
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David Migicovsky, Counsel (Ott-OPS)
And let me just -- I see my time is coming to an end, so I’ll have many more questions, but we’ll -- I’ll try to just ask a couple now. So if I could ask you, please, to turn to OPS 8245, please? And if you could scroll down? You talked about, Councillor McKenney, a fire at -- or an arson attempt at an apartment on Lisgar; correct?
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David Migicovsky, Counsel (Ott-OPS)
It’s in your witness statement and I believe you also mentioned it earlier this afternoon; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you’re obviously aware of what goes on in your community; I take it?
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David Migicovsky, Counsel (Ott-OPS)
And you wouldn’t have any reason -- this contains some details as to the police’s investigation of the arson. You wouldn’t have any reason to suggest that the police didn’t investigate that arson; would you?
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David Migicovsky, Counsel (Ott-OPS)
And you’re aware that two individuals were both charged with arson and a number of other offences?
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David Migicovsky, Counsel (Ott-OPS)
And in both cases, the media release indicated that they were not associated with the convoy; correct?
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David Migicovsky, Counsel (Ott-OPS)
You would agree with me, you’ve given me many examples of legitimate concerns of residents during the protests. You would agree with me, however, that there are many examples of situations where the police did take actions to address residents’ concerns during the convoy and did do outreach; correct?
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David Migicovsky, Counsel (Ott-OPS)
And finally, perhaps I can just finish off, I understand your frustration with the level of enforcement that took place in the red zone during the convoy. But you -- if we could please just turn up, just to assist you, OTT 28754? You referenced the injunction that the City ultimately obtained; correct?
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David Migicovsky, Counsel (Ott-OPS)
You talked about an injunction that the City of Ottawa obtained. Your view was that it was too -- that they should have done it sooner, but you mentioned -- and so that’s the decision of the Associate Chief Justice. I’m just going to ask if you’d be good enough to scroll to paragraph 26? Justice McWatt says: “Nevertheless, over 2,000 tickets for bylaw infractions have been given out since January 28 in relation to the demonstration, specifically 1,732 parking tickets have been issued in the demonstration zone.” (As read)
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David Migicovsky, Counsel (Ott-OPS)
That’s the red zone; correct?
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David Migicovsky, Counsel (Ott-OPS)
From January 28 to February 10, 2022; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you would agree with me that there was enforcement, there simply wasn’t enough enforcement? Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And there was a -- ultimately you agreed with me, I believe, that there was not enough resources available to successfully ---
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David Migicovsky, Counsel (Ott-OPS)
Thank you, very much, Councillor McKenney, thank you very much, Councillor Fleury, I appreciate that.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Mr. Kanellakos. My name is David Migicovsky and I act for the Ottawa Police Service. Mr. Kanellakos, I understand that David White, in his email to you, and I can pull up the email if it will assist you, but in the interest of trying to shorten my questions, I wont, but if you do need it, please let me know. My understanding is that he said to you on January 30th that obtaining an injunction to shut down a protest was an extraordinary thing given the Charter of Rights. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And what Mr. White told you at that time was that OPS’ concerns were, and this is the first weekend, correct, were the noise, the traffic impact, and the public frustration and pollution; correct?
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David Migicovsky, Counsel (Ott-OPS)
But from his perspective, there weren’t any public safety concerns or violence?
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David Migicovsky, Counsel (Ott-OPS)
And Mr. White also told you there was an issue as well from his perspective about the potential that enforcing the injunction could give rise to violence as well?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And that same day I understand you then spoke to Chief Sloly and he indicated that OPS would support the City in providing the injunction, but you made it clear it would be up to the City to decide whether to seek it? Would have the final say?
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David Migicovsky, Counsel (Ott-OPS)
And you ultimately did instruct Mr. White to proceed with that injunction?
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David Migicovsky, Counsel (Ott-OPS)
The names Omar Ansari, Mary Simms, and Stuart Huxley, those are individuals who work in the City’s legal department?
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David Migicovsky, Counsel (Ott-OPS)
And they report to David White?
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David Migicovsky, Counsel (Ott-OPS)
And my understanding is, and perhaps if you need the document, I can show it to you as well, my understanding is that Mr. White was informed that the OPS said they could provide evidence of the vehicles and the registered owners? I’ll pull up the document, if that would assist.
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David Migicovsky, Counsel (Ott-OPS)
If I may please have OTT29695? Sorry, I wonder if we could scroll down? I may not have said the correct document.
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David Migicovsky, Counsel (Ott-OPS)
Thanks. Never mind, I’ll proceed without the document. Ultimately the City was the one, I understand, who made the final decision about an injunction on February 11th and then proceeded on the 14th? Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And there were cooperation with the Ottawa Police in working with the City on that injunction; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, I believe that from the Ottawa Police, you obtained -- the City obtained some language with respect to what the enforcement clause of the injunction should look like?
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David Migicovsky, Counsel (Ott-OPS)
Sorry, what was that answer? I had a hard time hearing.
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David Migicovsky, Counsel (Ott-OPS)
And although there hadn’t been written responses to the questions that Mr. White had posed, there had been verbal discussions between the party’s legal ---
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David Migicovsky, Counsel (Ott-OPS)
--- staff? And from time to time, I take it, you were kept apprised of some discussions between the OPS and its policing partners, such as the OPP and RCMP?
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David Migicovsky, Counsel (Ott-OPS)
Sure. Were you made aware that the OPP and the RCMP, various officials there, had expressed serious reservations about the police getting involved in injunctions?
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David Migicovsky, Counsel (Ott-OPS)
Did you subsequently learn that?
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David Migicovsky, Counsel (Ott-OPS)
And you then understood that the Commissioner of the RCMP and the Commissioner of the OPP both had some concerns about injunctions in the context of these type of protests?
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David Migicovsky, Counsel (Ott-OPS)
I think you told us Ottawa has lots of protests and demonstrations; correct?
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David Migicovsky, Counsel (Ott-OPS)
And it’s a fact of life. And again I can turn to the document if you need it, but there’s a series of text message exchanges you have with Mr. Ayotte in which you’re discussing an article -- this was on January 30th -- that someone sent you talking about the sentiment of the citizens in Ottawa as of January 30th. And your response to Mr. Ayotte with respect to the article that had been sent to you is that it’s a bit naïve for somebody to believe that the police and the City should have just prevented the protest from happening. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
And we’ll be hearing that some of the convoy that came from out west, and I guess was the first group to leave, were annoyed by the fact that by the time they got to Ottawa, all of the prime spots on Wellington were taken up by others and that they were too far away with their trucks. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And I understand that on Friday, January 28th is when the convoys started to arrive in Ottawa.
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David Migicovsky, Counsel (Ott-OPS)
And the major impacts at that time were on Wellington and the Sir John A. MacDonald Parkway.
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David Migicovsky, Counsel (Ott-OPS)
And I understand we will be hearing that the spaces filled up very quickly. Is that your understanding as well?
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David Migicovsky, Counsel (Ott-OPS)
And once they filled up very quickly, it would not, I believe, was your perspective, be a viable solution on its own of ending the protest by simply towing vehicles; correct?
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David Migicovsky, Counsel (Ott-OPS)
You ---
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David Migicovsky, Counsel (Ott-OPS)
Right, thanks. And on January 30th -- and again I can turn up the document but in the interests of time I won’t unless you need it, so please do let me know if you need it. On January 30th, there’s an exchange that you have with Councillor Menard, and he asks about the option of having the vehicles ticketed and towed. And then Mr. Ayotte forwards it to you and expresses concerns about that approach, and I think your response is you agreed, and you said: “...where would we put the vehicles that are towed??” Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And on February 6th, 2022, I understand you have an exchange of texts with Kim Ayotte about towing the vehicles, and Mr. Ayotte points out to you that with 500 vehicles in the core, towing obviously isn’t an answer, and you agree that towing these big rigs will not solve the problem. And if I could ask, as well, if we could please turn up Documents OTT01239, and if we -- that is 01239? I’ll find the document if you need it; I’m just going to refresh your memory, but perhaps you’ll agree with me, I think what -- the point you make in a series of exchanges in which you’re discussing Councillor Fleury’s request is: “No way can you tactically tow a heavy truck in this scenario, the way they are parked nose to tail, and it would require a huge amount of police resources.” (As read) You agree with that?
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David Migicovsky, Counsel (Ott-OPS)
And a few days later I understand the City made an agreement or an agreement was made with the Mayor which in fact resulted in some additional trucks moving on to Wellington; correct?
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David Migicovsky, Counsel (Ott-OPS)
With respect to the City’s authority with respect to streets, I understand that the City gets its powers from various statutes; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And you agreed, as I understood your evidence this morning, and I believe in your institutional report you’ve agreed that the City independently does have the authority to close down roads and highways; correct?
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David Migicovsky, Counsel (Ott-OPS)
And they have that authority both under bylaws as well as under statutory authority; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I understand, though, that you work cooperatively with police when you do exercise that authority.
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David Migicovsky, Counsel (Ott-OPS)
And in fact, since the Freedom Convoy, the City has exercised its delegated authority to close down roads; for instance, for Rolling Thunder?
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David Migicovsky, Counsel (Ott-OPS)
And for Canada Day as well?
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David Migicovsky, Counsel (Ott-OPS)
And so in effect, since the protest the parties have, in effect, created exclusion zones, is that right?
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David Migicovsky, Counsel (Ott-OPS)
And in fact if we could turn up Document OTT26171? If we could scroll down, please? I think that’s the bottom. So you’ll see Councillor Leiper is proposing a motion; I don’t know if you recall that.
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David Migicovsky, Counsel (Ott-OPS)
And the motion being put forward by Councillor Leiper is for the General Manager of Public Works to work with City Councillors to close some roads, to diminish the volume of vehicles able to access the downtown core. Do you recall that motion?
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David Migicovsky, Counsel (Ott-OPS)
And that was, I guess, his concern was the weekend coming up of February 19th and 20th. And Mr. Gonthier, you’ll see if you scroll up, then shares that with Kim Ayotte, and says that the City does have -- the last sentence: “While we have the delegated authority to close roads, I would suggest in this case we would only proceed to do so if supported by OPS.” And you agree that that’s an accurate -- that’s an accurate statement?
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David Migicovsky, Counsel (Ott-OPS)
Thank you. One of the -- I’m just moving on to talk about the issue of ticketing. And one of the concerns expressed by Councillors was the present of trucks built or parked on the Queen Elizabeth Drive and the request by some councillors to have them ticketed as of January 30th.
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David Migicovsky, Counsel (Ott-OPS)
Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And you’ve expressed the view that you did not see what ticketing would accomplish in that scenario, is that right?
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David Migicovsky, Counsel (Ott-OPS)
Sure, feel free.
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David Migicovsky, Counsel (Ott-OPS)
Correct. And I guess you would -- and I can call up the document. It’s OTT29632. And while they do that, I understand that this is a series of text messages between you and Mr. Ayotte? And if we could turn, please, to page 11 of the document. And if you look at 10:08:32, then you can read up above just to give yourself a context. But one of the concerns that Mr. Ayotte expressed about this is ticketing will also anger the demonstrators.
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David Migicovsky, Counsel (Ott-OPS)
And in fact, there had been experiences, in fact, we see in the next line below a situation in which demonstrators got aggressive in another scenario; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so that was always a concern throughout the protests that any reaction that the City or the police take may create a very volatile situation?
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David Migicovsky, Counsel (Ott-OPS)
And the demonstration, from your experience working with the City, was a volatile situation?
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David Migicovsky, Counsel (Ott-OPS)
And enraging protestors, you shared the police concern that that could be counterproductive?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, Deputy Chief Ferguson communicated with Mr. Ayotte about this situation about leaving the vehicles on the Queen Elizabeth driveway for now, and said that the police had decided to leave them for now, and you agreed with her, as did Mr. Ayotte; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And I believe at 11:37:47, in that same email chain, you indicate -- 11:37:20: "Steve Kanellakos: 'Sloly got back to Mayor. Mayor agrees that it's not worth inciting the crowd so he's good and supports police decision.'"
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David Migicovsky, Counsel (Ott-OPS)
If we could please go to document... Or, again, I won't turn it up because we did see it this morning, but if you need it let me know. On January 25th, I understand that some information was forwarded from the Ottawa Hotel Association. And actually, I will turn up the document, just because there's something attached in the chain. So if we could please have 0070?
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David Migicovsky, Counsel (Ott-OPS)
It's OTT, it'll be six zeroes, 70. So if you just scroll down to the bottom. That -- if you can then just keep going up, and then go up. It says, "Hi Sam" -- this from Beth. Beth Gooding is the Director of Public Safety for the City?
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David Migicovsky, Counsel (Ott-OPS)
And she's writing to Sergeant Eustace Roberts at the police, and she indicates: "'Hi Sam, We don't know if this is valid or some kind of attempt to purposefully distract but.... Sharing an exchange that was sent to the Mayor's office. Obviously, please treat as confidential.'" And then, that was what you were talking about the information from the Ottawa Hotel Association?
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David Migicovsky, Counsel (Ott-OPS)
And then, if you could please turn up OTT0392. And I -- while that's being turned up, I -- if I told you that the police did subsequently speak to the Hotel Association, you wouldn't have any reason to disagree with me, would you?
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David Migicovsky, Counsel (Ott-OPS)
And this is on January 26th, so this is just before the protestors came. You'll see, if you look at your email at the bottom at 9:28, 9:30, one of the things you told the councillors is that although planning -- I'm in the second line: "'...has been very difficult because the leadership of the protesters are poorly organized [and you] need their cooperation...[and you have to work] through a number of scenarios. More information will be released as it gets firmed up.'" And that was a problem, was that the information was changing frequently; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And the City and police, you said to me, have worked well together, and you would agree with me that on several occasions during this event you expressed the view that they were indeed working together well?
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David Migicovsky, Counsel (Ott-OPS)
I understand -- if I might just ask you a question with respect to the baseball stadium. I understand -- you talked about the parking there. I understand at one point the Mayor wanted to know if the City had allowed the parking, and you -- at the stadium, and you asked Mr. Ayotte, and he confirmed that the City had in fact agreed to it?
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David Migicovsky, Counsel (Ott-OPS)
And with respect to, if I might just ask you a couple of questions with respect to the agreement with the protestors. I understand that the results of the PLTs letting you know that the protestors wanted to meet on February 8th, that you in fact met and I think you said you met with Tom Marazzo, Eva Chipuik and Keith Wilson that day?
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David Migicovsky, Counsel (Ott-OPS)
And my understanding, but I may be incorrect, is that the PLTs were not present during the meeting, they brought them to the meeting, however.
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David Migicovsky, Counsel (Ott-OPS)
And so the initial part of the meeting was you and Tom Marazzo.
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David Migicovsky, Counsel (Ott-OPS)
Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I understand that meeting was about an hour-and-a-half; right?
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David Migicovsky, Counsel (Ott-OPS)
Right. There are no notes of that meeting or ---
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David Migicovsky, Counsel (Ott-OPS)
--- emails exchanged about what was agreed to in that meeting?
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David Migicovsky, Counsel (Ott-OPS)
And the meeting to deal with the logistics was on the 13th, I believe?
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David Migicovsky, Counsel (Ott-OPS)
And that was I think at 5:30; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that was just -- that was after the letters had already been signed by the Mayor and Ms. Lich?
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David Migicovsky, Counsel (Ott-OPS)
And then the actual move of the vehicle -- of the trucks then started on the 14th; correct?
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David Migicovsky, Counsel (Ott-OPS)
And there were about 40 heavy trucks that ended up being moved as a result of that?
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David Migicovsky, Counsel (Ott-OPS)
And on the 15th, you learned that the police on the ground were not going to continue assisting other trucks in going to Wellington, but would only be letting them move if it was to leave completely; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, Rob Drummond, you understand, Superintendent Drummond had some exchanges with Kim Ayotte, and he was pretty definitive at that point on the 15th that the OPS was not going to move anymore trucks on Wellington; correct?
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David Migicovsky, Counsel (Ott-OPS)
And although he told you that, I believe you were still hoping to try to get things to continue?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much, Mr. Kanellakos. Thank you for the questions.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Mr. Arpin, sir. My name is David Migicovsky. I’m counsel for the Ottawa Police Service. Mr. Arpin, you were involved, you told us, in the negotiations that led to an agreement with the convoy; correct?
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David Migicovsky, Counsel (Ott-OPS)
And would it be accurate to characterize the protestors as a cobbled together group of desperate individuals and hard to know who is in charge? Would you agree with that characterization?
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David Migicovsky, Counsel (Ott-OPS)
And if I can ask, please, that you turn up Document OTT355, please? And that was the exchange of emails that we previously saw ---
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David Migicovsky, Counsel (Ott-OPS)
The text messages. I apologize. And in that text message exchange, I understand that you wanted to make it clear that you would not engage with the radical elements of the protest; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you understood that the Sussex and Rideau group was -- would fit within that characterization of a -- the radical elements?
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David Migicovsky, Counsel (Ott-OPS)
And I think actually the Sussex and Rideau group was characterized by you as a criminal element? Would you agree with that?
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David Migicovsky, Counsel (Ott-OPS)
And so even if the truckers moved, it would be unlikely to clear up the Rideau/Sussex intersection; correct?
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David Migicovsky, Counsel (Ott-OPS)
But the Rideau/Sussex group seemed intent on staying; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that was the access point for the Rideau Centre; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the letter that was sent by Ms. Lich, I understand that she made it very clear that she did not, or her group, did not speak for all of the truckers; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in particular, she said she did not -- her group did not represent Farfadaas, the group at Rideau/Sussex; correct?
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David Migicovsky, Counsel (Ott-OPS)
Is that consistent with your recollection?
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David Migicovsky, Counsel (Ott-OPS)
And those other individuals like Pat King and the others were on social media at the time taking positions that were not necessarily consistent with the group that you were negotiating with; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, even the group that you were negotiating with that was headed by Tamara Lich, I believe Ms. Lich had put out two apparently contradictory Tweets on the day after -- on the day after the agreement; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. So those appeared to create some confusion as well as to how this deal or whether this deal was going to work; correct?
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David Migicovsky, Counsel (Ott-OPS)
The -- my understanding is you did not meet with the protestors directly; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you talked about the PLT coming to meet with Mr. Kanellakos. And I take it you don’t know whether those were OPP PLT or OPS PLT?
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David Migicovsky, Counsel (Ott-OPS)
And indicated that they were OPS?
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David Migicovsky, Counsel (Ott-OPS)
Or did he indicate that they were PLT?
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David Migicovsky, Counsel (Ott-OPS)
And my understanding is that the genesis of that meeting was that the protestors were refusing to engage with the PLT and were instead asking to meet with the City instead? Is that your understanding?
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David Migicovsky, Counsel (Ott-OPS)
Was it your understanding that that’s how that meeting came about?
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David Migicovsky, Counsel (Ott-OPS)
And so when the PLT came to the meeting to engage, they did not come to that meeting with an agreement in principle that they were simply asking to be ratified. What they were asking for was a meeting to help start or continue discussions; is that right?
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David Migicovsky, Counsel (Ott-OPS)
Thank you. Could I ask you please -- sorry, the letter, we can call it up. It's Document OTT6948, which is the letter from Ms. Lich to the mayor. Sorry, I've given you the letter from the mayor to Ms. Lich. My -- it is 6964, I believe. I apologize. It's the same one. I won't ask a third time because I don’t want to strike out. But if ---
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David Migicovsky, Counsel (Ott-OPS)
I'm looking -- I'll see if I can do it this way. The agreement, the letter from Ms. Lich referred to 400 vehicles, 400 trucks, correct?
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David Migicovsky, Counsel (Ott-OPS)
Just a sec. I'll just show you the ---
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David Migicovsky, Counsel (Ott-OPS)
Oh, thank you very much. Thank you. If you'd be good enough please to scroll down?
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David Migicovsky, Counsel (Ott-OPS)
So sorry. Maybe I go back to the previous letter.
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David Migicovsky, Counsel (Ott-OPS)
It's -- I'm sorry, it's in the mayor's letter.
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David Migicovsky, Counsel (Ott-OPS)
So if we could go back to the previous one? I apologize.
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David Migicovsky, Counsel (Ott-OPS)
Yeah, 6964. If you scroll down, yeah, on the second page, the second paragraph refers to the departure of the over 400 trucks from residential areas. And so the 400 trucks was the concern; it wasn’t simply the vehicles that would move as well, but the real issue was those big trucks, correct?
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David Migicovsky, Counsel (Ott-OPS)
And in terms of moving the trucks, you'd agree with me that that was a very difficult task, and in fact, I think in a text message exchange with Ms. Deans, you suggested it would be like a Rubik's cube to ---
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David Migicovsky, Counsel (Ott-OPS)
Could we please have Document OTT20710? And if we go to page 13, I believe that what Ms. Deans suggested as the solution was, "How about arresting the drivers, confiscating the keys, and have them driven out"? And then if you'd be good enough to scroll down to -- or go to the next page please? And so your description was: "If you can pull that miracle off, matching drivers with keys, matching keys with vehicles, getting their cooperation to identify the first vehicle that needs to be removed on streets that are blockaded with trucks, I believe you'll have to start with the first vehicle, then the next, then the next, in that order. The logistical challenge of moving those trucks out is nothing short of a Rubik's cube without their cooperation. The same applies if you start from the back." (As read) And it then goes on. I won't read the rest. That represented your views of how intractable the situation was, correct?
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David Migicovsky, Counsel (Ott-OPS)
And I think your point was it would be a very long operation without the collaboration of the individual big rig owners, correct?
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David Migicovsky, Counsel (Ott-OPS)
In that exchange that you had with Ms. Deans in her capacity as Chair of the Ottawa Police Service Board, am I correct that another piece of advice you gave her was to minimize the number of OPS Board meetings because they suck up huge police resources?
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David Migicovsky, Counsel (Ott-OPS)
And so perhaps we could go to page 19 please? So what you said was: "I would minimize the number of public Board updates to maybe once a week, as they suck up huge police resources and serve as a lightening rod to attack you, often for partisan reasons. Don’t do it unless there is a clear and compelling need focused on major new developments." (As read) And so I take it you were aware of the concern about sucking up police resources ---
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David Migicovsky, Counsel (Ott-OPS)
--- in these meetings, correct?
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David Migicovsky, Counsel (Ott-OPS)
One of the people that you talked about having dealt with was Dean French and also Keith Wilson, correct?
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David Migicovsky, Counsel (Ott-OPS)
And Mr. Wilson was involved in negotiating on behalf of the truckers?
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David Migicovsky, Counsel (Ott-OPS)
I'm told -- and we'll be seeing this through another witness later -- but I'm told that Mr. Wilson described being on the ground on February 10th as negotiating in order to avoid a bloodbath. Would you agree with that characterization?
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David Migicovsky, Counsel (Ott-OPS)
At the end of the day, Mr. Arpin, you would agree with me that the combined forces of the OPP, the RCMP, and the OPS did an amazing job ---
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David Migicovsky, Counsel (Ott-OPS)
--- clearing this up? Thank you very much, sir. I have no further questions. Thank you.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Mayor Watson. My name is David Migicovsky ---
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David Migicovsky, Counsel (Ott-OPS)
--- and I am counsel for the Ottawa Police Service. Mayor Watson, I understand it's not an uncommon experience for the budget for the police to be a hotly debated matter by Council?
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David Migicovsky, Counsel (Ott-OPS)
And I know that for 2022 budget year, which I guess was completed, that process, in November/December of 2021, the budget increase that Chief Sloly had requested was I believe a 2.86 percent increase from the previous year, and what the Ottawa Police Service Board approved was a 2 percent budget increase. Is that your memory?
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David Migicovsky, Counsel (Ott-OPS)
And so according to the media reports, that budget, once it had been approved by the Ottawa Police Service Board, came before Council for a fairly contentious debate, and ultimately, Council did approve the 2 percent increase?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, Chief Sloly had requested more from the Ottawa Police Service's Board, but they had not given him what he had been asking for; is that your memory?
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David Migicovsky, Counsel (Ott-OPS)
And I believe Chief Sloly was on record telling Council that there would be significant risks to policing. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And several councillors at the time in fact voted against the 2 percent increase saying it was too much; correct?
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David Migicovsky, Counsel (Ott-OPS)
And ultimately, what it took to resolve the protest in Ottawa was a massive amount of resources?
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David Migicovsky, Counsel (Ott-OPS)
The Freedom Convoy.
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David Migicovsky, Counsel (Ott-OPS)
And it took a massive, not only civilian members, but it took a massive number of police officers on the grounds; correct?
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David Migicovsky, Counsel (Ott-OPS)
A much needed day off ---
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David Migicovsky, Counsel (Ott-OPS)
--- given what was going on on the ground; correct?
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David Migicovsky, Counsel (Ott-OPS)
And, really, this was unprecedented in terms of your career in politics; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And, in fact, you yourself, I believe, as well as Chief Sloly, received threats during the protest?
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David Migicovsky, Counsel (Ott-OPS)
And the police, obviously, took those seriously and took appropriate action?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. I have no additional questions. Thank you.
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David Migicovsky, Counsel (Ott-OPS)
Good morning -- good afternoon, Mr. Ayotte. It'll soon be good evening.
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David Migicovsky, Counsel (Ott-OPS)
Thank you. I am David Migicovsky. I'm Counsel for the Ottawa Police Service. I just want to get some clarification with respect to the relationship between By-law and Regulatory Services and the police. And you mentioned a Roger Chapman; is that the name?
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David Migicovsky, Counsel (Ott-OPS)
And so if you could please turn up OTT0359? And if we scroll down to the bottom of the chain, there is a draft. Yeah, so if we just stop there. Thank you very much. In which it indicates -- or perhaps you could just go up a little bit more, so we can just see. Yeah, it's from Peggy Staruch to Ghislain Lamothe. And you'll see that what has been sent is a -- I guess a draft release to Ottawa business partners that has been drafted and is being sent to you ultimately for review; correct?
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
--- and so you'll see, if we look at the second -- sorry, the sentence that begins, "The OPS will always be available to respond to any issue of safety you may encounter by dialing 911. If you are experiencing issues relat[ing] to COVID 19 and masking, please call City Bylaw at 311 first." Correct?
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David Migicovsky, Counsel (Ott-OPS)
And so if you then could scroll up to the next email, just this is the date of Thursday the 27th; correct? So it's the day before the protesters started arriving. And so just above that, you'll see there's a response from a Michael Lalonde, I think, at 11:06 a.m. And so Mr. Lalonde says, "By-law [...] has one area of concern. The OPS will be available to respond..." I'm sorry, so it's the same email and he has highlighted the sentence that says, "If you are experiencing issues relating to Covid 19 and masking, please call City Bylaw at 311." Correct? And then you’ll see underneath, he writes his comments about -- I guess he has concerns about that phrase and he says: "Since this relates to protest demonstration, Covid 19 complaints are to be direct OPS for response. Responding to Covid complaints during a protest demonstration is a safety issue for our officers by being subject to violence. We have made our position clear over the year that Bylaw Services does not respond to protest demonstrations including the activities surrounding it. Can we change what is highlighted in yellow." And then if we scroll up above that, you’ll see there’s a request for a revised text. And then if you up to the -- continue scrolling up, please, and then you’ll see that somebody name Tania McCumber has said on January 27th: " Below is the email chain regarding the calls within the demonstration area. Roger advised myself that Kim made the police aware yesterday at a meeting and Roger will reiterate again tomorrow morning at his meeting with the police." And I take it you did reiterate that position?
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David Migicovsky, Counsel (Ott-OPS)
And that had been, I guess, the consistent position of Bylaw for about a year prior to that, it sounds like?
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David Migicovsky, Counsel (Ott-OPS)
You mentioned that there were occasions where Bylaw went in with police in these QR teams. These are quick-response teams, correct.
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David Migicovsky, Counsel (Ott-OPS)
And so they would issue tickets for parking, noise bylaw complaints, and that would be in the demonstration zone, correct?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, there were several hundred tickets issued by those quick-response teams for those type of complaints, were there not?
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David Migicovsky, Counsel (Ott-OPS)
And we can also see, if you could be good enough, please, to turn to 10463, OTT. And if we could just look at the first page. Those are your notes, Mr. Ayotte; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
They’re pretty legible. So if I could just ask ---
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David Migicovsky, Counsel (Ott-OPS)
If I could just ask to look at number 3 -- sorry, I wonder if we could just see the date of your notes.
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David Migicovsky, Counsel (Ott-OPS)
February 2nd, okay, perfect. And number 3: "The Market was in the red zone but that zone has been shrinking as a result of police demobilizing the demonstration." So you were able, then, to provide some enforcement -- bylaw enforcement in that area as well?
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David Migicovsky, Counsel (Ott-OPS)
I understand that on the first weekend -- so that would be the weekend starting Friday, the 28th, 29th, 30th -- there were, is it fair to say, thousands of trucks in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
My understand was, after the weekend -- after the first weekend, we’ve heard somewhere in the vicinity of 70 percent of those big trucks left; is that consistent with your understanding?
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David Migicovsky, Counsel (Ott-OPS)
So that would be about 400 or so, I think.
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David Migicovsky, Counsel (Ott-OPS)
And you’d agree with me -- I assume you were following some of this on social media while it was going on?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that there was a lot of misinformation about what was going on, what the demonstrators were doing, what they might do?
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David Migicovsky, Counsel (Ott-OPS)
Fair enough. We’ll be hearing it from others ---
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David Migicovsky, Counsel (Ott-OPS)
--- so that’s okay. We did not have, in Ottawa, 15,000 hotel rooms occupied by convoy members for 30-day periods, to your knowledge, did we?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Because, basically, the core was those 400 trucks, correct?
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David Migicovsky, Counsel (Ott-OPS)
I wonder if you’d be good enough, please, to look at document OTT10103, and if we can start at the top, I guess. This is iMessages, I assume, between yourself and Beth Gooding?
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David Migicovsky, Counsel (Ott-OPS)
And Beth Gooding is the Director of Public Safety? Have I got that right?
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David Migicovsky, Counsel (Ott-OPS)
And this on February 15th, so that’s the Tuesday?
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David Migicovsky, Counsel (Ott-OPS)
And the movement of trucks, as I understand, pursuant to the Mayor’s agreement, was on February 14th; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And on the 15th, as I understood your evidence, the police had stopped assisting in the moving of trucks and were encouraging the truckers to go home; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And on the 15th, then, you were discussing what happened in that agreement, what the effect of it was, correct, with Ms. Gooding? And so ---
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
And so if you’d be good enough, please, to look at Beth Gooding’s message at 1:24 p.m.
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David Migicovsky, Counsel (Ott-OPS)
And so you’ll see you’re asking her about the number that are still there and she says: "I think there’s about 337." (As read).
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David Migicovsky, Counsel (Ott-OPS)
Three-hundred-and-fifty- seven (357) but that Chief Sloly had been saying 400 so that there’s a delta of 43, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And then we see at 1:26, you tell her that what you’re interested in the numbers is the big trucks and whether they move. That’s what you want information?
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David Migicovsky, Counsel (Ott-OPS)
And so you tell her at 1:56 -- if you could please scroll down, you tell her that according to the protesters, I think, they moved about 40 the previous day; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And she said that that basically aligns with what the NCRCC has said, correct?
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David Migicovsky, Counsel (Ott-OPS)
And at -- you continue, then, to discuss how many and how it’s difficult to count them. And if you could please look at 4:19 p.m. Just scroll down a bit. Yeah, so at 4:19, Ms. Gooding says: "Also, confirming again that there was some weirdness yesterday. When trucks left spaces, other vehicles got into the empty places left as the hardcore protesters are jockeying for position."
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David Migicovsky, Counsel (Ott-OPS)
And the agreement, as I understand it, with the Mayor was that the truckers said that if vehicles moved they would not be replaced; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so that seems not to have occurred.
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David Migicovsky, Counsel (Ott-OPS)
And so if we then look at 4:57 in that same chain, you indicate you're going to: "...report approximately 175 trucks remain south of Wellington and 120 north of Wellington..." Correct?
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David Migicovsky, Counsel (Ott-OPS)
And at -- if you could look at 4:25, please. If we just go up a bit. You're talking about, I guess Ms. Gooding is giving you the county, as best as they're able to, on the 15th, of the number of trucks remaining, correct, at the various locations?
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David Migicovsky, Counsel (Ott-OPS)
And so what we see is Metcalfe, 70 trucks; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so yesterday, we saw a picture from the Mayor's Office of Metcalfe and we saw no trucks on it. But I assume that we were only seeing a one block portion because there were about 70 trucks still on Metcalfe it looks like. Is that what you're understanding from Ms. Gooding?
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so you would agree with me that on the 15th there were trucks still on Metcalfe; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And there were a number of trucks still on Metcalfe, though; correct?
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David Migicovsky, Counsel (Ott-OPS)
And -- those are all my questions. Thank you very much, Mr. Ayotte.
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David Migicovsky, Counsel (Ott-OPS)
Just hold on a moment.
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David Migicovsky, Counsel (Ott-OPS)
Thank you.
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David Migicovsky, Counsel (Ott-OPS)
I have a concern. We received a copy of that audio recording 10 minutes, or 13 minutes, I believe, before the hearing commenced. I was surprised that it had not been disclosed previously. The Ottawa Police Board disclosed a number of other documents. It was clearly something that they believed was relevant. It was not put to Mayor Watson yesterday. And I guess what I’m concerned about is the integrity of the process when we get these kinds of things 10 minutes before a witness is about to testify. I need to obtain instructions with respect to this. I have not been able to do so. And I guess what I worry about is what else is not being disclosed or what are we going to see after witnesses have already testified? It’s unfair to Mayor Watson and it’s unfair to the process, quite frankly, to have this kind of recording come up 10 minutes before the witness testifies.
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David Migicovsky, Counsel (Ott-OPS)
Yes, that’s fine. I think I’m the first person to cross-examine, so I’d like to get those instructions before. And I just want to make clear; I wasn't suggesting that the Commission hadn't disclosed it. I appreciate that they only just received it as well. My concern was ---
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry ---
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David Migicovsky, Counsel (Ott-OPS)
No, my own concern is, now that we have assigned it a number, my understanding was that it would then be an Exhibit at the hearing and I would ask, if my understanding of the rule is correct, then I would ask that we defer making it an Exhibit at this time, at least so that we can get instructions and speak to that issue.
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David Migicovsky, Counsel (Ott-OPS)
Mr. Commissioner, Commission counsel, that’s fine. Mr. Migicovsky is correct. Typically when we refer to a document ID, it is made an Exhibit; those are the rules we’ve set up, but in the circumstances where there may be objections and we haven’t -- you haven’t ruled on the sort of admissibility, I think my colleague was just reading it out for the benefit of counsel in the room and it won’t be marked an Exhibit until we’ve dealt with its admissibility after lunch.
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David Migicovsky, Counsel (Ott-OPS)
Commissioner, I was wondering if I might raise this matter. I understand that there is going to be -- that the recording, the audio recording was going to be played. I understand that that request has been made and we are not opposed to it, and I would suggest that if it is going to be played, that it be played now before I start my cross-examination.
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David Migicovsky, Counsel (Ott-OPS)
That's what I was trying to avoid. (LAUGHTER)
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Councillor Deans. My name is David Migicovsky. I act for the Ottawa Police Service. Councillor Deans, am I correct that while Chief Sloly was the Chief, he had asked for an increase in the number of officers?
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David Migicovsky, Counsel (Ott-OPS)
And officers had been hired over the last several years, but just to cover attrition. There was a hiring freeze; correct?
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David Migicovsky, Counsel (Ott-OPS)
And as of 2022, I understand that Ottawa Police had less officers, sworn officers, than it did in 2019; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Could I ask you, please, to turn up OPB01278. And if we could please go to page 4. You'll see, this was the meeting that you were at; correct?
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David Migicovsky, Counsel (Ott-OPS)
And at this point, Interim Chief Bell was in command?
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David Migicovsky, Counsel (Ott-OPS)
And a question was raised regarding the Service's operational plan, and then you got some information from Interim Chief Bell; correct?
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David Migicovsky, Counsel (Ott-OPS)
He provided a briefing. And is it fair to say that you got a lot more information as a Board on operationally what was going on at the time when Chief Bell became the Interim Chief?
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David Migicovsky, Counsel (Ott-OPS)
And I believe on page 4, if we go to the paragraph that starts, "A question was raised." Yeah, thank you. You'll see: "A question was raised regarding the ineffective policing having been seen in the City, and it was suggested...there were instances in which police could have engaged in enforcement but did not." Am I correct, then, the minutes accurately reflect: "[Interim] Chief Bell noted that the Service had committed to a review of all actions having brought them to their current situation."
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David Migicovsky, Counsel (Ott-OPS)
He indicated he would review it. And then if you look two paragraphs later... If you go down to the paragraph: "A question was raised regarding why roadblocks had not been installed prior to the arrival of any convoys. The Service again noted...they were supportive of a full review being conducted to identify any mistakes made or laws that required updating, however their focus at the time was forward- looking." Correct?
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David Migicovsky, Counsel (Ott-OPS)
And if you go to page 5, there was a request in the third paragraph for twice daily updates from the Service to the Board, and this is because the Board wanted to get more information than they felt they'd been getting from Chief Sloly. Is that right?
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David Migicovsky, Counsel (Ott-OPS)
And Interim Chief said he supported increased communications with the Board, but twice daily updates wouldn't be possible because from a resource point of view that's taking a lot of Command staff away from time that is needed operationally; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that seemed reasonable to you?
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David Migicovsky, Counsel (Ott-OPS)
You talked about not trusting the Mayor. Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And in fact, the person who recorded it, we can hear at the beginning, is Jessica; correct?
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David Migicovsky, Counsel (Ott-OPS)
That's Jessica Bradley?
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David Migicovsky, Counsel (Ott-OPS)
That's Jessica Bradley?
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David Migicovsky, Counsel (Ott-OPS)
And you asked her to record it.
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David Migicovsky, Counsel (Ott-OPS)
And that was a Teams meeting; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so Teams has a function in which you can record a meeting, but if you do that it will show that the meeting is being recorded. So that's not what you did, is it?
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David Migicovsky, Counsel (Ott-OPS)
And you didn't tell the Mayor that you were recording that phone call?
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David Migicovsky, Counsel (Ott-OPS)
And are you saying that by way of justifying why you recorded it in detail?
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David Migicovsky, Counsel (Ott-OPS)
You don't have any problems with the ethics of recording a conversation and not telling somebody that you're doing it?
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David Migicovsky, Counsel (Ott-OPS)
And wouldn't you be able to file an accurate record of the conversation by saying, "Hey Mayor, I'm taping this conversation"?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And is that something you do regularly, tape ---
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David Migicovsky, Counsel (Ott-OPS)
--- conversations?
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David Migicovsky, Counsel (Ott-OPS)
So this just seemed like a good idea to you at the time?
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David Migicovsky, Counsel (Ott-OPS)
I take it, Councillor Deans, you support openness and transparency?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that openness and transparency doesn't include doing a secret recording of a conversation with the Mayor?
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David Migicovsky, Counsel (Ott-OPS)
Could we go back to my question?
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David Migicovsky, Counsel (Ott-OPS)
My question was would you agree with me that openness and transparency doesn't support doing a secret recording of a conversation with the Mayor?
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David Migicovsky, Counsel (Ott-OPS)
You don't agree with that?
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David Migicovsky, Counsel (Ott-OPS)
And openness and transparency isn't a problem for you?
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David Migicovsky, Counsel (Ott-OPS)
And what I understood when I listened to the recording was what you said to the Mayor was, "If you don't want me to sign the contract I won't."
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David Migicovsky, Counsel (Ott-OPS)
I heard those exact words on the audio.
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David Migicovsky, Counsel (Ott-OPS)
Sorry, I haven't asked my question yet. And am I correct that that Mayor -- that at the end of that -- and Mayor Watson's response to that comment was: "I think it would be destabilizing. I don’t favour it. I don’t want it to occur." Was there any doubt in your mind after that conversation that Mayor Watson did not support what you were doing?
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David Migicovsky, Counsel (Ott-OPS)
Well, aren't we playing word games, Ms. Deans?
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David Migicovsky, Counsel (Ott-OPS)
Well, let me finish my question, if you don’t mind. What you said was, "If you don’t want me to sign the contract, I won't." And my question to you was, was there any doubt, at the end of that conversation, that he did not want you to sign, direct you to not sign it?
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
Okay. So ---
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David Migicovsky, Counsel (Ott-OPS)
You indicated -- I am correct, by the way, when I say the mayor cannot direct you as Chair of the Police Services Board to not to sign a contract, correct?
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David Migicovsky, Counsel (Ott-OPS)
One of the things you indicated was that Graham Wight ---
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David Migicovsky, Counsel (Ott-OPS)
--- said that your suggestion of Matt Torigian was an elegant choice, correct?
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David Migicovsky, Counsel (Ott-OPS)
If I could ask, please, to turn up Document ONT001121?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry. It's ONT000001121. And you'll see there's an email from Graham Wight. Graham Wight was the Police Services Board Advisor?
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David Migicovsky, Counsel (Ott-OPS)
And so if you'd be good enough, please, to scroll down? And so sorry, you can go up for the first paragraph. Just there, perfect. Thank you. "Chair Dean stated that Matt Torigian had tentatively agreed to take the role and asked if the advisor, me, thought that was a good idea. I stated that I could not endorse any person for the role, but that the Board needs to have a chief in place ASAP, because Chief Sloly's agreement expired at the end of the day. I stated clearly to the Board that they are prohibited from not having a chief in place and should take steps to appoint a chief of police as soon as possible." That is what Mr. Wight's advice to you was?
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David Migicovsky, Counsel (Ott-OPS)
And you talked about the various complaints that you heard about in the Ottawa Police Service, which you described as a "poisoned environment", I think?
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David Migicovsky, Counsel (Ott-OPS)
Right. And I take it, in spite of those concerns, you took no steps to investigate whether that was true or not true?
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David Migicovsky, Counsel (Ott-OPS)
Sure. That related to issues of sexual harassment and sexism in the workplace, correct?
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David Migicovsky, Counsel (Ott-OPS)
That’s what ---
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David Migicovsky, Counsel (Ott-OPS)
Right. And so you did nothing to investigate the specific poisoned environment that apparently you heard about from others and from Chief Sloly, and in your capacity as Board Chair, you did not investigate?
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David Migicovsky, Counsel (Ott-OPS)
And you had -- and there had not yet been any investigation; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And so of course, until you have some sort of investigation, you don’t know. You're operating on rumours and innuendo and hearsay, right?
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David Migicovsky, Counsel (Ott-OPS)
And so you indicated that you heard that there was some issue with respect to Deputy Chief Bell? No particulars were provided and you never investigated that, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you thought it was okay to tarnish his reputation and what he had done without any investigation into that?
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David Migicovsky, Counsel (Ott-OPS)
And you indicated that ultimately, Chief Sloly was right, proved to be right?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so -- and yet, when you spoke to the mayor, you recounted that when you spoke to Deputy Chief Bell at the time, and he said to you he would not have done something different, you thought that was a mark against him. And yet, you're saying Chief Sloly was correct in what ---
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David Migicovsky, Counsel (Ott-OPS)
And in fact, what he said was that changing the leadership would not be a good thing to do at this point. You phoned him before you'd made the deal with Chief Sloly, you asked him about it, and he showed that he was loyal to the chief. And he said it would be destabilizing to now change leadership, correct?
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David Migicovsky, Counsel (Ott-OPS)
And you talked about allegations of racism?
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David Migicovsky, Counsel (Ott-OPS)
And again, am I correct that you had no particulars of it? You weren’t faulting anybody, it may be a systemic issue in policing? Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
I don’t see why it isn’t.
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David Migicovsky, Counsel (Ott-OPS)
Well the test is -- it’s a pretty broad mandate, Commissioner, that you have. You’re looking into all of the circumstances. We’ve looked at whether the Service had enough resources, you’re going to look at how they expended their funds, the decisions they made during the convoy. I submit that it may indeed be relevant about an expense that the Board procured at a time when this was going on. And it was a rather, I suspect, significant expense.
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David Migicovsky, Counsel (Ott-OPS)
No. Sorry. I was -- what I said is -- or what I intended to say was that the Commission will be looking into the circumstances that led to the Emergencies Act, you’re looking at what was going on in the Ottawa Police Service, you’re looking at what happened at the Ottawa Police Services Board, and it seems to me that in looking at that issue, it may be relevant to determine what funds the Board expended at this time.
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David Migicovsky, Counsel (Ott-OPS)
That’s fine. Thank you. You indicated ---
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David Migicovsky, Counsel (Ott-OPS)
If I might just have two more minutes?
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David Migicovsky, Counsel (Ott-OPS)
One of the things you said in your conversation with the Mayor was a lot of people don’t support Steve Bell; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that a lot of people did not support Chief Sloly either?
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David Migicovsky, Counsel (Ott-OPS)
And so those kinds of things are not really things that you can take into account in making decisions; fair?
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David Migicovsky, Counsel (Ott-OPS)
And finally, my question to you is, in retrospect, because we have not had the full review that Chief Bell indicated would take place, you would agree with me that we really do need to examine what went on, why it went on, and ultimately how to prevent it for the future?
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David Migicovsky, Counsel (Ott-OPS)
We don’t know who was responsible for that?
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David Migicovsky, Counsel (Ott-OPS)
Thank you.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much, Commissioner.
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David Migicovsky, Counsel (Ott-OPS)
None whatsoever; thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
Good evening, Supt. Morris, how are you?
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David Migicovsky, Counsel (Ott-OPS)
I am David Migicovsky; I’m a lawyer for the Ottawa Police Service. I understand that the OPP has quite a bit of experience dealing with protests over the years?
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David Migicovsky, Counsel (Ott-OPS)
And some of the protests, I take it, would have been successfully handled; some have resulted in some public criticism of OPP’s role.
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David Migicovsky, Counsel (Ott-OPS)
For instance, if we go back, Ipperwash and Dudley George were notorious examples of where things went wrong. And then I understand in 2013, the OPP was also subject to much criticism -- I’m not saying merited, but criticism for how it responded to the Idle No More protest, is that right?
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David Migicovsky, Counsel (Ott-OPS)
I seem to recall that there was criticism of the OPP for not ending blockades of rail arteries at the time, and injunctions had been issued. Is that coming back to you?
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David Migicovsky, Counsel (Ott-OPS)
And as I recall, the OPP Commissioner went on YouTube and said it can be sometimes difficult for the public to understand why the police don’t always immediately take enforcement action.
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with that as well, I take it?
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David Migicovsky, Counsel (Ott-OPS)
And in some situations, the right approach may be to not take immediate enforcement action but, for instance, use the national framework for protests, and investigate and lay charges after the event, where appropriate.
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David Migicovsky, Counsel (Ott-OPS)
And so -- and that may be because immediate enforcement can sometimes be dangerous, in terms of the public and officer safety.
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David Migicovsky, Counsel (Ott-OPS)
And immediate action can inflame or incite, or lead to even death in some cases; correct?
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David Migicovsky, Counsel (Ott-OPS)
Am I correct that based on the OPP’s significant experience, they’ve learned some valuable lessons and have developed some expertise ---
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David Migicovsky, Counsel (Ott-OPS)
--- in protests?
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David Migicovsky, Counsel (Ott-OPS)
And much of that expertise comes from the experiences they’ve had, and I take it after a protest is handled by the OPP there’s probably a review and an analysis of what went well and what did not.
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David Migicovsky, Counsel (Ott-OPS)
And then you built on that experience to address policing protests in the future to hopefully do it better.
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David Migicovsky, Counsel (Ott-OPS)
And the situation in Ottawa, we’ve heard, was unique and unprecedented, are words that we’ve seen. And you agree with that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And a demonstration of this size involving large vehicles which became an occupation, and resulted in upheaval and trauma to the community, there’s no other municipal police service in Canada that’s experienced something like that, is there?
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David Migicovsky, Counsel (Ott-OPS)
And we’re going to be hearing from some other witnesses -- and you can tell me if you would agree with that -- that planning for major events can be a very labour-intensive job; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And so sometimes months of planning take place with consultation with many experts in different areas in preparation for an event.
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David Migicovsky, Counsel (Ott-OPS)
Right. The first mention of the Freedom Convoy, I think, was on the January 13th Hendon; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And then 15 days later it began to arrive in Ottawa, on the 28th of January.
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David Migicovsky, Counsel (Ott-OPS)
And so there wasn’t a lot of advance notice.
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David Migicovsky, Counsel (Ott-OPS)
And then the January 13th, I’m not going to pull it up in order to save some time, but I think you’re pretty comfortable with it but if you’re not please let me know. The January 13th Hendon Report did not provide a lot of information because not a lot of information was known at that time.
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David Migicovsky, Counsel (Ott-OPS)
Right. So there was no indication in that report of the size of the convoy?
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David Migicovsky, Counsel (Ott-OPS)
Okay. We have it marked so we can look at it. Do you recall it saying that there was no indication of what the convoy would do when it arrived?
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
In fact, in your summary that you prepared of the Hendon Report, you said the details of the convoy on January 13th were “Scant”.
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David Migicovsky, Counsel (Ott-OPS)
Can I ask, please, if you could turn up OPP00348. (SHORT PAUSE)
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David Migicovsky, Counsel (Ott-OPS)
And if you go -- if you scroll down a bit, there’s an email from you to Deputy Commissioner Cox at 6:30 on February 14th?
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David Migicovsky, Counsel (Ott-OPS)
And if we go to the second page of that email... Is it the full page? Thanks. And so the second-last paragraph, I just want to read that to you.
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David Migicovsky, Counsel (Ott-OPS)
“I should also mention there was a serious complication in relation to these activities. These individuals and entities are not, for the most part, participating in the realm of criminal activities. Most from Vancouver to Ottawa have engaged, as they said they would, in the lawful sphere. The arrests from Windsor to Ottawa illustrate this. So the balance of civil liberties and public safety crime prevention, not to mention proactive intelligence targeting, is a sensitive one, especially in these politicized times.” (As read) And you agree with that. You wrote that; correct.
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David Migicovsky, Counsel (Ott-OPS)
And so the first real reference to the convoy where we have some more information coming to Ottawa is in the January 20th Hendon Report, I believe you said.
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David Migicovsky, Counsel (Ott-OPS)
And so the January 20th one, again, without turning it up, you would agree with me I take it that there was some information that turned out not to come to fruition. And so I can give you some examples if you want.
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David Migicovsky, Counsel (Ott-OPS)
So I'll give you this example and one of the things in -- okay. So one of the things they did say was that it would almost certainly disrupt the movement of vehicular traffic. And that obviously is true. And that's true about most protests; correct?
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David Migicovsky, Counsel (Ott-OPS)
And then it said some participants may attempt to disrupt the business of government at the provincial and federal level by blocking access to Parliament. Do you remember that? Now that didn't happen in Ottawa because the work of Parliament went on throughout the convoy; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. I'm sorry, I -- my question wasn't clear. I'm talking about Ottawa. The work of Parliament continued; correct? Parliament sat during that period?
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David Migicovsky, Counsel (Ott-OPS)
Another thing noted at that time was that some individuals from the United States may join and that appeared occasionally in Hendon reports. That didn't occur either; did it?
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David Migicovsky, Counsel (Ott-OPS)
And most of the information as of January 20th was that the protesters were aiming at a lawful and peaceful event, and there's no -- is that true?
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David Migicovsky, Counsel (Ott-OPS)
And there was no indication in the January 20th report that the trucks would end up in residential neighbourhoods, and that they'd break noise by-laws? That wasn't part of the Hendon report; was it?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so there was no reference to perhaps idling their engines, or having hot tubs, or bouncy castles, or harassing residents, or engaging in anti-social behaviour?
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David Migicovsky, Counsel (Ott-OPS)
And there was an indication though that although it was planned to be peaceful, there was the possibility of lone actors or small groups engaging in activities that present public safety threats?
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David Migicovsky, Counsel (Ott-OPS)
And the possibility that lone actors and small fringe groups would present public safety issues was, in fact, addressed by the Ottawa Police and the OPP in preparation; correct? We had POU units here?
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David Migicovsky, Counsel (Ott-OPS)
And the threats to public safety, fortunately, didn't materialize on that first weekend; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And although obviously very inconvenient for residents, that first weekend was calm, no serious threats or acts of serious violence?
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David Migicovsky, Counsel (Ott-OPS)
The January 20th Hendon report, it was noted was difficult to complete comprehensively because it involved a wide array of individuals with multiple motivations and plans that were loosely formed?
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David Migicovsky, Counsel (Ott-OPS)
And so another Hendon report on January 22nd that I believe you referenced earlier notes that the number of potential participants in Ottawa was unknown, and I believe what we see on it is that online claims of the size are of unknown reliability.
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David Migicovsky, Counsel (Ott-OPS)
And the January 22nd Hendon report in the assessment section also notes that an Intelligence gap at that point is the number of participants; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the January 22nd Hendon report has a section headed tactical considerations. And I see in that section, I don't know if this -- you recall this, that one organizer there claimed a million individuals and 10,000 trucks would attend. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
That didn't happen; did it?
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David Migicovsky, Counsel (Ott-OPS)
January 26th, so that's another Hendon report, that's 2 days before the arrival; am I right?
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David Migicovsky, Counsel (Ott-OPS)
And that has a section called the seriousness of the threats and lists a number of points in terms of the seriousness. None of those threats mention the horns, or the idling, open fires, harassment of residents, that's not one of the threats; is it?
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David Migicovsky, Counsel (Ott-OPS)
And again, it talks about the potential presence of individuals who espouse fringe ideological ideologies and have access to weapons. And that too wasn't a problem in Ottawa; correct?
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
And I believe that Hendon report indicates, so two days before, and it's I believe in bold, that Project Hendon has not identified any concrete, specific or credible threats with regard to the convoy.
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David Migicovsky, Counsel (Ott-OPS)
And the concern about the heavy machinery, that heavy machinery wasn't used for any destructive purposes in Ottawa; was it?
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David Migicovsky, Counsel (Ott-OPS)
And so ---
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David Migicovsky, Counsel (Ott-OPS)
And if we look at January 26th again, even 2 days before the arrival, we still don't have any good indications -- and I'm not being critical of the intelligence, of the numbers and the length of the stay; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the OPP and the Ottawa Police Service did work together from even before the first convoy arrived and had POU units in Ottawa, cooperated with each other?
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David Migicovsky, Counsel (Ott-OPS)
Okay. I didn't see any memos or briefings or emails from the OPP to the OPS saying what are you doing, what are your plans. You're not aware of such memos; are you?
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David Migicovsky, Counsel (Ott-OPS)
And the OPP, I take it, knows that if Ottawa Police needs assistance, it's likely to call on the OPP because of their size. You have a very large police service?
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David Migicovsky, Counsel (Ott-OPS)
And OPS has -- OPP has PLTs who were activated for this protest?
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David Migicovsky, Counsel (Ott-OPS)
And OPS also had PLTs who were activated before the protest as well, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And if I look at the Hendon Report of January 27th, the day before, I still see that indication in bold that there's no concrete, specific, or credible threat identified, correct?
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David Migicovsky, Counsel (Ott-OPS)
If you could please turn up OPP00815, page 7?
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
OPP00815. Thank you. If you could please turn to page 7, under the section "Assessment". So this is the January 28th report, so January 28th being the date that they're here. And so what we see in the first paragraph is, the available information indicate that the protestors plan to remain in Ottawa at least until February 4th, 2022, correct?
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David Migicovsky, Counsel (Ott-OPS)
And then we see -- we continue to identify indicators to support at least some protestors remaining beyond the weekend of 2022/01/29/30. So in other words, some of them are going remain past 29/30, and some of them are going to remain until February 4th, correct?
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David Migicovsky, Counsel (Ott-OPS)
And finally, my final point is, I understand that the OPP provided some assistance to Toronto when they had the protest occurring in Toronto the following week, correct?
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David Migicovsky, Counsel (Ott-OPS)
Yes, and there was another one as well.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so when I looked at your notes, I saw that you, in fact, attended meetings with Toronto prior to the protest arriving in Toronto. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you referenced what happened in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
What -- the experience?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. Those are my questions.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, Superintendent. My name is David Migicovsky; I’m a lawyer here for the Ottawa Police Service. How are you?
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David Migicovsky, Counsel (Ott-OPS)
One of the things you mentioned yesterday, and I believe it’s also in your notes as well, is that police actions in Ottawa, you indicated, can have a provincial and a national impact, so there’s a need for the police to be measured and careful in their approach to dealing with the protesters; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And how the police treat the protesters, I take it, from the time they arrive in Ottawa to the time they leave, will, therefore, be expected to have an impact, both in Ottawa and nationally?
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David Migicovsky, Counsel (Ott-OPS)
And I believe you said that once the convoy was en route to Ottawa, and some people had come from, you know, the West Coast, far away, there was no way that you could just cause them to turn around and go home without making their statement in Ottawa somehow; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the practice of the police prior to the Freedom Convoy and previous protests was to let groups come to town and protest even if it would cause significant traffic disruption and inconvenience to residents, as long as it was peaceful and not engaging in criminality; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Right. But if somebody says, “I’m coming to protest for one day,” or, “I’m coming to protest for three days,” but it’s going to be peaceful and there’s no criminality, you’ll let them protest; fair enough?
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David Migicovsky, Counsel (Ott-OPS)
The OPP has dealt with long-term protests.
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David Migicovsky, Counsel (Ott-OPS)
Sorry?
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David Migicovsky, Counsel (Ott-OPS)
Right. You personally have not.
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David Migicovsky, Counsel (Ott-OPS)
And some of those demonstrations went on for long periods had injunctions that ---
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David Migicovsky, Counsel (Ott-OPS)
The Hendon reports, as I recall, indicated that the groups did espouse peaceful protests, although there were concern about fringe groups and lone wolves; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And the reports from the PLT’s prior to the convoy arriving in Ottawa had been that they were peaceful and cooperative with police in other jurisdictions?
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David Migicovsky, Counsel (Ott-OPS)
And the reports from Hendon did not indicate honking horns or idling engines or harassment or antisocial behaviour or fireworks; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And blocking the access to the Wellington Street, or to a large chunk or to chunks of downtown, could have meant that the trucks would go elsewhere, you said, in the city.
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David Migicovsky, Counsel (Ott-OPS)
And that would mean, though, potentially that the footprint could be bigger and there could be more disruption in residential neighbourhoods; fair?
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David Migicovsky, Counsel (Ott-OPS)
And because peaceful protest is lawful, and because of the need to take a measured approach, the OPP, as I understand it, is a huge proponent of the use of PLTs.
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David Migicovsky, Counsel (Ott-OPS)
They connect with groups; they get contacts, they form relationships.
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David Migicovsky, Counsel (Ott-OPS)
And in fact, the OPP PLTs here did have their PLTs connect with the protesters well prior to arrival; correct?
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David Migicovsky, Counsel (Ott-OPS)
And those PLT who were in contact with the protesters were not, I take it, telling them the message, “You’d better not come to Ottawa. You’re not welcome.” Right? They were trying to establish relationships because they understood it to be a peaceful protest.
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David Migicovsky, Counsel (Ott-OPS)
And, in fact, consistent with that role that PLTs assisted the convoy in arriving safely in Ottawa.
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David Migicovsky, Counsel (Ott-OPS)
And I think you said you’d read the Hendon reports and became involved, if I have that right, on January 24th as the OPP’s Strategic Commander in charge of policing?
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David Migicovsky, Counsel (Ott-OPS)
And you set up an emergency operation centre that involved traffic, communications, PLTs.
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David Migicovsky, Counsel (Ott-OPS)
And the plan focussed on traffic along the highways from the convoy; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the 400 series of highways, I believe you said, the OPP has jurisdiction on?
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David Migicovsky, Counsel (Ott-OPS)
And that is the -- the 417, of course, leads directly into Ottawa, downtown; correct? It's the -- becomes the Queensway in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
And what you and your team did, as I understand it, was ensure that there was the safe flow of traffic and that they could arrive safely, and you and your team took steps to coordinate planning of that with the Ottawa Police?
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David Migicovsky, Counsel (Ott-OPS)
And so you liaised with Deputy Chief Bell?
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David Migicovsky, Counsel (Ott-OPS)
And he was cooperative in your interactions with him?
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David Migicovsky, Counsel (Ott-OPS)
And so you had an inspector, I believe her name was Dawn Ferguson, and you had a staff sergeant, Lisa Nicholson coordinate with the Ottawa Police?
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David Migicovsky, Counsel (Ott-OPS)
And Inspector Ferguson, we have a lot of Fergusons in this case, but Inspector Dawn Ferguson of the OPP was the officer assigned to be the representative of the OPP, and then I understand she worked with the OPS and others at the NCRCC; correct?
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David Migicovsky, Counsel (Ott-OPS)
And she was there as of January 25th, so a few days before the protesters arrived.
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David Migicovsky, Counsel (Ott-OPS)
And Staff Sergeant Nicholson, did you say?
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David Migicovsky, Counsel (Ott-OPS)
Nicholas, I'm sorry, was placed at a separate OPS Command Centre outside of -- with the Ottawa Police; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And she assisted Inspector Ferguson.
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David Migicovsky, Counsel (Ott-OPS)
And the OPP worked with the OPS to control Highway 17 coming into Ottawa and make sure that you didn't have blockades on the highway?
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David Migicovsky, Counsel (Ott-OPS)
And the -- your team, along with the OPS team, ensured that -- wanted to make sure that trucks didn't just abandon their vehicles on the 417, on the Queensway in downtown Ottawa, but that they safely got off and were staged somewhere?
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David Migicovsky, Counsel (Ott-OPS)
One of the things, and I can turn up the document if you need it, but I think you said this yesterday, was you talked about Chief Sloly on the weekend of the February 5th weekend, the 4th, 5th, wanting -- and again, I think the following weekend as well, wanting to shut down all the 417 offramps. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And Inspector Ferguson, as I understand, said in one of those emails, "Will do our best to help the convoys to the identified exits, but the OPP is not going to permanently close any 417 exits unless there's an immediate threat to public safety." And there wasn't; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so the OPP did not exercise its power to close all the exits to downtown as a result?
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David Migicovsky, Counsel (Ott-OPS)
And you instead controlled access so that they could come in safely?
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David Migicovsky, Counsel (Ott-OPS)
Right. And -- but you did make clear that, and I believe she says it in her email, "we will not permanently, like, close all the exits unless there is an immediate public safety risk, and there isn't."
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David Migicovsky, Counsel (Ott-OPS)
Sure. And because if you close everything it not only affects the convoy but it affects everyone else.
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David Migicovsky, Counsel (Ott-OPS)
All of the residents, trucks that are -- have legitimate business downtown delivering goods and supplies, other motorists, residents who have a need to be in that downtown core; correct?
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David Migicovsky, Counsel (Ott-OPS)
And we saw one of the Hendon reports had pictures of some heavy equipment, an air compressor and an ATV.
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David Migicovsky, Counsel (Ott-OPS)
And you didn't receive any instructions, I take it, to stop those transports or to inspect them or to not let them into the city, did you?
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David Migicovsky, Counsel (Ott-OPS)
And some of those -- and there were only a couple of pieces of heavy equipment that we saw; correct?
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David Migicovsky, Counsel (Ott-OPS)
And some of those may well have come into the city on a 400-series highway.
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David Migicovsky, Counsel (Ott-OPS)
If we could please turn up OPP0774, please. Which are -- I don't know if you have the hard copy of it.
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David Migicovsky, Counsel (Ott-OPS)
You do. So it's your January 25th notes.
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David Migicovsky, Counsel (Ott-OPS)
And it is on page 3 of 167 in the PDF. And so this is January 21st, and you'll ---
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David Migicovsky, Counsel (Ott-OPS)
January 25th, I apologise. And you'll see at 8:30, you request someone with the Ministry of Transport of Ontario: "...to see if they plan to use weigh scales for convoy trucks." Correct?
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David Migicovsky, Counsel (Ott-OPS)
And the MTO has no plans to do so; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so one of the things that perhaps could have prevented some of that heavy equipment or some of those vehicles was to have weigh stations opened along the highway; correct? But the MTO decided not to do that.
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David Migicovsky, Counsel (Ott-OPS)
And if I could please ask you to look at, again this is in your -- it's not in your notes, I apologise. It's OPP0773. Thanks. That's, as you'll recall, is the will-say statement that you prepared I believe, yeah, in March of 2022?
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David Migicovsky, Counsel (Ott-OPS)
And so you prepared that at the time when the events were pretty clear in your mind, you just finished dealing with the convoy; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you'd read the Hendon reports back in January; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so if we could please look at page 2 of that -- of the PDF of that. And on the third bullet, you indicate: "It became clear on January 29th...that many of the convoy participants had plans to stay for a [long] period of time and the convoy had attracted thousands to the downtown core." Correct?
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David Migicovsky, Counsel (Ott-OPS)
And then if we also look - - if we could scroll down to the bottom of the page. Sorry, just go up a bit. I'm sorry, go to the -- sorry, a little bit - - go up to the top again if you don't mind. I'm sorry, if you could go to the following page as well? Yeah. Just a little bit higher. Thanks very much. You'll see in the bullets that we have on the screen, on February 2nd, it then became clear that this event was no longer a traffic related event; correct?
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David Migicovsky, Counsel (Ott-OPS)
In your notes, and I -- again, we can turn them up, but if you recall, then, you know, I don't need you to, but I know in your notes of February 5th, and it's on page 28 of your notes, but you have a note that the Chief is in charge and won't change it.
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David Migicovsky, Counsel (Ott-OPS)
I thought it was. I was trying to also give you yours, but I'll -- it is, I believe, page 28 of your notes, which is February 5th, and it is on page 28, which is the second page.
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David Migicovsky, Counsel (Ott-OPS)
And you see what ---
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David Migicovsky, Counsel (Ott-OPS)
--- I'm referring to?
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David Migicovsky, Counsel (Ott-OPS)
Yeah, can you just explain that? What did you mean the Chief is in charge and won't change it?
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David Migicovsky, Counsel (Ott-OPS)
And so what he's saying is this is a problem that Chief Sloly is saying he has to be in charge of this, no one else is; is that right?
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David Migicovsky, Counsel (Ott-OPS)
What he wanted.
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David Migicovsky, Counsel (Ott-OPS)
Thank you. The following -- on page 29 of your notes as well, you also have a note that, "[Inspector -- Commissioner Carrique must become engaged with --] need to display [i.e.] did a measured approach. Inspector Carrique needs to become engaged with Sloly over members and risks with his unreasonable demands." And what were those unreasonable demands that were being referred to?
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David Migicovsky, Counsel (Ott-OPS)
And I just have a few further questions. On February 6th in your notes, and you've actually put an asterisk on it, and just for the benefit of those who are following it online, it is page 28 of 167 of the PDF, but I don't need you to call it up. You indicate at the bottom, "lack of autonomy to make decisions." Who's that a reference to?
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David Migicovsky, Counsel (Ott-OPS)
I apologize. I didn't mean to cut you off.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And you understood that that lack of autonomy was as a result of Chief Sloly's direction, as I understand?
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David Migicovsky, Counsel (Ott-OPS)
But in your dealings with Deputy Chief Bell and Deputy Chief Ferguson, they appeared to welcome the assistance of the OPP and they were cooperative with you and engaged with you; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
Sorry. Last question then, you talked about the PLTs, and you understood that Staff Sergeant John Ferguson was in charge of the PLTs in Ottawa; is that right?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you understood that he too was frustrated with the lack of involvement of the PLTs. He was supporting what the OPP was -- wanted?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. Those are my questions.
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David Migicovsky, Counsel (Ott-OPS)
If I can assist my friend. Those are not scribe notes.
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David Migicovsky, Counsel (Ott-OPS)
Those are notes of Christiane Huneault ---
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David Migicovsky, Counsel (Ott-OPS)
--- who was general counsel. So they are ---
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
Yes. So they are not scribe notes ---
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David Migicovsky, Counsel (Ott-OPS)
--- they are ---
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David Migicovsky, Counsel (Ott-OPS)
--- counsel's notes.
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David Migicovsky, Counsel (Ott-OPS)
I did have ---
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry. David Migicovsky. Counsel for the Ottawa Police Service. I, you know, had some concern when this document went in that it’s a summary of sentences that are taken out of context. I believe what the witness asked for when he was asked the question is, “It would be helpful if I could see the full report.” So rather than give him an extract, which has selected pieces of information, why not give him the document that he asked to review so that he can fairly answer the question?
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky, counsel for the Ottawa Police. Perhaps I missed it as well as the previous document, but I do not see them in the witness documents.
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David Migicovsky, Counsel (Ott-OPS)
I appreciate that, Mr. Commissioner, but the whole point of having the documents beforehand is that the witness has an opportunity to review the documents before they testify. So the documents, under the rules, were supposed to be posted on the ---
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David Migicovsky, Counsel (Ott-OPS)
So the previous document, by the time I checked and realized that was also not in the witness section of the documents, so just in fairness to the witness -- I appreciate sometimes things come up at the last minute, but the whole point was so that he would be familiar with it. So I don't know if my friend intends to continue asking about documents that are not in the database, but if so, I would suggest that that would not be a fair way of proceeding.
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David Migicovsky, Counsel (Ott-OPS)
I'm not sure what the document is, but I believe that my friend may have highlighted it.
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David Migicovsky, Counsel (Ott-OPS)
It has some annotations on it as well, and I guess I'd be concerned about what's the annotations on it. But ---
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky, counsel for the Ottawa Police. Good afternoon, Chief Bell.
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David Migicovsky, Counsel (Ott-OPS)
Many of my questions have been answered, but I do have a few areas that I want to talk to you about. One of the things we heard last week was some information forwarded by Mr. Ball of the Ottawa Hotel Association.
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David Migicovsky, Counsel (Ott-OPS)
And I believe that was brought to the attention of the police. And did the police follow up that information to determine whether it was corroborated?
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David Migicovsky, Counsel (Ott-OPS)
Sure. Could I ask you please, Mr. Clerk, to turn up OPS14525, please? And it’s page 31. I’m sorry, could you back? I’m sorry. It’s page 3. These are your notes, Chief, of an update briefing on the 29th of January 2022. So that would be the Saturday after the convoy had arrived.
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David Migicovsky, Counsel (Ott-OPS)
And you have a note about some information you obtained at that point from the hotels that day. What was the information that you obtained that day?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. You can take that off. Thank you. I want to move on and talk about the question of temporary parking. We’ve heard some evidence in this proceeding about temporary parking or staging for trucks being arranged by the City with the assistance of the police. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And can you explain, is that something new? Or is that something that has been done in the past with other demonstrations in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
And has it been done for other special events, however, in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
And why was it done in this case? What would be the alternative to not doing it?
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David Migicovsky, Counsel (Ott-OPS)
Thank you. You talked earlier in your evidence about heavy machinery, and there was reference to a crane being in downtown Ottawa. And I believe you explained that it was not a crane; correct?
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David Migicovsky, Counsel (Ott-OPS)
And can you just remind me what the -- what that piece of equipment was?
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David Migicovsky, Counsel (Ott-OPS)
And what was it used for?
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David Migicovsky, Counsel (Ott-OPS)
And was it used to cause any damage?
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David Migicovsky, Counsel (Ott-OPS)
And apart from that piece of equipment, was there any other heavy equipment allowed into the red zone?
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David Migicovsky, Counsel (Ott-OPS)
You’ve talked about the Ottawa Police’s experience with demonstrations and you’ve told us that you have quite a bit, or the Ottawa Police Service has quite a bit of experience. Can I ask you a question more specifically, does the Ottawa Police Service has experience with protestors using vehicles?
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David Migicovsky, Counsel (Ott-OPS)
And can you tell me a little bit about that?
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David Migicovsky, Counsel (Ott-OPS)
And did that result in a staging of vehicles on Wellington Street?
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David Migicovsky, Counsel (Ott-OPS)
And prior to the Freedom Convoy demonstration, was it the practice of the City to direct the closure of streets and creation of exclusion zones prohibiting vehicular traffic to groups of protestors?
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David Migicovsky, Counsel (Ott-OPS)
And what is the impact -- I understand that is now being done, correct, by ---
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David Migicovsky, Counsel (Ott-OPS)
The City of Ottawa, you indicated has delegated authority, and in consultation with the police, those exclusion zones are being created?
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David Migicovsky, Counsel (Ott-OPS)
What is the impact of creating these vehicular exclusion zones on the residents of the community or the people who have legitimate reason to travel to those exclusion zones?
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David Migicovsky, Counsel (Ott-OPS)
And the -- what about the police resources needed now that you create these vehicular exclusion zones?
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David Migicovsky, Counsel (Ott-OPS)
And was it your -- was your past experience or the Ottawa Police Service’s past experience successful in terms of resolving protests, including those with vehicles, without the type of community trauma we saw in this case?
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David Migicovsky, Counsel (Ott-OPS)
Prior to ---
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David Migicovsky, Counsel (Ott-OPS)
--- the convoy. I want to move on and talk about the Hendon Reports. And I want to ask you some information about -- some questions about what information can be gleaned from the Hendon Reports? And just before we look at some specific reports, just generally, can you tell me what the reports said about whether or not the protestors were expected to be peaceful and law abiding?
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David Migicovsky, Counsel (Ott-OPS)
And we’ve heard that there was a traffic plan for protesters, and I wonder if we could please turn up OPP0426, please. (SHORT PAUSE)
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David Migicovsky, Counsel (Ott-OPS)
Yes. It would be OPP00000426.
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David Migicovsky, Counsel (Ott-OPS)
I’m going to move on to -- that’s okay.
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David Migicovsky, Counsel (Ott-OPS)
Can we just scroll down, please? Thank you. Can we just scroll down and if we go to the next -- keep going. And then there is another plan, however, that I’m going to ask that we turn up that was a more detailed plan with a number of subplans; is that correct? And that is OPS04221. (SHORT PAUSE)
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David Migicovsky, Counsel (Ott-OPS)
I’m going to move on. As I understand it, we’ve heard that there was an initial traffic plan, and then we heard that there was a more robust plan with a number of subplans prepared for that weekend. Is that your understanding?
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David Migicovsky, Counsel (Ott-OPS)
And a question was raised last week as to whether that was something just pulled off the shelf. Do you have any comment in response to that?
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David Migicovsky, Counsel (Ott-OPS)
And did the Hendon reports contain reference to the possibility of fringe groups and lone actors and the possibility of violence?
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David Migicovsky, Counsel (Ott-OPS)
And were those seen as significant risks?
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David Migicovsky, Counsel (Ott-OPS)
As significant risks, ---
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David Migicovsky, Counsel (Ott-OPS)
And so did the plan address the possibility of there being violence or serious criminality?
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David Migicovsky, Counsel (Ott-OPS)
And we’ve heard about POU unit who are specially trained. In advance of the demonstration, did OPS take steps to get additional POU units on alert to be in Ottawa, if necessary, in anticipation of potential violence from fringe groups?
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David Migicovsky, Counsel (Ott-OPS)
And was their use, in fact, necessary?
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David Migicovsky, Counsel (Ott-OPS)
I’m talking about in the first weekend.
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David Migicovsky, Counsel (Ott-OPS)
Thank you. We’ve -- I want to ask you about a couple of the Hendon reports, and I wonder if we could start with the January 20th report itself, rather than the summary. And so if I could ask you, please, to turn up OPP00001024? And so you’ll see that is the January 20th one. And we’ve had our attention drawn to certain passages, and I wonder if you could turn to the second page, please. Thank you. And the second paragraph indicates: “Open source research has identified a Facebook page titled ‘Freedom Convoy 2022’.” Then it tells you the number of “likes” and how many it was being followed by: “All of the comments...expressed support for this event.” What do we see in the next sentence about the number of people supporting the event and the number who may participate as of the 20th, so eight days before?
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David Migicovsky, Counsel (Ott-OPS)
And I’d like you also to look at the third-to-last paragraph on that same page. So if we just -- what information -- what do you take from the information in that third-to-last paragraph on that page?
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David Migicovsky, Counsel (Ott-OPS)
And were the aggressive tactics prepared for?
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David Migicovsky, Counsel (Ott-OPS)
And if you could please go to the Assessment section on page 4? Oh, sorry; perhaps -- sorry, go back to the previous page, page 3. Yes, just the bottom of the page 3 and the Assessment section. And then you’ll see that each Hendon report has an Assessment section; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And if we go, then, to the -- I just wanted you to see the heading. If we then go to the next page under that heading, the second paragraph: “The available information suggests that the convoys may comprise thousands of tractor-trailers. It is possible that a large number of smaller vehicles, including private vehicles, may join them.” Did that, in fact, materialize?
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David Migicovsky, Counsel (Ott-OPS)
And does the January 20th report tell you how many people are going to attend, and how many vehicles?
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David Migicovsky, Counsel (Ott-OPS)
How many will stay?
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David Migicovsky, Counsel (Ott-OPS)
And whether they will engage in the type of criminality or antisocial behaviour we’ve heard about during this inquiry?
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David Migicovsky, Counsel (Ott-OPS)
And so that’s on the 20th. Based on what we’ve heard here that ultimately the Ottawa Police Service needed, I think, several thousand additional resources, based on what you see here, would it have made sense to mobilize 2,000 additional officers from somewhere else at this point in time and bring them to Ottawa, based on this information?
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David Migicovsky, Counsel (Ott-OPS)
Can I ask, please, to turn up OPP00001476, on the first page. That is the Hendon Report from the afternoon of January 23rd. And if we could keep scrolling to the fourth paragraph, the fourth bullet, rather. "Information...indicates that convoy organizers are cooperating and have developed a thorough and well-organized plan for conducting the event safely." Is that information important to the Ottawa Police Service in its intelligence assessment?
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David Migicovsky, Counsel (Ott-OPS)
And how do you monitor the behaviour of the convoy prior to their arrival in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
Can I ask you, please, to turn up the January 27th Hendon Report, which is OPP00000813? So you'll see this is on the Thursday. Is this the first time we have an indication of numbers?
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David Migicovsky, Counsel (Ott-OPS)
Thank you. Can I ask you now to go to the January 28th Hendon Report, which is the Friday? And that would be the Friday that the first trucks start to arrive in Ottawa; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so if we could please turn to OPP00000815. Thank you. And so now we have -- so this is the day of, and there is an estimate of the total number of vehicles ---
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David Migicovsky, Counsel (Ott-OPS)
--- which indicates that they are estimates and subject to change?
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David Migicovsky, Counsel (Ott-OPS)
And when it says they're subject to change, does that mean it might go up, might go down?
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David Migicovsky, Counsel (Ott-OPS)
And if you could please turn to page 7 of the document, and just if we can scroll down to the Assessment section. Can you just read the first paragraph in terms of the information that the OPP provided in this Hendon report with respect to the duration -- expected duration? Can you just read that out loud?
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David Migicovsky, Counsel (Ott-OPS)
Thank you. And so what do you take from that sentence in which there's an indication that some protesters will remain beyond the weekend, in the second sentence, and the first sentence which talks about them remaining until the 4th of February?
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David Migicovsky, Counsel (Ott-OPS)
Just -- thank you very much. Just a couple more questions. I want to talk about the events of the first weekend. And am I correct that the Ottawa Police did not simply allow an endless stream of convoys or vehicles to come into the core?
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David Migicovsky, Counsel (Ott-OPS)
Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And so were there strategies in place that were used and that were successful in diverting some convoy members from coming into the core of downtown?
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David Migicovsky, Counsel (Ott-OPS)
And on that first weekend, in conjunction with your policing partners, were there periods of time where other traffic mitigation measures were taken, such as dealing with bridges, off ramps?
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David Migicovsky, Counsel (Ott-OPS)
And finally, we've heard some individuals during this Inquiry talk about officers not coming down hard enough or not taking enforcement actions. I just want to be clear, was any direction given to police officers to ignore criminality?
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David Migicovsky, Counsel (Ott-OPS)
And so just one final question. So are there circumstances, however, where in the exercise of their discretion it may not be appropriate for a police officer to take enforcement action?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. Those are my questions, thank you.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Superintendent. My name is David Migicovsky. I appear for the Ottawa Police Service. Superintendent, I understand from your evidence earlier that the PLTs came about after Ipperwash and an inquiry that was held at that time, as after Ipperwash; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And so that’s 1995; am I correct?
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David Migicovsky, Counsel (Ott-OPS)
And as a result, the OPP is very experienced in the PLT program and has a very well- developed program?
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David Migicovsky, Counsel (Ott-OPS)
And it’s recognized as one of the leaders in this area, certainly in Canada?
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David Migicovsky, Counsel (Ott-OPS)
And the OPP, as a result of its considerable expertise, provides support to other services, as well as training?
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David Migicovsky, Counsel (Ott-OPS)
And is very -- the OPP is very experienced in the use of PLTs?
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David Migicovsky, Counsel (Ott-OPS)
And earlier -- we don’t need to call up he document but I believe we looked at the OPP’s policy, and the policy provides for, after an event, discussing the lessons learned and then working to implement what we learned; is that part of the process?
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David Migicovsky, Counsel (Ott-OPS)
And so the OPP continues to learn after every event; even with its vast experience, it learns more?
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David Migicovsky, Counsel (Ott-OPS)
And not all police services, you’ll agree with me, obviously, have the same level of training and expertise as does the OPP when it comes to the use of PLTs?
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David Migicovsky, Counsel (Ott-OPS)
And you’re aware that since this event, the OPS have augmented their commitment to PLTs?
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David Migicovsky, Counsel (Ott-OPS)
That since the -- this event in Ottawa, that the OPS have augmented their commitment to PLTs.
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David Migicovsky, Counsel (Ott-OPS)
Right. And they have a lot more of them, more training?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Superintendent, I noticed when I was reviewing the notes of various OPP officers, there was a S/Sgt. Lisa Nichols. “Nichols”, is that the name? You don’t know her?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so what I noticed in her notes, and I just wonder whether you are aware of it, that she indicates that she reviewed OPS’ plans and that she met OPS regularly. Were you aware of that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And if I could you to turn OPP0556, please. Thank you very much. So if you need to, this is an email from you, Superintendent, to Giselle -- to Gary Maracle and Giselle Walker and various other individuals. And I'll scroll to the bottom so you can get the context. So you'll see at the bottom -- if you could keep scrolling please -- yeah, sorry, if you could just go up to where Chief Sloly -- sorry. Yeah, stop. Sorry, if you could go down? You'll see this is an email from Chief Sloly and he talks about the purpose of the command briefing that morning and what he wants to happen. And then if you scroll up above that email, you'll see Jason Younan sends an email to Superintendent Alakas and Abrams about the plans to address Chief Sloly's message below, and says: "I'm very concerned at the scope and intensity of the chief's messaging and his impact on Ottawa Police members and supporting agencies." (As read) And then if you go above that, you'll see you've indicated some potential concerns about that.
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David Migicovsky, Counsel (Ott-OPS)
And so I guess you had some concerns about Chief Sloly's messaging and what he wants to happen at that time; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so you indicated that you had some concerns about what was happening, and your concerns, I guess, were with respect to what involvement PLT would have in that process?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. I have no further questions.
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David Migicovsky, Counsel (Ott-OPS)
It’s not a trade.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Commissioner. My name is David Migicovsky.
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David Migicovsky, Counsel (Ott-OPS)
I’m appearing for the Ottawa Police Service. How are you?
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David Migicovsky, Counsel (Ott-OPS)
Not to badly, thanks. I want to talk about the Hendon Reports. And I understand from your evidence that you’re very familiar with those Reports?
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David Migicovsky, Counsel (Ott-OPS)
That’s what we aim for.
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David Migicovsky, Counsel (Ott-OPS)
The amount of information that the OPP obtained about the convoy and its plans for Ottawa I take it was something that evolved with time? Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And so if we looked at -- we know that the first reference to the convoy coming was on January 13th. But at that point, there was little known about it. in fact, even the dates of arrival in Ottawa were not yet known? Is that right?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so on -- as time passed, I think more information became known; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so on January 20th, I understand there was still more information, but at that point, there were no numbers with respect to the number of demonstrators or vehicles? Is that right?
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David Migicovsky, Counsel (Ott-OPS)
And so I can call it up, although I think it’s ---
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David Migicovsky, Counsel (Ott-OPS)
--- already in the record. But if you’d like to see the January 20th one, I can.
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And as the convoy grew closer to Ottawa, there was more information obtained, and the type of information, and the reliability of the information also changed; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so there's a constant evolution, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so when I looked at the Hendon Reports on January 22nd and 23rd, for instance, the information that I see there will be more current than the information I see on the 13th or the 20th, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. But sometimes there's contradictory information. Something is in one Hendon Report that is not in another, or there's different information because there's social media that’s being monitored in those reports, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so I see, sir, that on January 23rd, is actually the first time that we learn in the Hendon Reports of an arrival date in Ottawa of the 28th, which is the Friday. Do you recollect that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Well, it is in the record, so I don’t want to waste time by ---
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David Migicovsky, Counsel (Ott-OPS)
--- taking you to it, but what I understand is that the very first time we see an indication of numbers in the convoy is on January 25th, and those are very preliminary numbers, and so if you can accept that you do recall that there was a delay until numbers of vehicles in the convoy became known; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Sure. I'm not suggesting -- I apologize -- I'm not suggesting that there's any fault, I'm just saying you get more information as you get closer in time and the information evolves, right?
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David Migicovsky, Counsel (Ott-OPS)
And so I see that on -- when numbers do appear -- and there's some more numbers in the Hendon Report on January 26th -- I see there's always a caveat that you can't be certain about the numbers. That’s something that’s unknown at this point and can constantly change, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so what I see when I looked at the January 26th Hendon Report is I see something called "Intelligence Gaps", and an intelligence gap means you don’t have information about the subject matter listed in -- under intelligence gap, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so what I see on the January 26th Hendon Report is, there is an intelligence gap as to plans for departing. And so what that means is, there is no information about whether they're staying or whether they're leaving or when they're staying until, correct, because it's a gap.
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David Migicovsky, Counsel (Ott-OPS)
Well, I think you've just agreed with me that an intelligence gap means you don’t have information about it. So I'm happy to turn up the January 26th one just so that you can see where I'm taking that from, okay?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. I wonder if we could -- just because we've referred to it -- see OPP00000811? And so if we could scroll towards the page 6 or 7, say? Okay. Yeah, sorry, perfect, thank you. And so you'll see "Intelligence Gaps", and then and intelligence gap is the last bullet, plans for departing Ottawa.
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David Migicovsky, Counsel (Ott-OPS)
So that tells us we don’t know when they are departing Ottawa. We don’t know whether it's Saturday, Sunday, Monday, Tuesday, or in a week from now, correct?
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David Migicovsky, Counsel (Ott-OPS)
Because it's a gap. And in fact, it's actually -- and we don’t see the colours on this version -- but there are certain things that are shown as priority intelligence gaps, which means it's even more important to get information about those things, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you would agree with me that the last bullet, the gap as to the plan for departing Ottawa, which you don’t have information about, is not a priority, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So we don’t, unfortunately, have the -- but my understanding is the bold print is what is in red, and so I'm simply suggesting that the print, the last bullet, which is not bolded, was not shown as a priority intelligence gap.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I take it from this Hendon Report, there's no indication that some are staying or some are leaving or some may be staying for a period of time and some may be staying for longer. We don’t find that in this Hendon Report, do we?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Let me move on. There was an email, if we could turn it up, please? It's OPP00001007. And so that’s an email on the 28th?
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David Migicovsky, Counsel (Ott-OPS)
If you just want to scroll down to the bottom -- from Deputy Commissioner Cox. Deputy Commissioner Cox reports to you; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And so Deputy Commissioner Cox says on the 28th, which is on the Friday, that: "There's been great collaboration among our intelligence bureau units as well as with our policing partners along the route to Ottawa, and the established integration and cooperation between the RCMP, Ottawa Police, Sûreté du Québec, Parliamentary Protection Services, and the OPP, along with the planning undertaken by the OPS, have positioned us well to maintain safety and security throughout the weekend." Correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And then if you scroll up, and Supt. Morris is the one who's in charge of intelligence at the OPP, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so I believe that what Supt. Morris does is he concurs with that, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
And as I understand it, the OPP had individuals embedded at the NCRCC in the days leading up to the arrival of the convoy?
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David Migicovsky, Counsel (Ott-OPS)
And would have been working side by side with the Ottawa Police, the RCMP, PPS, et cetera?
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David Migicovsky, Counsel (Ott-OPS)
And your officers would have also been integrated into the JIG, the Joint Intelligence Group?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And you would assume that the individuals at the NCRCC would be -- who are working together would be sharing information with each other?
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David Migicovsky, Counsel (Ott-OPS)
My understanding, sir, and I take it you won't disagree with me because you simply don't know, is that the information was then fed up into the JIG.
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David Migicovsky, Counsel (Ott-OPS)
And I take it that the OPP recognizes the right to peaceful protest?
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David Migicovsky, Counsel (Ott-OPS)
And although that -- there's a recognition as well that peaceful protest can result in severe inconvenience for residents of a city and a neighbourhood?
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David Migicovsky, Counsel (Ott-OPS)
And significant traffic disruption?
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David Migicovsky, Counsel (Ott-OPS)
And Superintendent Cox noted, and I won't take you to the document ---
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David Migicovsky, Counsel (Ott-OPS)
Sure. I gather in the document that I think Mr. Curry took you to, we saw that the OPP was of late receiving requests for intelligence and open source information on societal actors and many of those are social movements that diverge from the main stream. And there was some concern expressed about requests for information that did not relate to intelligence operations. You recall that?
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David Migicovsky, Counsel (Ott-OPS)
And the concern was potential targets who may not be engaging in criminal actions but oppose government policy and engage in protests.
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David Migicovsky, Counsel (Ott-OPS)
And so we have to distinguish there are those individuals who are not engaged in criminal activities but support peaceful protests, the OPP would support their right to exercise their right to protest?
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David Migicovsky, Counsel (Ott-OPS)
And certainly, the information that was available prior to the arrival of the convoy was that by and large it was expected to be peaceful; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. There was a need to address those sort of fringe elements, and in fact, that was planned for. There was a POU plan. The OPP was available to assist in case there was going to be a January 6 type event?
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David Migicovsky, Counsel (Ott-OPS)
And we therefore expected that the rest of the protesters were going to be, for the most part, peaceful?
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David Migicovsky, Counsel (Ott-OPS)
No, I'm talking about we had plans for the fringe movements and for lone actors.
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David Migicovsky, Counsel (Ott-OPS)
But for the most part, the intelligence that was coming was that the majority, it was expected, were professing to be espousing peaceful objectives?
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David Migicovsky, Counsel (Ott-OPS)
Sure. And because it was expected to be peaceful, you wouldn't stop them form coming; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And, Commissioner Carrique, in a statement I believe you issued to all OPP members in which you were putting them on notice of operational deployment, you refer to the need in Ottawa for unprecedented resource deployments, and you described Ottawa as an ever- evolving major event. And I take it you would agree with that characterization?
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David Migicovsky, Counsel (Ott-OPS)
In -- can I ask that we turn up, please, OPP00001550? And so if we can just scroll down, please, to page 2 of 4? And if we can continue to scroll down, please? Thank you. Or just go up a bit. Just a little bit further up. Thanks very much. And so what we -- sorry, if we just want to go a little bit higher? I apologize. Chief Sloly asked certain questions. This was with respect to one of the weekends that was coming up in Ottawa. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And so one of the questions that was being asked of Deputy -- of the Deputy Commissioner was there were five questions; correct? And question two was "What will be the exact number of trucks on Saturday?" And three was "the number of protesters in each location currently". Do you recall those questions being asked?
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David Migicovsky, Counsel (Ott-OPS)
And so if we could then just scroll down a little bit to where it says row two, thank you. And so what we see in row two, in terms of the number of trucks to arrive on Saturday, this just cannot be known; correct?
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David Migicovsky, Counsel (Ott-OPS)
Because it's impossible to have that kind of advance information.
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David Migicovsky, Counsel (Ott-OPS)
And with respect to number four, the question about the number of people that Chief Sloly was asking about, the answer is, "The number of people to attend any of these locations tomorrow is not the subject of "confirmed intelligence". It[']s a matter of inductive logic and extrapolation based upon precedent and social media organization - and also weather conditions and actions taken elsewhere." Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
And we see if we scroll up to that email, go up, please? You will -- continue, please. You'll see that was then forwarded to you from Deputy Cox, and he's asking you here's how we -- like, seeking your guidance on how we send this to Chief Sloly; correct?
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David Migicovsky, Counsel (Ott-OPS)
And then if we just go up to the very top of the email, you'll see you're in agreement as indicated, please, and then if you keep going. Yeah, and so you'll see -- sorry, at the bottom, he's asking you if you want to send that along, and you indicate at the top to go ahead and send it; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so it's a matter of logic and extrapolation based upon precedent and social media and weather predicting that information; correct?
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David Migicovsky, Counsel (Ott-OPS)
And prior to this demonstration, Ottawa had considerable experience with demonstrations and special events.
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David Migicovsky, Counsel (Ott-OPS)
And obviously had a lot of precedent to draw upon?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that this demonstration was unprecedented?
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David Migicovsky, Counsel (Ott-OPS)
And so in future, Ottawa would be able to rely upon this demonstration as a precedent for what it does in the future; correct?
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David Migicovsky, Counsel (Ott-OPS)
Thanks. You can take that down, please. I understand that things were -- there was a lot going on on the ground in Ottawa, and we've heard that there was a -- an incident where I think there were 18 OPP officers and there was a concern that they had been there and some of them had not been deployed. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
And so there is an OPS situational report, and I don't need to take you to it, but that talks about a situation on February 14th where OPP officers by mistake let vehicles into the red zone, but fortunately they were caught and turned back by the RCMP and the OPS. And those kinds of mistakes can sometimes happen in chaotic situations, like was happening in Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
Okay. I understand that Toronto dealt with a convoy that was expected on, I believe, two weekends in February; correct? The 5th and the weekend of the 12th?
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David Migicovsky, Counsel (Ott-OPS)
Right. And when we looked at some notes, I saw that Chief -- is it Chief Ramer?
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David Migicovsky, Counsel (Ott-OPS)
Ramer.
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David Migicovsky, Counsel (Ott-OPS)
And he referred to the first weekend, and I'll just turn up the document. It's OPP00001132. And it's on page 9. Oh, I'm sorry, I've given you the -- I'm sorry. It's... Sorry, I've lost the reference. But maybe you can... Eleven-thirty-two was actually time in the notes, but ---
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David Migicovsky, Counsel (Ott-OPS)
--- in any event, Chief Ramer referred to the first weekend, and what he said was, and I quote: "Using Ottawa, they locked down the city. Had Ottawa not happened, TPS, Toronto Police Service, tactics would not have been accepted." (As read) Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And I understand that the OPP, with respect to at least the second weekend, I'm not certain about the first weekend in Toronto, provided some assistance in locking down Toronto and preventing the vehicles from coming to the Queen's Park area. Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And in that case, I believe in Toronto, the vehicles for the most part were not large trucks; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so we've heard that you assisted Toronto in taking some pre-emptive steps to prevent the Ottawa situation; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so we also heard that in Ottawa, before the convoy arrived, that the OPP assisted in getting the vehicles safely into the city; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And we heard that on the weekend of February 5th, when Chief Sloly talked about closing all 417 exits because there were more convoys coming, he was told that the OPP would not permanently close all exits unless there was an immediate public safety risk, which there wasn't; correct?
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David Migicovsky, Counsel (Ott-OPS)
You indicated that you had some -- you were going to have an uncomfortable discussion on February 15th with Chief Sloly; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. But you obviously had concerns at that point, and I'll just -- if I just may ask you a couple of questions just to finish this up. You had some concerns about the state of the Operational Plan and what was going on at OPS at the time; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so if I may just refer you to the last document, which is OPS00004578. If you can keep going. Sorry, I'm not going to -- I'll try to do this faster.
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David Migicovsky, Counsel (Ott-OPS)
Would you agree with me that what -- Chief Bell took over, then, on -- immediately after Chief Sloly resigned?
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
And I believe two days later you didn't need to have that conversation with him?
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David Migicovsky, Counsel (Ott-OPS)
No, the conversation you were going to have with Chief Sloly you didn't need to have with Interim Chief Bell?
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
Sure. And just to finish it off. What you said to him a couple of days later was it was an outstanding job and you thanked him, and a couple of days later you told him he knocked the ball out of the park, and things seemed to be going very well. Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you very much ---
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David Migicovsky, Counsel (Ott-OPS)
--- Commissioner.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, Commissioner. Good morning, Mr. Sloly. As you know, my name is David Migicovsky, and I appear for the Ottawa Police Service. How are you?
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David Migicovsky, Counsel (Ott-OPS)
I wonder, Mr. Clerk, if we could call up OPS14454, page 176. I want to start by asking you some questions about the Hendon reports. So I'll just wait for the... And it's page 176. Thank you. Just to situate you for where we are in time, it's February 12th. And then if we could just turn to the next page. Thank you. And so you'll see, Mr. Sloly, that on February 12th, you've just gotten off of a call of the Big 12 Services. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And on page 177, you'll see... If you'll just stay at the top, please. ...you raised a concern with the OPP that OPS was being compared to Toronto, and the suggestion that OPS wasn't prepared, and you wanted to address that situation. And Commissioner Carrique asked that you go offline to have that discussion in a professional manner. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And so you raised concerns about the Toronto situation, and you also want to discuss the assertion that OPS was not prepared. And I want to read a passage just below, Mr. Sloly, and ask you to confirm whether that's accurate. And so if you can just scroll up a bit, please. Thank you. "Chief - can't continue to compare Ottawa to Toronto. Also, we had a blind spot. Ottawa was not soft [or something] sold on civil disobedience." I'm not sure what that word is. Commissioner Carrique says: "Don't disagree with you." And then says: "Never any suggestion that the Toronto situation is like Ottawa, this situation was not caused by OPP." If we could keep scrolling, please? The second bullet, you indicate to Commissioner Carrique, "It sounds like Ottawa got caught off guard. We need a collective understanding of what we did good and bad. Want the message to be we didn't have the intel and couldn't prepare and have a message going forward." And then underneath that, Superintendent Morris says, "Hendon report not perfect. This type of activity is novel. April 2020 - saw messaging re vaccination talk against..." We could continue, please, to the next page. Again, "Jan[uary] 20/22 - first heard on the specific event..." So this is Superintendent Morris speaking, "Discussed it on Jan[uary] 21/22 and sent out via Hendon. - worked closely with OPS. We underestimated and as we learned more we tried to collect the info[rmation] and work closely with OPS. - Don't know how Ottawa could have been prevented. Toronto was completely different and we learned from Ottawa. - The strategic intelligence would not have provided a key to prevention. Chief..." And this is you, "...[asks] Pat, Tom, Chuck that's what needs to be told more broadly and to the politicians - that intelligence update needs to be..."
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David Migicovsky, Counsel (Ott-OPS)
..."done - judging the various police services against each other - people are second guessing me - I can't point fingers [a]t RCMP [and] OPP. I need someone that is credible/objective to speak out not someone fighting for their job" And you'll see Commissioner Carrique says, "- fair comment[...] - we do provide Hendon to [government]. Can ask Pat..." Which I assume is Pat Morris. "...to include a summary to include in the next Hendon. We can make sure it's clearly articulated in the Hendon Report[s]." And does that, in fact, reflect the conversation that you had with Superintendent Morris and Commissioner Carrique?
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David Migicovsky, Counsel (Ott-OPS)
Thank you. And although your witness statement did not say so, I understand that, in fact, you only reviewed the Hendon reports some time after February 10th, 2022; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I am going to suggest to you that it was only after you reviewed the Hendon reports sometime after February 10th that you formed the conclusion that you just reached?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I'm also going to suggest to you that none of the Hendon reports were ever forwarded by you to either Deputy Chief Bell or Deputy Chief Ferguson.
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David Migicovsky, Counsel (Ott-OPS)
Right. I understand you couldn't find any record of that. And you read over the witness statement of Deputy Chief Bell?
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David Migicovsky, Counsel (Ott-OPS)
Or Acting Chief Bell. And you're aware from his testimony and his witness statement that he learned of the Hendon report sometime in the week of January 24th through discussion with Superintendent Patterson, who was the Superintendent in Intelligence, and then began to receive the reports on January 27th. You understand that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you understand from Deputy Chief Ferguson that she only started to get those reports in the week of February 4th?
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David Migicovsky, Counsel (Ott-OPS)
And you have no evidence to the contrary; correct?
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David Migicovsky, Counsel (Ott-OPS)
And Deputy Chief Bell noted in his witness statement and in his testimony that you began to receive the Hendon reports on January 13 and that you personally received ---
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David Migicovsky, Counsel (Ott-OPS)
Yes, do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
Right. And I -- Kevin Maloney is your executive officer, or was your executive officer; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And you worked very closely with him?
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David Migicovsky, Counsel (Ott-OPS)
Mr. Clerk, if we could please turn up OPS00009554? And if we could just scroll down to the bottom of the page? You'll see -- is it Inspector or Superintendent Maloney?
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David Migicovsky, Counsel (Ott-OPS)
Inspector. Inspector Maloney sends an email to Jamie Dunlop, to Superintendent Dunlop, and he says, "Hi Jamie, There is apparently an Operation HENDON being run by OPP or RCMP. This is an intelligence-based operation that has apparently been producing daily briefings since the end of January. A couple of questions from the Chief: Are you aware of this operation? Do we have an OPS representative? Is it integrated into our ICS model? Do we have copies of all briefing notes, especially from 5 and 9 Feb[ruary]? The Chief would like a copy of all briefing notes {past and going forward} sent to him and Christiane Huneault." And so he made inquiries on your behalf about what the Hendon reports were?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So he sent this on his own?
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David Migicovsky, Counsel (Ott-OPS)
So he says a couple of questions from the Chief. You were the Chief at the time, so I assumed he was talking on your behalf.
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Okay. Can we scroll up to the top, please? Thank you. And so Superintendent Dunlop replies, "Hi Kevin: Hope you are getting some rest. I am aware of project Hendon. It[']s a Provincial project of summary of intelligence across the province and national partners in regard[...] to the Convoy. I have not received any updates in the few days I've been assigned Intelligence as it related to this occupation but will make sure to forward every one to the Chief and through this email will ensure Insp[ector] Bryden sends directly from source and not through the [chain of command] that may delay sharing. I personally have not received most of them. I started to receive them in November from Robert Drummond and I note the Chief is on the mailing list. I have a gap through the month of December and January as I[']m not directly in intel but started to receive a few from Mark in Feb[ruary]. I[']ll forward those now. I asked Ken Bryden to have all reports forwarded to you dating from the first on." And you are, in fact, copied on that email; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so we heard from the OPP witnesses and specifically Superintendent Morris that he found it very odd that they were getting requests from your office for copies of the Hendon report when they had gone directly to you from January 13th onward. You heard that testimony?
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David Migicovsky, Counsel (Ott-OPS)
But you had them. They all went -- were sent to you. They were addressed to Sloly.
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David Migicovsky, Counsel (Ott-OPS)
I'm not understanding how you needed an archive when every single one was addressed to you and in your inbox.
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David Migicovsky, Counsel (Ott-OPS)
So your evidence is that you did receive them, and you did read them at the time?
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David Migicovsky, Counsel (Ott-OPS)
And if I suggested to you that, not only did you have them, they were unopened in your inbox, what would your response be to that?
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David Migicovsky, Counsel (Ott-OPS)
And so when your Executive Officer, Inspector Maloney, sent that request to the OPP, he did so without your authority?
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David Migicovsky, Counsel (Ott-OPS)
I’m going to suggest to you, Mr. Sloly, that once you received that email, this one here, you at some point decided that you could blame Deputy Chief Bell at the time for not planning for this event.
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David Migicovsky, Counsel (Ott-OPS)
Okay. If we could please turn up OPS00009565? If we could scroll to the bottom, you’ll see then there’s an at -- if you could scroll all the way to the bottom, please? Just go up; I’m sorry. Okay. So you’ll see above that email, the next email in the chain, which we just saw, and then if we can go above that, you’ll then see Supt. Patterson, and you’re copied on that, says: “Thanks Jamie. Further to that. All of the Hendon reports were submitted to DC Bell for the Intelligence Briefings that were provided on a daily basis. OPS Members in attendance have been myself, (prior to the MIC role), Inspector Bryden and SIC [sic] Members Yes, it is integrated into our model The briefing notes from [February 5] to [9] were supplied by DC Bell” And then we see above that, so now you believe that Deputy Chief Bell, at the time, had received the Hendon reports, and then you indicate on February 10th to your general counsel: “Fyi and for your records - this could become very important in [any -- I assume that’s a typo] post event inquiries/inquests [Peter Sloly]” Right?
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David Migicovsky, Counsel (Ott-OPS)
And so even though the OPP found it odd that you -- your office was specifically making inquiries about what these Hendon reports were, and even though Deputy Chief Bell’s evidence, which was not contradicted, was that he only began to receive them at the end of January, you’re now saying this could become important. And could it become important, Mr. Sloly, because it will indicate that you received the Hendon reports, or that Deputy Chief Bell received the Hendon reports?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so you don’t have any response, I take it, to Supt. Morris, who was really quite puzzled by why you were asking for Hendon reports?
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David Migicovsky, Counsel (Ott-OPS)
I want to talk about Deputy Chief Ferguson and Deputy Chief Bell at the time. And you’ve testified on Friday that there was a period of time when you lost confidence in your two Deputies.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so, you lost trust, and that must have been very ---
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David Migicovsky, Counsel (Ott-OPS)
And that must have been very hard for you?
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David Migicovsky, Counsel (Ott-OPS)
And you decided that because you couldn’t trust them, you needed to do certain things yourself?
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David Migicovsky, Counsel (Ott-OPS)
And you also didn’t trust Supt. Dunlop as the Event Commander that they had chosen?
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David Migicovsky, Counsel (Ott-OPS)
And so, several of your most senior officers you had trust issues with?
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David Migicovsky, Counsel (Ott-OPS)
And Supt. Rheaume, you told us, had been replaced as Event Commander by Supt. Dunlop. And you indicated you were very angry about that, and you spoke to Deputy Chief Bell ---
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David Migicovsky, Counsel (Ott-OPS)
Okay. You were not pleased with that decision?
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David Migicovsky, Counsel (Ott-OPS)
And you spoke to Deputy Chiefs Bell and Ferguson about it?
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David Migicovsky, Counsel (Ott-OPS)
And then you consulted with them about who should replace Supt. Dunlop because you said you didn’t want him in the position?
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David Migicovsky, Counsel (Ott-OPS)
But you did not suggest putting Supt. Rheaume back in as the Event Commander?
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David Migicovsky, Counsel (Ott-OPS)
So, there’s another one of your Superintendents that you may have had some trust issues with as well?
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David Migicovsky, Counsel (Ott-OPS)
I’m doing the best I can. If I have misstated a word, please correct me, it was not intentional.
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David Migicovsky, Counsel (Ott-OPS)
I will, and I’m not doing it intentionally but there’s a lot of information and if I’ve gotten something wrong, and I haven’t picked up on it, please do correct me.
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David Migicovsky, Counsel (Ott-OPS)
You’ve also, I believe, told us about not wanting to give too much information to the Board because you didn’t entirely trust them to keep things confidential?
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David Migicovsky, Counsel (Ott-OPS)
That’s not what you said?
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David Migicovsky, Counsel (Ott-OPS)
Okay. You had concerns about sharing certain information because of confidentiality?
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David Migicovsky, Counsel (Ott-OPS)
And we’ve also heard evidence about your perception that there wasn’t political support to get the resources to you, and that they wanted to see you fail.
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David Migicovsky, Counsel (Ott-OPS)
And Supt. Pardy, you’ll recall from the OPP testified that you told him there were people in the Ministry who wanted you to fail and that you had sources telling you that?
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David Migicovsky, Counsel (Ott-OPS)
Supt. Pardy from the OPP testified that there were people -- that you said at a meeting he was at, that there were people in the Ministry who wanted you to fail and that you had sources telling you that?
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David Migicovsky, Counsel (Ott-OPS)
And you expressed that to Supt. Pardy; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so I take it from that that there were also people you could not trust in the Ministry?
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David Migicovsky, Counsel (Ott-OPS)
Let’s talk about the change in Incident Commander from Supt. Rheaume to Supt. Dunlop. And I want to begin by talking about your comments about Supt. Dunlop. What I understood you to say on Friday, and perhaps I’ve written it down incorrectly, was you did not want him in the position because he had been the Incident Commander in the Panda Game?
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David Migicovsky, Counsel (Ott-OPS)
My understanding was that you referred to him as the Incident Commander or the Event Commander and so I’ve got that wrong. That wasn’t ---
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David Migicovsky, Counsel (Ott-OPS)
My understanding was that the Incident commander of that was Insp. Michel Marin and there was no Event Commander for that.
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David Migicovsky, Counsel (Ott-OPS)
And in terms of Supt. Dunlop’s experience, I understand that he had been the logistics and staffing lead in 2016 for the North American Leaders Summit and he was part of a joint planning and communications group with the RCMP. He was also the lead planner in the past for the presidential visit, and was extremely well qualified for the position, but that you had some personal issues with him?
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David Migicovsky, Counsel (Ott-OPS)
And so you’re not just ---
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David Migicovsky, Counsel (Ott-OPS)
--- disputing that he may have been ---
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David Migicovsky, Counsel (Ott-OPS)
Sorry.
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David Migicovsky, Counsel (Ott-OPS)
You’re not disputing that he was extremely well qualified for that position of event coordinator?
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David Migicovsky, Counsel (Ott-OPS)
I’m talking about for the -- sorry if my question wasn’t clear. Event Commander for the protest.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And you indicated that the Event Commander was changed, you said, on February 1st, 2022. That was your evidence on Friday?
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David Migicovsky, Counsel (Ott-OPS)
Okay. On Friday, you said it was the 1st.
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David Migicovsky, Counsel (Ott-OPS)
And you understand that Deputy Chief Ferguson testified that Supt. Rheaume was the Event Commander until February 4th in the evening? And that was her evidence in her witness statement and it was also her evidence in the transcript.
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David Migicovsky, Counsel (Ott-OPS)
Until February 4th in the evening. That was her evidence.
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David Migicovsky, Counsel (Ott-OPS)
And no one challenged that evidence when she gave it. you heard that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And on the Institutional Report that Ottawa Police filed and that came in through her evidence, that Institutional Report had a chronology of dates and said that Supt. Rheaume was the Event Commander up until February 4th, and nobody challenged that either; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you’re aware that Deputy Chief Ferguson testified that Supt. Rheaume had asked for some time off on the weekend, which was the weekend of February 5th, and that’s why she said he had been replaced by Supt. Dunlop?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So you indicated on Friday that you did not believe that statement when she said that he had asked for time off that weekend and that’s why he had been replaced?
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David Migicovsky, Counsel (Ott-OPS)
Can I ask, please, Mr. Clerk, to turn up OPS00014454, page 142? At the top of the page, you’ll see: “Chris Rheaume was the Commander. Chris Rheaume…”
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David Migicovsky, Counsel (Ott-OPS)
These are the same notes that we looked at before, Ms. Huneault’s notes.
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David Migicovsky, Counsel (Ott-OPS)
February 10th. “Chris Rheaume was the Commander. Chris Rheaume - he need time off Decision to ask Jamie be there on Frid[ay]” Friday would be February 4th. “On Sat[urday] [Supt.] Rheaume asked if Jamie [that would be Jamie Dunlop] should just stay in there Decision to just keep” Thank you.
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David Migicovsky, Counsel (Ott-OPS)
And if that is correct, then what that would mean ---
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David Migicovsky, Counsel (Ott-OPS)
If that was correct, ---
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David Migicovsky, Counsel (Ott-OPS)
If I could ask my question, please? If it was correct, that would mean that on February 4th in the evening, Supt. Rheaume was asked for time off and was given it, and Supt. Dunlop became the Event Commander on the 5th.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And what also doesn’t make sense, if we could please turn up OPS00014484, page 10? So this is your typed notes. I don’t know when you typed those notes. But you’ll see “I advised…” this is on the February 5th in the morning. It’s 9:00 o’clock. It says: “I advised that I had only just official[ly] heard that Supt Dunlop had replaced Insp Lucas as the Incident Commander at the previous briefing. DC Bell advised […] he was the new Incident Commander installed this week…” That can’t be accurate, Mr. Sloly, I suggest, because the Incident Commander from the beginning of this event to the end was Insp. Lucas throughout; correct?
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David Migicovsky, Counsel (Ott-OPS)
But ---
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
These are not notes that you prepared at the time of the ---
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David Migicovsky, Counsel (Ott-OPS)
And I suggest to you that you’ve got it wrong there, because what you were told on February 5th in the morning was that Superintendent Rheaume had asked for some time off ---
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David Migicovsky, Counsel (Ott-OPS)
Just -- you have to let me finish, Mr. Sloly. And had been replaced by Superintendent Dunlop. And in your notes you've written that's it's Inspector Lucas who was replaced by Superintendent Dunlop as the Incident Commander.
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David Migicovsky, Counsel (Ott-OPS)
Thank you for your statement. You're inaccurate. That's not true.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And -- so we are in agreement, however, that Inspector Lucas was never replaced.
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
And you're asking us to accept that for the period of February 1st to February 5th you were under a misapprehension of who the Event Commander was?
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David Migicovsky, Counsel (Ott-OPS)
If in fact the change was made on February 4th in the evening, as we've heard from the evidence, that would mean you were uninformed from the evening of the 4th until the morning of the 5th; correct?
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David Migicovsky, Counsel (Ott-OPS)
This is quite proper cross-examination. If my friend wants to raise that in re-examination, he can. Superintendent Rheaume was not called as a witness. Two different notebooks from him were put in. We knew nothing about that. So my friend can certainly pursue that in re-examination, but I submit this is proper cross- examination.
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David Migicovsky, Counsel (Ott-OPS)
I'm concerned about my time.
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David Migicovsky, Counsel (Ott-OPS)
Sure. I understand that, you know, that's the narrative. I'm challenging that narrative, and my friend is certainly open to explore it. But I'm going to move on from that point. You would agree with me that as the Major Incident Commander, Deputy Chief Ferguson operates at a strategic level?
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David Migicovsky, Counsel (Ott-OPS)
And below her would be Inspector Lucas at the Operational level?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry, the Event Commander, and below the Event Commander would be Inspector Lucas as the Operational -- at the Operational level?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And strategy at the Major Incident Commander would be at a very high-level; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I don't see anywhere in the record any instructions that prohibited the Major Incident Commander from choosing who should be the Event Commander who reports to her.
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David Migicovsky, Counsel (Ott-OPS)
And it's her decision, is it not?
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David Migicovsky, Counsel (Ott-OPS)
And when you raised it with her on the 5th, you in fact told her that it was her decision to either keep Superintendent Dunlop in that role if she wanted to?
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David Migicovsky, Counsel (Ott-OPS)
So obviously she had that right to make a decision as to who she wanted as the Event Commander?
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David Migicovsky, Counsel (Ott-OPS)
But you also warned her that she'd be accountable for the decision to put Superintendent Dunlop into that position.
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that's somewhat of a threat that if things go wrong you'll be blamed.
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David Migicovsky, Counsel (Ott-OPS)
And that was on February 5th. And at February 5th, just in terms of what was going on on the ground, things were not going well in the City of Ottawa. Fair?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you were facing, really, unrelenting criticism in the media and on social media because people didn't understand what the Ottawa Police were doing.
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David Migicovsky, Counsel (Ott-OPS)
And that was very intense pressure on you, was it not?
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David Migicovsky, Counsel (Ott-OPS)
And what Deputy Chief Ferguson confirmed with you was that in deciding who to replace Superintendent Rheaume with she had consulted with her colleague, who was Deputy Chief, and was experienced in the Deputy Chief role, and you were suspicious of Deputy Chief Bell for having had a conversation with Deputy Chief Ferguson about his thoughts on the skillset required to be the Event Command.
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David Migicovsky, Counsel (Ott-OPS)
Sorry. Sorry if my question had multiple parts, I'll try to break it up. Deputy Chief -- you indicated that you were -- you did not support the decision she had made to choose Superintendent Dunlop; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you also -- she told you, as did Deputy Chief Bell, that he had consulted with her and suggested Superintendent Dunlop, and you weren't happy about Deputy Chief Bell giving his opinion to Deputy Chief Ferguson.
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David Migicovsky, Counsel (Ott-OPS)
And she doesn't have the ability to consult with her colleague, who's been in the Deputy Chief role, to say, "Hey, what do you know about ---
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David Migicovsky, Counsel (Ott-OPS)
--- Superintendent Dunlop's skillset?"
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David Migicovsky, Counsel (Ott-OPS)
And I suggest that on February 9th, so a couple of days later now, you were pretty concerned that you would lose your job and be blamed for what had happened.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And what you were looking for was to blame somebody else.
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David Migicovsky, Counsel (Ott-OPS)
Okay. If we could please turn up OPS14454, page 131. And if we could scroll down, please. There's a meeting at 9:30 to 9:50, meeting with Chief, Christiane Huneault and Inspector Maloney, your Executive Officer. Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And if we could scroll down. And so you'll see at the bottom of the page... Or, sorry, just go up -- yeah. If we could just go up to the top, please. "Chief"... Thank you. "Double sided Incident Command? Still don't have it. Chief outlines concerns over last week in the event he is shipped out."
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David Migicovsky, Counsel (Ott-OPS)
"Double sided Incident Command? Still don't have it. Chief outlines concerns over last week in the event he is shipped out." That indicates a concern you expressed again about this incident of Superintendent Dunlop.
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David Migicovsky, Counsel (Ott-OPS)
In the event ---
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David Migicovsky, Counsel (Ott-OPS)
And by February 14th, I would suggest things were looking very bad for you in terms of media coverage and what was happening with the OPP and the RCMP.
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David Migicovsky, Counsel (Ott-OPS)
We have.
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David Migicovsky, Counsel (Ott-OPS)
By February 14th now, less than a week later, things were looking even worse for you in terms of what the media was reporting and what was happening with OPP and the RCMP. You were under immense pressure.
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David Migicovsky, Counsel (Ott-OPS)
If we could please call up OPS00014479, page 97. And if we could just go to the bottom of that page, please. So these are Deputy Chief Ferguson’s notes: “Advised Chief is looking for emails to support I/we purposely left him out of the information loop on the demo coming.” We go up to the next page, and then it ends.
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David Migicovsky, Counsel (Ott-OPS)
I apologize. “Advised Chief is looking for emails to support I/we purposely left him out of the information loop on the demo coming.”
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David Migicovsky, Counsel (Ott-OPS)
Well, she said you were looking for emails to say that people intentionally left you out.
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David Migicovsky, Counsel (Ott-OPS)
And -- thank you. You can take that down for the -- or you can keep it for a moment. I may go back to it. Thank you. You indicated that one of the concerns you had about Superintendent Dunlop taking over as Event Commander, on Friday you said was he wasn’t at the February 1st meeting you had with the POU, so perhaps he wasn’t even up to date on it.
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David Migicovsky, Counsel (Ott-OPS)
And Superintendent Rheaume wasn’t at that February 1st meeting either, was he?
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David Migicovsky, Counsel (Ott-OPS)
And neither was Inspector Lucas at the February 1st meeting.
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David Migicovsky, Counsel (Ott-OPS)
And I understand from Superintendent Dunlop’s note that, in fact, he met with the POU group on the following day, on February 2nd. You have no reason to disagree with that.
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David Migicovsky, Counsel (Ott-OPS)
And I understand on February 3rd, the following day, there was a POU update that Superintendent Dunlop attended with you and the two Deputies at 10:15 that morning at which the three options were presented.
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David Migicovsky, Counsel (Ott-OPS)
Okay. My ---
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David Migicovsky, Counsel (Ott-OPS)
And you recognize the importance of communicating and messaging; correct? That’s an important obligation that you have as a Chief, and it’s important that you communicate appropriately both in the service and externally to the service; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in that regard, you retained a company called Navigator to provide strategic communications and issues management advice related to the Freedom Convoy from January 30th.
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David Migicovsky, Counsel (Ott-OPS)
And so we know they provided services to you, a little bit to Chair Deans as well during that period, from January 30th to February 15th.
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David Migicovsky, Counsel (Ott-OPS)
In fact, they even prepared a report for you on what your reputation was during this.
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David Migicovsky, Counsel (Ott-OPS)
And there was a specific report, actually, about your reputation.
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David Migicovsky, Counsel (Ott-OPS)
If we could please have OPS00008402. You’ll see that is a reputation audit performed of relevant media, social media and political commentary relating to Chief Sloly’s reputation across local media, national media and social media. You reviewed that report, I assume?
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David Migicovsky, Counsel (Ott-OPS)
What you say and how you say things can be very important; correct?
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David Migicovsky, Counsel (Ott-OPS)
And my understanding is OPS spent $185,000 on Navigator providing communication advice for the period of January 30th to February 15th, most of it related to meetings and -- with you; correct?
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David Migicovsky, Counsel (Ott-OPS)
If we could please turn up OPS00014934.
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David Migicovsky, Counsel (Ott-OPS)
In fairness, the question of Navigator was certainly something that was raised throughout. The Commission asked us for the invoice. We actually provided the invoice to the Commission. Yesterday when I was preparing, I discovered that for some reason, it was not on the database, although certainly the Commission had it. And there were many questions asked about Navigator of many of the witnesses, so I don’t see any unfairness in it.
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David Migicovsky, Counsel (Ott-OPS)
Thanks. And so if you’ll just see on the first page, please, if you could scroll down, you’ll see the total bill -- keep scrolling -- was 185, and you’ll see from the invoice that it covers January 30th to February 15th. You heard Deputy Chief Bell say that he stopped using them when he became Acting -- Interim Chief; correct?
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David Migicovsky, Counsel (Ott-OPS)
I want to talk -- so Navigation -- Navigator provides communication advice. Deputy Chief Ferguson has in her notes on page 67. And I can turn it up if you want, but I suspect you may remember this, that during the meeting on February 9th, you said twice that you will crush anyone who undermines the Operation, and she said your chin was twitching when you said it.
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David Migicovsky, Counsel (Ott-OPS)
And Ms. Huneault recorded that in her notes as well. And you would agree with me that when you say "no changes can be made" and you will crush anyone, what your Command Team would understand from that is "you better not disagree with me"?
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David Migicovsky, Counsel (Ott-OPS)
In fact, what the notes say is no changes can be made to the Command Team unless you approve it.
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David Migicovsky, Counsel (Ott-OPS)
Deputy Chief Ferguson's.
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David Migicovsky, Counsel (Ott-OPS)
Well, I ---
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David Migicovsky, Counsel (Ott-OPS)
And Superintendent Abrams testified from the OPP, and you recall that the OPP had an Inspector Dawn Ferguson, who was working with the Ottawa Police?
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David Migicovsky, Counsel (Ott-OPS)
Sure. I'm moving on. I'm asking you something else. We're talking about communication. You recall Superintendent Abrams testified?
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David Migicovsky, Counsel (Ott-OPS)
And you recall that there was reference to an Inspector Dawn Ferguson, who was an OPP officer, who was working with the OPS?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And Superintendent Abrams records that at 10 o'clock you went on a rampage, was reported to him by Inspector Ferguson, and were making unrealistic demands of some staff ---
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David Migicovsky, Counsel (Ott-OPS)
And it says that you went on a rampage and were making unrealistic demands of your Command staff and their partner agencies. You don't agree with that?
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David Migicovsky, Counsel (Ott-OPS)
And Deputy Chief Ferguson also records a meeting on February 9th where you got angry and spoke of the conspiracy and told her it was all political. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
She -- do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
I said February 9th.
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David Migicovsky, Counsel (Ott-OPS)
That you spoke of a conspiracy and told her it was all political.
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David Migicovsky, Counsel (Ott-OPS)
If we could please turn up OPS00014479. Oh, I'm sorry, I didn't give you the page. Page 67. The last bullet. Or you can actually go above: "Talked about the plan for briefing the embedded cell of planners and commanders..." And keep scrolling down, please: "...and he spoke of a type of conspiracy that is happening at provincial and federal levels and that this team is being handled by their political masters and promoted the idea that they're not really there to help. I advised that they were asking us not to bring the politics into our operations. He got angry and told me this was all political."
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David Migicovsky, Counsel (Ott-OPS)
Well, she's saying that that's what you said, and you were angry.
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David Migicovsky, Counsel (Ott-OPS)
And on the same page... If we go to the top of the page, please. ...it said that morning you called them all into the: "...office after the morning briefing. Present were the Chief, Deputy Chief Bell, CAO [Dunker is it?]; Kevin Maloney, and Christiane Huneault and myself. [And] the Chief began by saying he floundered last week and because we..."
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David Migicovsky, Counsel (Ott-OPS)
"...we floundered last week..." I read that as an "H", but ---
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David Migicovsky, Counsel (Ott-OPS)
--- because there's a "W" underneath it, but perhaps I've misread it: "...and because we switched riders partway through - indicating the switch between Rheaume and Dunlop to Patterson. The Chief and the team will not change any of the players until the operation is over." And so again you raise this issue about the switch in Event Commanders. You now are not referring to Inspector Lucas anymore, you've sorted that out.
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David Migicovsky, Counsel (Ott-OPS)
And the people that you accused were Deputy Chief Ferguson ---
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David Migicovsky, Counsel (Ott-OPS)
Okay. You spoke about what had happened the previous week in which Deputy Chief Ferguson, in consultation with Deputy Chief Bell, had replaced the Event Commander, and you had that discussion in front of their colleagues.
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David Migicovsky, Counsel (Ott-OPS)
And on the same day, you have a presentation to the OPP, and Deputy Chief Ferguson said that you were hostile when they asked questions.
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David Migicovsky, Counsel (Ott-OPS)
The notes are in the record. That's fine. Superintendent Abrams was also at that meeting, and his notes say, and I'm happy to turn them up if you want, that you became very stern with him ---
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David Migicovsky, Counsel (Ott-OPS)
--- and he says that you became ---
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David Migicovsky, Counsel (Ott-OPS)
Well, I'm trying to save time, but I will turn ---
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David Migicovsky, Counsel (Ott-OPS)
I appreciate it. Given the time constraints I'm trying to do it. But I will call it up. It is OPP00000774. And unfortunately, or fortunately for everyone, I have not noted the -- I've noted what line it is, but I haven't noted the page in my notes. So I won't take you to that, I apologise. What he indicates, and you can tell me if you agree or disagree or you don't remember, is that you became stern with him during that meeting and you became heated again.
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
And Superintendent Pardy records the meeting in his Will Say Statement as "the overall tone of the meeting was somewhat unprofessional and disrespectful." You've heard that evidence.
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David Migicovsky, Counsel (Ott-OPS)
And you obviously don’t agree with that either?
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David Migicovsky, Counsel (Ott-OPS)
And the following day, February 10th, there was an issue that arose about the Rideau/Sussex operation that was supposed to have been the subject of a POU operation the previous night? Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And that had ultimately been called off because Supt. Burnett was of the view that it was too dangerous?
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David Migicovsky, Counsel (Ott-OPS)
And if we could please turn up OPS00014479, page 74? And if we could go down to the bottom of the page, last paragraph? There’s a -- let me read to you -- if we could go up a little bit? Okay. “I advised…” this is Deputy Chief Ferguson: “…I fundamentally did not agree with the approach.” The concern was about the use of PLTs; correct?
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David Migicovsky, Counsel (Ott-OPS)
I’ll continue reading. “That they were not allowed negotiations to take place. They did[n’t] give them the opportunity to negotiate fairly. I told them that our policing partners have huge concerns with the way things are running [and] I don’t believe we are listening to them.” If we can scroll down, please? “I advised the OPP are horrified with the Rideau/Sussex plan and that both Dave Springer’s information was incorporated into Paul [Paul being Paul Burnett’s] decision. Chief asked who we should have in to be POU incident commander and I asked for Dave Springer. at that [point] Matt Patterson said ‘Dave Spring - an inspector’ came in to my office this morning and told me what I should be doing - that he wasn’t actually there. The Chief responded by saying if he did that, he would cut off Dave Springer’s nuts and call his boss…” And it goes on. and I don’t recall if you remember the rest of the statement you made?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So you don’t recall it or it didn’t happen?
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David Migicovsky, Counsel (Ott-OPS)
And you don’t recall saying that you’ll cut off Dave Springer’s nuts and use them as bookends?
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David Migicovsky, Counsel (Ott-OPS)
I want to move on. And you would agree with me though, I think you said communication is very important?
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David Migicovsky, Counsel (Ott-OPS)
I want to talk about the PLTs. Insp. Lucas was the Incident Commander and expressed the view that PLTs should be a negotiating team and de-escalating as many issues as possible and that POU as a tactical resolution should be the last step?
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
That is your memory of his position?
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David Migicovsky, Counsel (Ott-OPS)
And he explained in his witness statement that it was made clear to him after the first weekend that you interfered with his efforts to use the PLT to shrink the footprint of the protestors and that both he and Supt. Rheaume, the Event Commander at the time, supported efforts to remove the protestors from the Rideau/Sussex intersection and that it was made clear to him that Supt. Rheaume lacked the authority to do this and the Chief’s approval was needed? Do you remember that evidence?
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David Migicovsky, Counsel (Ott-OPS)
And Supt. -- so you disagree with Supt. Lucas?
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David Migicovsky, Counsel (Ott-OPS)
And you disagreed -- because Supt. Abrams was also very clear in his evidence on that point, so you disagree with that?
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David Migicovsky, Counsel (Ott-OPS)
And Deputy Chief Ferguson also noted fundamental disagreements with you on the role of PLTs?
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David Migicovsky, Counsel (Ott-OPS)
If we could turn to OPS00005631, please? That’s the February 1st POU meeting that you attended. If you could just scroll down a bit, please? You’ll see the discussion point is: “PLT would like one more attempt to speak with every convoy to get them on the same page. Truckers need to clear all the roads and stop honking in exchange for fuel and a place to park. Have zero room to negotiate. If they don’t deal with it […] this way, they will be removed.” That was the position you were espousing?
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David Migicovsky, Counsel (Ott-OPS)
Okay. The opportunity to shrink the footprint by not getting the group at Rideau/Sussex to move came up yet again on February 9th. And if we could please go to OPS00009573 at page 2? At the bottom, you will see that there is -- the bottom of the email chain, Supt. Burnett is emailing Supt. Patterson and he says at the end, he’s talking about a possible move of the Rideau/Sussex and he says, “Look, although it may not be the desired outcome, it can assist in bringing an overall resolution to the incident.”
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David Migicovsky, Counsel (Ott-OPS)
Well so you’ll see the bottom he said, you know, the various options.
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David Migicovsky, Counsel (Ott-OPS)
At the bottom. I’m not -- -
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David Migicovsky, Counsel (Ott-OPS)
--- going to do that because I’m running out of time. So I’ll -- that’s fine. You don’t recall this discussion; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I’m going to suggest to you that that information was forwarded to you as Chief and you said, “We’ll discuss it in the morning.”
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David Migicovsky, Counsel (Ott-OPS)
Okay. I’m going to move on and come back to the subject of Navigator, who was hired to provide you some advice?
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David Migicovsky, Counsel (Ott-OPS)
And if we ---
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David Migicovsky, Counsel (Ott-OPS)
If we could please turn up OPS14454, page 24? That’s a meeting on February 2nd called “Next Steps Meeting OPS and Navigator”. Present were Christiane Huneault, the Chief, John Steinbach, who is a communications person in OPS?
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David Migicovsky, Counsel (Ott-OPS)
Erin Kelly, Matthew Barrier, Jamie Watt, Amanda Galbraith; the last four names are from Navigator; correct?
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David Migicovsky, Counsel (Ott-OPS)
One of them is from ASI?
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David Migicovsky, Counsel (Ott-OPS)
That’s the other company that was doing social media scrolling for you?
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David Migicovsky, Counsel (Ott-OPS)
And none of your command team are present at that meeting; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. He wasn’t involved in the actual operations, though, was he?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so this is February 2nd. You’ve had -- just to situate you in time, you’ve had a meeting with the PLU the previous day.
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David Migicovsky, Counsel (Ott-OPS)
And you’ll see on page 25, the following page -- keep scrolling, please -- “PS”; that’s Peter Sloly. You ask them the question -- so you’ve just had the POU meeting the previous day: “What do we need to do more? More arrests? Tickets? Use of force? Then what? Go to the politicians? Go into big lockdown mode? Massive show of police presence and then hold hands and come together, or two bigger lockdown of city for weekend?” (As read) And then you’ll see Erin at the bottom. Erin is from Navigator or ASI?
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David Migicovsky, Counsel (Ott-OPS)
“Job is to keep the peace and keep people protected. When you take a hard line, citizens of Ottawa will want this, but not everyone. Need to acknowledge not everyone represents or resonates as fringe group. This is a national problem and Prime Minister needs to get us out of it.” (As read) Jamie; Jamie is also from Navigator?
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David Migicovsky, Counsel (Ott-OPS)
“People want to do our job. When does that begin and end? When is the Chief’s responsibility starts and end?” (As read) And it then goes on and then you’ll see at the bottom, Erin. Erin is also from Navigator?
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David Migicovsky, Counsel (Ott-OPS)
Or ASI?
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David Migicovsky, Counsel (Ott-OPS)
“We need to be honest, but the Chief will lose the trust of people if the messaging exaggerated.” (As read) And she then says: “They need to go out and lay charges but that may not be enough. Two- pronged approach: We’ll lay charges and we’ll do what we can, and secondly, but also recognizes it may not be enough.” (As read) And I believe that it then goes on, Erin says that you needed a communication strategy to show that this is beyond Ottawa. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
Page 27. You’ll see just at the top, “We need a communication” if you scroll up, you’ll see she says: “We need a communication strategy to show this is beyond Ottawa.” (As read) Does that refresh your memory?
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David Migicovsky, Counsel (Ott-OPS)
Does that refresh your memory of that meeting?
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David Migicovsky, Counsel (Ott-OPS)
Page 29 is February 3rd. So that’s the next day. And on page 30, again it’s another meeting with ASI and Navigator.
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David Migicovsky, Counsel (Ott-OPS)
Follow-up again, Erin, Jamie, Matthew, Chief, John, Amanda, and Christiane Huneault; correct?
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David Migicovsky, Counsel (Ott-OPS)
Page 30. Are we at the top of the page, please? (SHORT PAUSE)
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David Migicovsky, Counsel (Ott-OPS)
Erin says at that meeting that -- your line there, “May not be a police solution,” which is what you delivered at the press conference the previous day after a Navigator meeting might have come too soon. And then you’ll see -- I wonder if you could shrink it a bit, just so I can find the reference to Matthew on that page? If you could shrink it a bit, please, so I could see more the page, please? You’ll see Erin: “This might not be a policing solution. Anger against OPS has come down.” (As read) They’re the ones who came up with, “This might not be a policing solution”; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And if we could just -- Matthew, “Plan for today.” Matthew’s from Navigator or ASI?
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David Migicovsky, Counsel (Ott-OPS)
“Plan for today: Show you are doing everything in your power. Need creative solutions. Cut off [something] riot gear police [I can’t read that word] floodlights all night, tickets, stickers for residents, tactics we are trying to do is that it look like we are doing everything possible to resolve this.” (As read) Do you recall that meeting, then?
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David Migicovsky, Counsel (Ott-OPS)
And do you recall -- I’ll just -- there had been a discussion on February 3rd with you about the POU options of hard, medium, and soft tactics; correct?
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David Migicovsky, Counsel (Ott-OPS)
And “Hard” means “Tactical”; “Soft” is “Negotiation,” and “Medium” is somewhere in between; correct?
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David Migicovsky, Counsel (Ott-OPS)
OPS -- if we could please turn up OPS14479, page 32? And just to situate you, this is February 3rd, and you’ll see a discussion: “Chief. Hard medium soft options for each approach.” And then if you go to page 36, scroll down, please. So there was this discussion about Navigator.
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David Migicovsky, Counsel (Ott-OPS)
This is with respect to Navigator.
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David Migicovsky, Counsel (Ott-OPS)
It’s February 3rd.
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David Migicovsky, Counsel (Ott-OPS)
February 3rd. You’ve just had a meeting with Navigator, and you’ve also had a meeting with Deputy Chief Ferguson and others; in fact, you told us you had two.
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David Migicovsky, Counsel (Ott-OPS)
Well, I haven’t asked you the question yet.
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David Migicovsky, Counsel (Ott-OPS)
That’s why I gave you the previous page, was February 3rd meeting. If you just want to go back up to the previous page.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And then on page -- the following page, and we saw -- just keep it there. We saw elsewhere the notes of the meeting of February 3rd with Navigator.
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David Migicovsky, Counsel (Ott-OPS)
I haven’t asked you the question yet.
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David Migicovsky, Counsel (Ott-OPS)
We saw that you went to a meeting with Navigator on February 2nd and February 3rd, and you talked about options. Remember that?
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David Migicovsky, Counsel (Ott-OPS)
Talked about options, ---
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David Migicovsky, Counsel (Ott-OPS)
--- and you talked about, “Hard medium soft.”
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David Migicovsky, Counsel (Ott-OPS)
Okay. And they talked about enforcement tactics and the consequences.
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David Migicovsky, Counsel (Ott-OPS)
Okay. You don’t agree.
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David Migicovsky, Counsel (Ott-OPS)
And if we could please go to OPS144 -- 00014479?
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David Migicovsky, Counsel (Ott-OPS)
Yes, I’m sorry; page 97 now. The seventh line, the first -- that bullet, “In the last” -- this is Deputy Chief Ferguson: “In the last several weeks, there have been daily Navigator prep meetings for command. I have begun to decline them because I believe it has begun to drive our operations and influence the Chief’s decision around things like enforcement...”
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David Migicovsky, Counsel (Ott-OPS)
“... -- which, we know has been putting our officers @ risk for safety reasons.”
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David Migicovsky, Counsel (Ott-OPS)
If you can just go backwards, you’ll see the date. February 14th. So she’s talking about the last several weeks what’s been happening. And you don’t agree with that either.
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David Migicovsky, Counsel (Ott-OPS)
And one of the messages we saw that you were getting from Navigator was the need to emphasize enforcement efforts of the police, to let them know that the police were not letting people break and the law and get away with it.
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David Migicovsky, Counsel (Ott-OPS)
On Friday -- I want to move on to talk about some evidence you gave on Friday. You said that the two Deputy Chiefs were responsible for lost time as a result of the decision to replace Superintendent Rheaume with Superintendent Dunlop.
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David Migicovsky, Counsel (Ott-OPS)
And if there was a problem with how the pre-arrival intelligence was analyzed, you’re suggesting it was the fault of Deputy Chief Bell.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And even if he didn’t get the Hendon Reports and you did.
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David Migicovsky, Counsel (Ott-OPS)
And you told us ---
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David Migicovsky, Counsel (Ott-OPS)
I’ll move on.
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David Migicovsky, Counsel (Ott-OPS)
And the Project Hydra plan was something, actually, that was -- Navigator and ASI came up with; correct?
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David Migicovsky, Counsel (Ott-OPS)
So I should disregard that if that’s what the notes say?
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David Migicovsky, Counsel (Ott-OPS)
And you said that if people on your command team had concerns about your Project Hydra plan, you would have expected them to raise it; correct? Do you recall saying that?
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David Migicovsky, Counsel (Ott-OPS)
That’s what you said on Friday. If anybody on your command team had concerns about your Project Hydra plan, you said you would have expected them to raise it. That was your evidence on Friday.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And even though you had just said you would crush anyone who did not agree.
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David Migicovsky, Counsel (Ott-OPS)
And if you didn’t succeed in resolving the demonstration, it was because the Ministry wanted you to fail and delayed in sending you resources.
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David Migicovsky, Counsel (Ott-OPS)
I’m asking you if you agree with that.
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David Migicovsky, Counsel (Ott-OPS)
Do you agree with that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And if the OPP Superintendent reported that he heard you tell your Commanders to say they want to double the actual number of resources they needed, he misunderstood that.
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David Migicovsky, Counsel (Ott-OPS)
And if David White, the City solicitor, said that the police told him that there wasn’t a public safety concern on January 3rd (sic) after his phone call with you, he’s got that wrong, too.
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David Migicovsky, Counsel (Ott-OPS)
Well, you testified as -- on that on Friday.
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David Migicovsky, Counsel (Ott-OPS)
You said that did not reflect your view and he’s got it wrong.
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David Migicovsky, Counsel (Ott-OPS)
And so if we go to ---
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David Migicovsky, Counsel (Ott-OPS)
If we go to OTT00029695. It’s a meeting (sic) from David White about his call with you. He says, “I just got off a call with Chief Sloly”. This is January 30th. And if you go to page 2, he talks about -- you were taken to this document, I believe, on Friday. And then he concludes by saying: “Frankly, I was left with the impression that the Chief is looking for an opportunity to say that the City denied OPS a tool and they cannot be blamed for any public criticism of the police handling of the protest.”
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David Migicovsky, Counsel (Ott-OPS)
Okay. So you wouldn’t agree with that, either.
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David Migicovsky, Counsel (Ott-OPS)
And many of the OPS officers who testified here said you didn’t properly follow the Incident Command System and insisted on approving every operational or tactical decision. And that’s wrong as well; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Commissioner, if I might have just have a couple of extra minutes, I’m just finishing up.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. February 14th was your last full day as the Chief; correct? The next day, you concluded an agreement with Chair Deans to ---
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David Migicovsky, Counsel (Ott-OPS)
February 15th you concluded an agreement with Chief -- with Chair Deans; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I’m not asking you the amounts of the payment, but you concluded an agreement in which you negotiated a payment from the Board and then resigned; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And in fact, you’d been thinking about resigning for a while.
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David Migicovsky, Counsel (Ott-OPS)
Okay. So if that appears in writing somewhere attributed to you, that’s incorrect.
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David Migicovsky, Counsel (Ott-OPS)
If we could please turn to ---
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David Migicovsky, Counsel (Ott-OPS)
If we could please turn to OPS00014479, page 93. This, you’ll see, is on February 14th, so the day before. And you’ll see that one of the things, if you scroll down, please. Yeah. At 9 o’clock: “Command call - Chief finished with ‘we succeed as a team or [we] go down as one’.” Did you say that?
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
And if we could please, then, go to OPS14566, page 6, these are the scribe notes of Vicky Nelson, who was your scribe. And if we could please go to page 6? This is February 14th. If you could keep going down, please? The last three bullets? Thank you. This is you: “OPS has long standing incident command systems, we can do Canada day very, but when there’s something that’s longer, the incident commanders do[n’t] have the base of level of expertise to draw on; When we get something we don’t expect - we do[n’t] act well. At the onset, we did[n’t] have core group of senior commanders who have the skill sets we needed -- which caused me to go through the different levels of management.” And if you could please go up to the next page? “[The] 3rd area to discuss…” This is your discussion with Chair Deans. “…some persons took the opportunity to use this for their personal agendas which were not aligned to the mission and objectives. I can absolutely prove that significant changes were made to the command team, which was withheld from my knowledge for days, which caused us to miss opportunities - this includes acts by both DC Bell and A/DC Ferguson Do I have […] evidence to provide it was deliberate misconduct? No, I do[n’t] have that evidence at this time but it[‘s] all formally documented if needed. Cannot and will not […] blame on this entirely on these members but it has affected the outcome” And so although you said you succeed as a team, it’s as a team effort, and if you fail, it’s as a team member. And I guess Deputy -- Chief -- Mr. Sloly, I apologize, you would say that I guess you failed as a leader then?
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David Migicovsky, Counsel (Ott-OPS)
No, please go ahead.
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David Migicovsky, Counsel (Ott-OPS)
And finally, we saw a number of text messages between the police and city officials, between the police and other police services, we’ve seen text messages from the OPP Commissioner Carrique with you. Those were provided by the OPP. You did not provide any text messages; correct?
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David Migicovsky, Counsel (Ott-OPS)
On May 26th, 2022, a representative of OPS provided you with a USB stick of record -- of your records from your emails, and at that meeting, you returned your phone to her? Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
Giving her back your OPS phone?
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David Migicovsky, Counsel (Ott-OPS)
Do you remember somebody bringing you a USB key and you -- with all of your emails, ---
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David Migicovsky, Counsel (Ott-OPS)
At the time, you then returned your cell phone?
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David Migicovsky, Counsel (Ott-OPS)
Correct. And all of your texts had been wiped off?
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David Migicovsky, Counsel (Ott-OPS)
And so we don’t have any of the texts that you exchanged, except to the extent they’ve been produced by other parties?
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David Migicovsky, Counsel (Ott-OPS)
And there are no text messages that we had provided?
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David Migicovsky, Counsel (Ott-OPS)
My understanding is they were wiped.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much, Mr. Sloly. I appreciate your answers. Thank you.
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David Migicovsky, Counsel (Ott-OPS)
It's David Migicovsky for the record. I did not object initially but I do understand that the rules of the Commission do not allow counsel for the parties to cross-examine, and my friend has been cross-examining on several occasions. This is a matter of some contention, so I would just ask that his questions be phrased in a non (audio skip).
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David Migicovsky, Counsel (Ott-OPS)
I do have a -- perhaps I had missed but counsel for the witness who was not a party now wants to ask him leading questions? Is that what I'm understanding?
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David Migicovsky, Counsel (Ott-OPS)
So I would oppose it because if he was not given standing then I question why he’s allowed to examine his client. I guess further to that, if he is allowed to examine his client, why would he be allowed to ask him leading questions as opposed to non-leading questions?
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David Migicovsky, Counsel (Ott-OPS)
So with that clarification, I suppose he can ask his questions now but I would suggest that what’s contemplated and what’s fair is that the questions be asked in a non-leading fashion. He obviously doesn't have the right to cross-examine his client.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, Commissioner. Good morning, Mr. Dichter. My name is David Migicovsky and I appear as counsel to the Ottawa Police Service. Am I correct, Mr. Dichter, that when you came to Ottawa, it was not your intention to disrupt the lives of residents?
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David Migicovsky, Counsel (Ott-OPS)
Your beef was with the government?
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David Migicovsky, Counsel (Ott-OPS)
And so there would have been no reason that the police would expect that when you got here, you or other members of the Convoy would engage in harassment, or honking, or engage in anti-social behaviour with the residents?
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David Migicovsky, Counsel (Ott-OPS)
Sorry, perhaps my question wasn’t clear. My question was with respect to the information that was planned by members of the Convoy ---
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David Migicovsky, Counsel (Ott-OPS)
--- before they arrived in Ottawa. They did not plan to do anything illegal, or harass people, or engage in anti-social behaviour? Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So you would agree with me; correct? That wasn’t the intention ---
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David Migicovsky, Counsel (Ott-OPS)
--- when you came? And you indicated, therefore, I guess that you would agree with me that the police would therefore not expect that there would be anti-social behaviour or breaching bylaws or anything like that, base don what was being talked about before the Convoy got here?
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
You would expect that the police would not have anticipated that the protestors would park their vehicles wherever they want, or honk their horns, or harass people wearing masks, or engage in racist or misogynistic behaviour? That wasn’t your plan, so therefore you wouldn’t expect the police to anticipate that; would you?
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David Migicovsky, Counsel (Ott-OPS)
So my question to you again, perhaps I wasn’t clear, ---
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David Migicovsky, Counsel (Ott-OPS)
--- and I’ll break it down, ---
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And so therefore, the police wouldn’t expect that either? They would expect what you were promoting was a peaceful demonstration with love and where people got along; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so you’re aware that the police had Public Order Units on standby in case that was necessary the first weekend; ---
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David Migicovsky, Counsel (Ott-OPS)
--- correct? Right. But you didn’t anticipate it being a problem; fair?
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David Migicovsky, Counsel (Ott-OPS)
And certainly what you were reading on social media before you got here, it wasn’t anticipated that this was going to be a problem? What was anticipated was a peaceful protest?
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David Migicovsky, Counsel (Ott-OPS)
Okay. In spite of what you anticipated, however, subsequently, when you got here, there was honking of horns?
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David Migicovsky, Counsel (Ott-OPS)
And there were residents and businesses who complained about the behaviour engaged in by at least some of the people?
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David Migicovsky, Counsel (Ott-OPS)
Many of the businesses were closed downtown; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so ultimately, there was an injunction issued by a judge about the honking; correct?
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David Migicovsky, Counsel (Ott-OPS)
And then there was a further injunction that the City got?
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David Migicovsky, Counsel (Ott-OPS)
And so at least a couple judges found that conduct had been engaged in that was interfering with the residents and the businesses of Ottawa; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. But you would assume that our justice system works, where there’s evidence and judges make decisions based on that evidence?
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David Migicovsky, Counsel (Ott-OPS)
Treason is a very serious crime; isn’t it?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so one of the things you did is -- if we could please turn up JBA0080? It’s triple fours. That’s something that Mr. Bauder put out. Do you subscribe to the views of Mr. Bauder?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So you can take it off. That’s fine. So I take it then that -- so you don’t subscribe to the views of Mr. Bauder and it sounds to me, from your evidence, that you’ve had some disagreements with some of the other members of the convoy as well, correct?
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David Migicovsky, Counsel (Ott-OPS)
No, no, no. I'm just asking you, you've had conflict with the views of some of the other members of the convoy, of the Freedom Convoy as well, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so things, however, fell apart and there wasn’t cohesion within the group any more?
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David Migicovsky, Counsel (Ott-OPS)
I've listened to the testimony from convoy protestors all week.
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David Migicovsky, Counsel (Ott-OPS)
And it -- and have you as well?
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David Migicovsky, Counsel (Ott-OPS)
And it sounds like there's a lot of disagreements.
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David Migicovsky, Counsel (Ott-OPS)
So it sounds like there was a lot of disagreement among your views, Tamara Lich's views.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so as I understand it, you were of the view that Keith Wilson wasn’t honest when he told you that there was no deal?
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David Migicovsky, Counsel (Ott-OPS)
Keith Wilson?
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David Migicovsky, Counsel (Ott-OPS)
He wasn’t honest when he told you there was no deal?
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David Migicovsky, Counsel (Ott-OPS)
Right. And he was the lawyer representing some of the group, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. So there was some disagreement there, and then I believe Ms. Lich didn’t tell you about the negotiations with the mayor, correct?
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David Migicovsky, Counsel (Ott-OPS)
So there was some withholding of information there?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. And so when you got the letter that she wrote, that Freedom Manifest, you didn’t interpret that as telling truckers to leave, right?
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David Migicovsky, Counsel (Ott-OPS)
Just a -- I just want to have you identify a couple of pictures.
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David Migicovsky, Counsel (Ott-OPS)
I just want to move to two sort of final minor points.
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David Migicovsky, Counsel (Ott-OPS)
And so if I could ask you please, Mr. Clerk, to turn up JBA0000002? And so these are some pictures, I take it, that you took on the day that enforcement action was being taken, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay, but you've seen these pictures, correct?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. So all I -- what I'm saying -- in fact, we can see some indications on the picture of some badges of some officers. Then we can see on the back, on the yellow vest, we can see other officers identified by A12, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. So you could see where the various police were coming from, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Let me move on just to address my final point. You can take that picture off, please. If I could ask you, Mr. Clerk, to put up JBA000028.
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David Migicovsky, Counsel (Ott-OPS)
Well, I guess I have two comments about that. First of all, the witness, I'm only taking him to something he referred to which was the information they got with respect to traffic. But of course, these documents, it was only became apparent that there were documents that Mr. Dichter had posted yesterday. So that database didn’t exist. So unless one is checking the database continuously, that database did not exist. But in any event, I'm only taking him to something that he himself referred to, which was the information they got with respect to parking when they came.
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David Migicovsky, Counsel (Ott-OPS)
Thanks. If you could -- you were referring to some conversations about the police telling you where to stage vehicles, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so that’s an example of something. "Good morning, Jason. I'm still waiting to get the traffic management maps from the City, but do have some info I can relay. I've been told I should have the map by noon today. We have some staging areas set up for trucks and passenger vehicles, but those areas are on roads whose infrastructure cannot accommodate trucks with trailers. We're working on a staging area for trucks with trailers, and I'll pass that along when I get it." Correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you understood that was information the police were giving to the convoy participants as to where they could stage their vehicles, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And just the final one in that one is JBA00000068. And again, so that is giving some of the information for truckers as to where they can and cannot go, correct?
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David Migicovsky, Counsel (Ott-OPS)
So that was the information you're referring to? So they were told to leave space for vehicles, they were told where there would no -- not be convoy access, and you understood, coming into the city -- you came in on what day?
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David Migicovsky, Counsel (Ott-OPS)
Sure. Just to finish that up. What day did you come in?
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David Migicovsky, Counsel (Ott-OPS)
So that would be the Friday?
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David Migicovsky, Counsel (Ott-OPS)
And on Saturday, you saw that a number of entrances to downtown were closed off; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. Thank you for your indulgence.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. My name is David Migicovsky. I’m a lawyer for the Ottawa Police Service, Mr. Bauder.
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David Migicovsky, Counsel (Ott-OPS)
Thank you. You too. I understand that you participated, you said, in an earlier convoy to Ottawa; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And that was the United We Roll?
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David Migicovsky, Counsel (Ott-OPS)
That was in 2019?
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David Migicovsky, Counsel (Ott-OPS)
And I believe in that case you ended up staying in Ottawa for several weeks?
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David Migicovsky, Counsel (Ott-OPS)
In 2019.
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David Migicovsky, Counsel (Ott-OPS)
Three days?
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David Migicovsky, Counsel (Ott-OPS)
And it was peaceful?
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David Migicovsky, Counsel (Ott-OPS)
And were you parked on Wellington?
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David Migicovsky, Counsel (Ott-OPS)
And you maintained contact with the police while you were here?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Sorry ---
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David Migicovsky, Counsel (Ott-OPS)
Appreciate that. But you were here with a number of other vehicles, correct?
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David Migicovsky, Counsel (Ott-OPS)
And you had no issues with the police?
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David Migicovsky, Counsel (Ott-OPS)
No problems?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so there would be no reason for the police to suspect this time that the convoy you participated in would cause problems because it didn’t last time either, correct?
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David Migicovsky, Counsel (Ott-OPS)
I just want to talk about the parking situation. You talked about where you could park in Ottawa. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
This time.
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David Migicovsky, Counsel (Ott-OPS)
And I think you said you had ---
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry?
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David Migicovsky, Counsel (Ott-OPS)
This time when you were here in February.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And so you said you were given some maps. So if we could just maybe call up that map, it’s JBA00000068. And so you'll see this. We’ll just scroll through it for a minute and then I’ll come back to it.
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
And this is what you were referring to and then there’s some maps, if we scroll down.
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David Migicovsky, Counsel (Ott-OPS)
Right. So this is what you were talking about, the information you had, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so if we could please look at page ---
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David Migicovsky, Counsel (Ott-OPS)
Were you coming eastbound on Highway 417?
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David Migicovsky, Counsel (Ott-OPS)
This time.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Okay. So were you travelling eastbound on Highway 417?
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David Migicovsky, Counsel (Ott-OPS)
You were coming westbound?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So ---
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
And so you weren’t able to park on Wellington, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you’ll see on page 3 the map shows parking only in -- or lane capacity 38 tractor trailers; do you see that on Wellington?
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David Migicovsky, Counsel (Ott-OPS)
And so ---
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David Migicovsky, Counsel (Ott-OPS)
Right. But you ---
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David Migicovsky, Counsel (Ott-OPS)
--- see there’s a limited amount of parking on Wellington, correct?
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David Migicovsky, Counsel (Ott-OPS)
Sorry, if you can ---
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David Migicovsky, Counsel (Ott-OPS)
Right. So you agree with me there was limited parking, and you knew that, on Wellington Street, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so if we keep scrolling down there are then instructions for where vehicles are supposed to come in, depending on whether they’re coming from the west or the east. And there are staging areas for those vehicles, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So there’s nothing that suggested that there was unlimited parking on Wellington, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And if you could also look at OPP speaking of maps and parking. If we could just turn up OPP00004261. And so if we could turn, please to page 5. You will see on the bottom -- well, if you look at Parliament Hill Area 1 you'll see the traffic plan provides that a decision will be made by the Incident Commander based on the location of the individual convoys on when to shut down traffic in this key area. And then if you scroll down a little further where it says “stacking area” you’ll see the real estate roadway on Wellington will be filled on a first come basis. No spots reserved. And then vehicles are o be staged along Wellington. And so there were specific instructions you understood as to where the convoys were supposed to be parking, correct?
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David Migicovsky, Counsel (Ott-OPS)
And then just finally, just to conclude, thee is an article in, I believe, Vice Magazine about you. Have you seen that one?
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David Migicovsky, Counsel (Ott-OPS)
Well, let me just ---
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David Migicovsky, Counsel (Ott-OPS)
Let me just ask you this, sir. The article talks about you having Facebooks postings saying that the 2020 election in the U.S. was rigged.
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David Migicovsky, Counsel (Ott-OPS)
I’m just asking you if that’s what’s posted on your ---
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And you shared on that Facebook hashtags for QAnon; fair?
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David Migicovsky, Counsel (Ott-OPS)
And that 9/11 was planned by a shadowy government body? Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Right. And just to ---
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David Migicovsky, Counsel (Ott-OPS)
--- just to finish off, I understand, and I’ll pull up this document, and maybe you could just confirm it, it’s OPP00003562. And if we could please go to page 5? “I’m just going to ask you about two pages on it. The third bullet under “Open source…” Sorry, yeah. And so it indicates an image of Ottawa Police Notice to Demonstrators has been posted to the Freedom Convoy Facebook page. And you see that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And is that in fact correct? You did see that Notice to Protestors?
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David Migicovsky, Counsel (Ott-OPS)
You did not see it?
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David Migicovsky, Counsel (Ott-OPS)
Okay. So you didn’t see that? Okay.
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David Migicovsky, Counsel (Ott-OPS)
And then if you could please go to page 7? The second paragraph, I believe. Yeah. You’re actually highlighted in there. And it indicates: “Police information indicates James BAUDER of Canada-Unity was more so aligned with KING…” That’s Pat King. “…his current position as to who he may align with or direct his some odd 40 [odd] trucks remains a gap.” So am I correct that you were in fact aligned with Mr. King?
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David Migicovsky, Counsel (Ott-OPS)
In terms of your participation in the ---
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
And ---
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David Migicovsky, Counsel (Ott-OPS)
And then it talks about you having 40 odd trucks that you believed were in your control. Is that a reasonable estimate?
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David Migicovsky, Counsel (Ott-OPS)
It was more or less?
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David Migicovsky, Counsel (Ott-OPS)
That you would have some influence on whether they would stay or go.
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much, Mr. Bauder.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. David Migicovsky for the Ottawa Police Service. I have a preliminary matter to raise, and I’m seeking your direction. It concerns the testimony of the panel of witnesses who are going to be appearing later today. So I’m happy -- I just wanted to alert you of it. I’ve advised my friends, Commission Counsel, and I’m in your hands as well; you want me to raise it now or wait till the witness has finished her cross-examination?
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David Migicovsky, Counsel (Ott-OPS)
I advised Commission Counsel yesterday, and I heard back, and we’ve had some discussions. So certainly Commission Counsel is aware of our position. I have not had -- I heard back from Commission Counsel this morning, and so I have not yet advised my colleagues of the issue.
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David Migicovsky, Counsel (Ott-OPS)
Sure.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, Commissioner. Good morning, Ms. Lich. My name is David Migicovsky. I’m a lawyer for the Ottawa Police.
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David Migicovsky, Counsel (Ott-OPS)
You’ve been very clear in your evidence that it was your intent to plan a peaceful protest; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that was very important to you as one of the organizers?
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David Migicovsky, Counsel (Ott-OPS)
And you did not plan to disrupt the lives of Ottawa residents or businesses?
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David Migicovsky, Counsel (Ott-OPS)
And you obviously, consistent with that, obviously, didn’t plan to break bylaws, honk your horns continuously, defecate on people’s lawns, harass people, or block emergency lanes? That wasn’t the plan; was it?
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David Migicovsky, Counsel (Ott-OPS)
And it wasn’t the plan; was it? As one of the organizers, you wouldn’t have been in favour of condoning that kind of activity; would you?
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David Migicovsky, Counsel (Ott-OPS)
And because it wasn’t your plan, and you in fact had a code of conduct, you wouldn’t have expected the police to turn the convoy away when they came to Ottawa; would you?
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David Migicovsky, Counsel (Ott-OPS)
And if that had happened and none of the trucks were allowed in, we’ve heard from OPP witnesses that that likely, at that point, would not have deterred the convoy, because some had driven from very far away. Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
I’m saying that if, when you got here on the 28th and the 29th, the city was barricaded and you couldn’t go anywhere, the OPP witness indicated that that wouldn’t have turned the truckers away, because they’d come pretty far for this.
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David Migicovsky, Counsel (Ott-OPS)
And no one from the Convoy organizers, to your knowledge, was on social media before the Convoy encouraging anti-social behaviour?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you’ve seen the Lawton book about the Freedom Convoy?
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David Migicovsky, Counsel (Ott-OPS)
And in his book, he says that the convoy organizers did not intend to be on residential streets?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with that?
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David Migicovsky, Counsel (Ott-OPS)
But in fact, that is what happened?
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David Migicovsky, Counsel (Ott-OPS)
There were staging areas, but they were too far away from Parliament and people wanted to be closer; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you’ve been very clear in the affidavit you filed in court that there were truckers who came from all over?
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David Migicovsky, Counsel (Ott-OPS)
And you indicated, specifically, in that affidavit, which is -- we don’t need to call it up, but for the record, it’s JCEP0012 [sic], and paragraph 2 and three, that you did not control the truckers? Those are your words?
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David Migicovsky, Counsel (Ott-OPS)
You’re agreeing with me?
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry?
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David Migicovsky, Counsel (Ott-OPS)
You didn’t control the truckers?
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David Migicovsky, Counsel (Ott-OPS)
And Supt. Drummond attended a meeting he’s heard with some of your representatives on the 13th of February. That was after the date of your letter with the Mayor. Those were on the 12th; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so the agreement with the Mayor was reached on the 12th of February?
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David Migicovsky, Counsel (Ott-OPS)
And then we saw that there was a meeting on the 13th that I believe Mr. Wilson may have attended with the Mayor’s ---
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David Migicovsky, Counsel (Ott-OPS)
--- office? And Supt. Drummond records in his notes, and again, I’ll give you the reference, but I -- in the interest of time, I won’t call it up, but it’s OPS14455 at page 47. The Convoy organizers, the representatives at that meeting, explained that they did not control Rideau/Sussex?
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David Migicovsky, Counsel (Ott-OPS)
But you’re aware that that was said ---
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David Migicovsky, Counsel (Ott-OPS)
--- by ---
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David Migicovsky, Counsel (Ott-OPS)
Okay. And that your representatives also said they didn’t control Coventry Road?
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David Migicovsky, Counsel (Ott-OPS)
And so -- and they also said they could not be certain if the truckers there would move?
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David Migicovsky, Counsel (Ott-OPS)
And even for those groups whom you did have some control or influence on, I guess influence, we’ve heard that truckers are pretty independent minded people?
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David Migicovsky, Counsel (Ott-OPS)
They can’t be made to do what they don’t want to do?
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David Migicovsky, Counsel (Ott-OPS)
And in addition to not controlling the truckers, you also did not have control, obviously, of the protestors on the street and whether they could block trucks moving, for instance?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, we heard about a previous effort by Mr. Wilson and Ms. Chipiuk on February 10th at Rideau and Sussex where police were going to move the barriers so trucks could move, but the crowd dynamics got in the way, and the crowd stopped the trucks from moving because they didn’t trust the police; correct?
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David Migicovsky, Counsel (Ott-OPS)
You were there as well. And so you saw that. And you agreed that that would be dangerous then?
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David Migicovsky, Counsel (Ott-OPS)
And you agreed it would be dangerous to move the trucks in that scenario? Because the crowd swelled?
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David Migicovsky, Counsel (Ott-OPS)
And we have heard that notice was given to the demonstrators in advance that they would have to leave. You heard that evidence?
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David Migicovsky, Counsel (Ott-OPS)
We’ve heard quite a bit of that evidence, that demonstrators were told to leave?
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David Migicovsky, Counsel (Ott-OPS)
You didn’t know that? Okay. You’re familiar with the PLTs; correct?
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David Migicovsky, Counsel (Ott-OPS)
I’m going to show you some PLT logs. And you understand that the PLTs were a liaison with the protestors?
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David Migicovsky, Counsel (Ott-OPS)
And would communicate with them?
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David Migicovsky, Counsel (Ott-OPS)
Okay. I’m going to call it up. I’m not going to start by taking you directly to it, but I will take you to a particular passage. The document is OPS00014053. And so while that’s being called up, Ms. Lich, those are PLT logs as of February 25th. And I can take you through them in detail and show you, but in order to save some time, I’m going to attempt to summarize what they say on the issue of notice that was given to the truckers and protestors before the Public Order Unit moved in to clear the intersection. And so what I see in those is on February -- there were various zones in the city. And I see on February 16th, the PLTs attended SJAM and gave those present the letter, and were told by protestors that the letter wasn’t legal because it doesn’t have a signature.
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David Migicovsky, Counsel (Ott-OPS)
That’s sort of similar to what you said; correct?
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David Migicovsky, Counsel (Ott-OPS)
I will take her to it where it’s necessary. If she doesn’t agree, she doesn’t agree. That’s fine. I don’t wish to use my 15 minutes by going through the document in detail. If she can’t agree -- I will take her to portions of it.
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David Migicovsky, Counsel (Ott-OPS)
So PLT say they attended SJAM and they were told by the truckers that it wasn’t legal, that notice, and it wasn’t significant. Do you know about that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Do you have any reason to deny that occurred as noted in the PLT logs?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I understand from those logs that the next day, on February 17th, they attended again and delivered the message again? And they attended again on the 19th and delivered it again to those who remained? Any reason to deny that that occurred?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so you weren’t being -- you weren’t on the 17th, were you?
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David Migicovsky, Counsel (Ott-OPS)
Right. And I'm pretty confident, because you were one of the organisers, that the truckers were communicating with you and telling you what was happening.
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David Migicovsky, Counsel (Ott-OPS)
All over the city.
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David Migicovsky, Counsel (Ott-OPS)
And then in Zone 2, and this is on page 7 of the same document, Mr. Marazzo met the PLT on the 16th and the message was delivered to him, and then it was delivered on Wellington Street and the PLTs describe hostile and screaming at the police, and the police then had to withdraw due to the hostility. Any reason to disagree with that?
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David Migicovsky, Counsel (Ott-OPS)
Any reason to disagree with it?
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David Migicovsky, Counsel (Ott-OPS)
The witness can answer if she was aware of it or not. She wasn't -- I don't -- I think it's quite proper cross-examination.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Well ---
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David Migicovsky, Counsel (Ott-OPS)
In my submission, it is highly relevant because the witness said that no notice was given. And I'm going to suggest to you, Ms. Lich, that the PLTs went to every single site and gave notice to everyone, and you're saying you didn't know that. Is that right?
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David Migicovsky, Counsel (Ott-OPS)
Okay. I'm going to ask that we turn up OPS12205, page 60. Yeah, just at the top where it says Swiss Hotel. I'm going to tell you something, and maybe you'll remember this, Ms. Lich: "PLT Peace, Jim and OPS PLT Meg attended Swiss Hotel and met with Lich and Bulford and O'Connor. Message was delivered and explained. All parties were upset and Lich was crying in regards to how unfair she felt this action was. PLT advised them to depart and message this out to others. All parties were upset when it was explained that people who are helping (logistics) can also be charged and held accountable. All understood messaging. They do feel that this message will harden participants' resolve as they feel it is a tactic of dictatorial government. Suggestion was made to have children leave the red zone." Seems pretty clear to me that you were given the message; right?
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David Migicovsky, Counsel (Ott-OPS)
So the PLTs, that's fabricated; right?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
You were upset and you were crying because it was over and they told you to leave.
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David Migicovsky, Counsel (Ott-OPS)
And they told you to depart and they told you to message that to others; right?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry, you don't remember?
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David Migicovsky, Counsel (Ott-OPS)
It seems to me your memory is selective. When I take you to something that implicates you, you have no memory of it.
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David Migicovsky, Counsel (Ott-OPS)
I'll move on. You would agree, you've talked about the fact that you didn't know the truckers or control them, and you didn't police them?
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David Migicovsky, Counsel (Ott-OPS)
You weren't surveilling them?
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David Migicovsky, Counsel (Ott-OPS)
You didn't know their past, you didn't have intelligence information about all of them?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you would agree with me that there may be other individuals or organisations that would have more intelligence information about some of the protesters than you did?
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David Migicovsky, Counsel (Ott-OPS)
Would you agree with that?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. I said you would agree with me that there may be other individuals or organisations that would have more intelligence about some of the protesters than you did.
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me as well that you have no background or formal training in crowd dynamics and what can incite a crowd to take action?
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David Migicovsky, Counsel (Ott-OPS)
Or how to prevent a crowd from escalating or preventing violence?
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David Migicovsky, Counsel (Ott-OPS)
And so just two more areas if I may just have two more minutes, Commissioner.
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David Migicovsky, Counsel (Ott-OPS)
HRF00001510, if I may have that document, Mr. Clerk, please. Is an email from Eva Chipuik. Eva Chipuik was one of the convoy lawyers?
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David Migicovsky, Counsel (Ott-OPS)
And so this is on February 15th. She indicates, and for some reason we have not been given the attachment, although we've been told that solicitor/client privilege was waived, but in the email it says: "I've drafted something on the right to protest and have taken a very cautious approach, because I don't exactly know what the emergency orders are, but it's my understanding that they can limit the right to protest, and while that can be challenged in court, at the moment people who do not comply may be arrested. I think if we're advising people it's important to let them know all the risks they are facing and let them make their own [decision]." You've seen that from one of your lawyers?
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David Migicovsky, Counsel (Ott-OPS)
So two possibilities: either your lawyers didn't give that advice to you, or they did give you that advice to you.
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry, my friend have a chance to examine. This is quite proper cross-examination.
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David Migicovsky, Counsel (Ott-OPS)
Okay, I will get to that, but I -- there's a reason why I'm asking it in the way I have.
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David Migicovsky, Counsel (Ott-OPS)
So two possibilities: either your lawyer didn't give you that advice, or you did get that advice from someone.
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David Migicovsky, Counsel (Ott-OPS)
Okay, so you don't recall whether your lawyer gave you that email or not.
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I understand that you've been charged with several Criminal Code offences, correct? Mischief, obstructing justice, counselling others to commit mischief, intimidation; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I understand you understand that the purpose of this Inquiry is not to determine your guilt or innocence; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you've received disclosure of documents from the Crown or partial disclosure I believe you said?
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David Migicovsky, Counsel (Ott-OPS)
And you understand because the criminal process is ongoing there's a principle -- a case called Wagg. And so as a result of that, you understand that I am not allowed to rely on documents that are part of the criminal brief -- the Crown brief in this proceeding. You understand that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you understand that if that's the case I may not be able to challenge some of the statements you have said; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. If I may just ask just one final question, then. You talked about concerns for safety; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that would include concerns for officer safety?
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David Migicovsky, Counsel (Ott-OPS)
And so we have heard evidence of police officers being swarmed by protesters, and I assume that you would be concerned about that.
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David Migicovsky, Counsel (Ott-OPS)
Right. But you don’t have sufficient control over the truckers or the protesters to prevent that, that’s occurred; correct?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much ---
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David Migicovsky, Counsel (Ott-OPS)
--- for answering my questions.
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky ---
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David Migicovsky, Counsel (Ott-OPS)
--- for the Ottawa Police.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Sure, thanks very much.
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David Migicovsky, Counsel (Ott-OPS)
So I'll remain seated here, Commissioner.
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David Migicovsky, Counsel (Ott-OPS)
Sure. It's David Migicosvky, Counsel for the Ottawa Police Service. We have a very real concern with respect to the witness panel of Chris Deering and Maggie Dingman. I believe there is now a different name, and I apologize. It’s Braun -- Hope Braun, I believe. Those two individuals -- and our concern is essentially one of procedural fairness. Those two individuals were not on the list of witnesses provided by the Commission, and so last Friday, ---
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David Migicovsky, Counsel (Ott-OPS)
Correct. And what we found out was on last Friday, October 28th at 12:37 p.m., we received an email from the Commission saying that these two individuals would be called as witnesses, and attaching two statements from these individuals. No information had been previously provided about these individuals, or about the issues that they were going to testify about, which are the -- how their arrest was handled, nor were there any documents provided by the parties, including the Ottawa Police Service, about the manner of arrest. It appears that both of these individuals, from their statements, are going to give evidence about the circumstances of their arrest by unknown officers. I’ve been able to determine in one case that it was not an OPS officer, one of them, but we are trying to find out information. These are arrests that took place on February 18th, after the invocation of the Emergencies Act. These individuals were not arrested pursuant to the Emergencies Act. They were arrested based on common-law powers and the Criminal Code. And my concerns really are two-fold. Firstly, the information we say is not relevant to your mandate under the Act, and the second question is one of procedural fairness. There were over 275 arrests made by the police in that period of February 18th to the 20th. None of the police witnesses were asked specifically about those arrests, no documents were requested. The last police witness who testified in this proceeding was on Wednesday, October 26th. Had those witness statements been provided prior to the completion of the police witnesses, then at the very least, we could have asked our witnesses to provide evidence with respect to the arrest plan, with respect to the circumstances of the arrest of those two individuals, and the other 275 people who were arrested. I am not faulting Commission Counsel. I understand that the statements were provided to them and they provided them to us immediately after. But it was two days after the last witness testified. Those statements were in the -- those were witnesses who are here represented by counsel, they had an obligation to produce documents. They chose, deliberately or otherwise, to not present that evidence and not allow me, then to respond to it. And it’s obvious that some of that information, they had beforehand. And in fact, to add to the procedural unfairness, last night, we received an email from counsel for the Convoy organizers attaching seven more videos that also would have existed that were not disclosed. There’s no explanation for why the Convoy organizers have not had to follow the same rules as everyone else. Those statements, even if they were relevant, and I don’t concede that they are, should have been provided prior to police witnesses testifying. It creates a serious and irreparable breach of procedural fairness to have you left with two arrests out of 275, which I am unable to provide evidence in response to, both those specific arrests, as well as the arrest plan in general. And there are, I say, two possible solutions. The first is to not allow that evidence to be heard. It’s not relevant to your mandate. And even if it was, it would be very difficult to draw any conclusion from the evidence of two individuals out of 275 arrests when you’ve heard no evidence about any of the arrests of anyone else, or the arrest plans, or any explanation of those two particular arrests. Alternatively, if you are inclined to allow that panel to testify, including adding new documents that were not on the database and were provided last night, then the OPS must, we say, as a matter of procedural fairness, be allowed the opportunity to call another witness to provide evidence about the arrest plans and the exercise of use of force options in connection with the exercise of police powers generally and specifically with respect to the scene that the officers encountered on February 18. You have not heard about what is involved when a Public Order Unit has to exercise tactical options. The Commission didn’t lead this evidence, nor did we. Similarly, we didn’t provide any documents surrounding those arrests. So while my first submission is that you should not allow this evidence, as an alternative, if you are inclined to do so, then I would ask for the opportunity to call evidence so that in fairness, the police witnesses can address what should have bene put to them by the Convoy organizers and which, for some reason, was not. Those are my only submissions. Thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky for the Ottawa Police. The one point I want to respond to that has not, with respect, been addressed by my friends and which is highly problematic, I suggest, is the convoy lawyer has indicated that he put an issue with respect to an arrest to Chief Bell. And that is correct. However, he provided no information, no details, no indication of who it was, when it was. It came out of the air. And what makes that more problematic is that, obviously, that information was in his possession and there was no documentation provided beforehand. This was sprung after the police witnesses had already testified when we then get these statements. Had the rules been followed, that witness would have seen those statements, would have seen documents. We would have had the opportunity to put in documents and call evidence or asked to call evidence in response. The final point I note is that my -- one of my friends indicated that two of -- that several of the convoy witness -- several of the Coalition’s witnesses testified and that is true. The difference is, the rules were followed and everybody knew before they testified what they were going to say. So the Convoy Organizers had procedural fairness, as did everybody else. In this case, procedural -- there is a serious denial of procedural fairness and that’s what we say must be addressed. Thank you.
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David Migicovsky, Counsel (Ott-OPS)
Sorry. I didn’t mean to cut off my friend. This is not a witness. That one was also unfair, but we were at least able to get instructions and able to deal with it in cross-examination.
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David Migicovsky, Counsel (Ott-OPS)
No, I have no objection, by the way, for you reviewing those statements so that you can understand the nature of the evidence.
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky; I’m counsel for the Ottawa Police. Good afternoon, Mr. Deering. Good afternoon, Ms. Hope-Braun.
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David Migicovsky, Counsel (Ott-OPS)
Mr. Deering, you were looking at a statement that you had in front of you and that’s the document that’s called, “Canada Freedom Rights Movement Statement - Chris Deering”?
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David Migicovsky, Counsel (Ott-OPS)
You have a document in front of you ---
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David Migicovsky, Counsel (Ott-OPS)
Sure. I just want to see what those notes are. Is it the same as your statement that you were referring to?
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David Migicovsky, Counsel (Ott-OPS)
Or is that still -- okay.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so what it is, it’s a document -- we can put it up on the screen, but I think that you have it in front of you. It’s called, “Canada Freedom Rights Movement Statement of Chris Deering,” is that right?
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David Migicovsky, Counsel (Ott-OPS)
Sure. Have a look at it, and tell me what it says, or if you want to show it to me?
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David Migicovsky, Counsel (Ott-OPS)
Sure. It’s called, “Canada Freedom Rights Movement Statement of Chris Deering.” Perhaps we can put it up on the screen so you can ---
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David Migicovsky, Counsel (Ott-OPS)
Sure, we’ll do that. I can’t recall the number, but I believe ---
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David Migicovsky, Counsel (Ott-OPS)
Thank you. If you could just put that up so that Mr. Deering could see it? (SHORT PAUSE)
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David Migicovsky, Counsel (Ott-OPS)
Is that what you had in front of you?
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David Migicovsky, Counsel (Ott-OPS)
So sorry; did you have something else with you?
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David Migicovsky, Counsel (Ott-OPS)
These are notes that you made; when?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Perhaps those notes can be filed at some point as well. Those are not notes you made at the time of these incidents, right?
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David Migicovsky, Counsel (Ott-OPS)
Okay. I didn’t realize, I thought you had your statement in front of you when you were testifying, but you had some other notes?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Ms. Hope-Braun, I believe your statement also says at the top of it, “Canada Freedom Rights Movement Statement”; correct?
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David Migicovsky, Counsel (Ott-OPS)
Perhaps we could call up Ms. Braun’s statement ---
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David Migicovsky, Counsel (Ott-OPS)
That’s your statement as well; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so those statements say at the top, “Canada Freedom Rights Movement Statements”; who put that on them?
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David Migicovsky, Counsel (Ott-OPS)
You don’t know?
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David Migicovsky, Counsel (Ott-OPS)
Those would be the convoy organizer lawyer?
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David Migicovsky, Counsel (Ott-OPS)
Okay. It wasn’t any of the people at this table, was it?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Who gave you the statement?
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David Migicovsky, Counsel (Ott-OPS)
Who prepared this statement, ---
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David Migicovsky, Counsel (Ott-OPS)
--- typed it up and gave it to you?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so one of the Justice Centre’s lawyers prepared this statement and sent it to you; correct?
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David Migicovsky, Counsel (Ott-OPS)
And then they gave it to you, and they typed on it, “Canada Freedom Rights Movement Statement of Chris Deering and of Maggie Dingman,” the original ones that -- correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And that's the same heading that we see on the statements of Tom Marazzo, Canada Freedom Rights Movements. But you don't know what that means.
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David Migicovsky, Counsel (Ott-OPS)
See, what I'm trying to figure out is every -- most of the other witnesses here were interviewed by the Commission and then we have statements that are on Public Order Emergency Commission letterhead.
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David Migicovsky, Counsel (Ott-OPS)
You were not interviewed by the Commission's lawyers to prepare those statements; correct?
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David Migicovsky, Counsel (Ott-OPS)
These -- you don't remember. And how about you, Mr. Deering?
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David Migicovsky, Counsel (Ott-OPS)
And neither one of you have criminal charges against you; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you told your story to a -- one of the convoy organiser lawyers; is that right?
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David Migicovsky, Counsel (Ott-OPS)
The Justice Centre, I apologise.
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David Migicovsky, Counsel (Ott-OPS)
And neither one of you, as I understand it, has filed a complaint with the Ottawa Police Service about your arrest.
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David Migicovsky, Counsel (Ott-OPS)
And neither one of you has contacted the Crown to say, "Hey, excessive force was used with me"?
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David Migicovsky, Counsel (Ott-OPS)
And complaints against the police can be filed with an office, a government office called the Office of the Independent Police Review Directorate, or IPRD. Neither one of you filed a complaint with them; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the SIU, that's the Special Investigations Unit, you can investigate situations in someone -- in which someone says they have been seriously injured by the actions of the police. And so I just want to be clear, there haven't been any complaints or investigations by the SIU have there?
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David Migicovsky, Counsel (Ott-OPS)
And I understand, Mr. Deering, that you have some notes, and you're going to share those notes with me; correct?
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David Migicovsky, Counsel (Ott-OPS)
Sure. And I understand, Ms. Hope-Braun, you do not have any notes?
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David Migicovsky, Counsel (Ott-OPS)
And you haven't filed any notes with your lawyers or the Justice Centre, lawyers?
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David Migicovsky, Counsel (Ott-OPS)
And I didn't see that trauma specialist note ---
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David Migicovsky, Counsel (Ott-OPS)
--- in the database, but perhaps I missed ---
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David Migicovsky, Counsel (Ott-OPS)
It wasn't.
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David Migicovsky, Counsel (Ott-OPS)
So you did not give any documentation.
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David Migicovsky, Counsel (Ott-OPS)
Mr. Deering, I understand from your evidence that you were in Ottawa on February 11th and then returned on the evening of the 17th and 18th?
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David Migicovsky, Counsel (Ott-OPS)
And at that point the Emergencies Act had been passed; correct?
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David Migicovsky, Counsel (Ott-OPS)
And there was an exclusion zone. You knew that; correct?
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David Migicovsky, Counsel (Ott-OPS)
You did?
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David Migicovsky, Counsel (Ott-OPS)
And you knew what the newspapers were telling people, not to go there unless you have an exemption ---
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry?
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David Migicovsky, Counsel (Ott-OPS)
And none of the sources on which you get information were telling you don't go into that zone.
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. None of the sources from which you get information were telling you don't go in that zone?
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David Migicovsky, Counsel (Ott-OPS)
That's okay. Ms. Hope-Braun, you presumably knew that you were told not to go into that area unless you had specific reasons to be there?
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David Migicovsky, Counsel (Ott-OPS)
It wasn't -- you didn't turn on the radio, you didn't read any social media, you didn't go on Facebook?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And you knew that the Emergencies Act had been passed?
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David Migicovsky, Counsel (Ott-OPS)
What day were you arrested?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. The Emergencies Act had passed.
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David Migicovsky, Counsel (Ott-OPS)
And so both of you, you were in the area, you did not live in the area, you were not on your way to an appointment; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you both, I believe, fell to your knees and refused to move while the police operation was being carried out; correct?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry, I didn't hear you. I apologise.
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David Migicovsky, Counsel (Ott-OPS)
Right. You were on your knees and you refused to move.
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David Migicovsky, Counsel (Ott-OPS)
And Mr. Deering, you indicated that one of the police officers even told you to hide.
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David Migicovsky, Counsel (Ott-OPS)
So he gave you some advice, and in spite of that you stayed there.
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David Migicovsky, Counsel (Ott-OPS)
And in fact, you wanted -- you believed as a veteran you should put yourself in the way of other protesters because veterans are better able to withstand what was about to come you said?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry.
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David Migicovsky, Counsel (Ott-OPS)
And you were on the road, Mr. Deering; correct?
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
You were on the road when you were arrested?
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
And so were you, Ms. Hope- Braun, weren't you?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so you understand you're obstructing a roadway; correct? (LAUGHTER/RIRES)
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David Migicovsky, Counsel (Ott-OPS)
So everyone, all of the protesters who were arrested were obstructing a roadway; correct?
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David Migicovsky, Counsel (Ott-OPS)
Yeah.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And there were also announcements made in both official languages telling people to move?
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David Migicovsky, Counsel (Ott-OPS)
And you were there, Mr. Deering, you said 15 minutes before and you saw the police were looking violent and aggressive, you said, and so you decided to stay on that roadway; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you're both aware, I take it, I'm just going to finish off, that there is an online fundraising campaign for both of you run by a group called Café?
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David Migicovsky, Counsel (Ott-OPS)
A Derek Sloan. He's actually sitting in the audience.
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David Migicovsky, Counsel (Ott-OPS)
You're aware of that?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, I see on that fundraising that he is fundraising for Chris Barber, Maggie Dingman, Brigitte Belton, Chris Deering, Danny Bulford and Tamara Lich. You know all of those people; correct?
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David Migicovsky, Counsel (Ott-OPS)
Did you see Mr. Sloan today?
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David Migicovsky, Counsel (Ott-OPS)
Right. And in order to benefit from that fundraising, I take it it’s important that you tell the story that you just told; correct?
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David Migicovsky, Counsel (Ott-OPS)
In order to benefit from that fundraising, it’s important that you tell the story that you’ve just told; correct?
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David Migicovsky, Counsel (Ott-OPS)
Mr. Sloan is associated with the Ontario Party.
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David Migicovsky, Counsel (Ott-OPS)
Right. Okay. Thank you very much. I have no further questions. Thank you both.
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David Migicovsky, Counsel (Ott-OPS)
Just to perhaps -- there are a lot of documents, obviously. David Migicovsky, sorry, for the Ottawa Police. Perhaps before my friend introduces one of the documents she could just confirm whether it was something that was uploaded last night for the first time. I know there are seven videos that were sent to me last night that were not on the system, so if we could just indicate for the record whether that is one of those documents because I may have a specific objection to that.
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David Migicovsky, Counsel (Ott-OPS)
And just so that we’re clear, that would be what was produced in the last couple days; correct?
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David Migicovsky, Counsel (Ott-OPS)
We’ll address that later. Thank you.
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky for the Ottawa Police. For the reasons I’ve already articulated, that should not be allowed. These are things that should have been disclosed long ago and we’ve had no -- I get it sometimes things come up at the last minute, but we’ve had no explanation for why this was not disclosed.
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David Migicovsky, Counsel (Ott-OPS)
David Migicovsky for the Ottawa Police. I understand that is one of the videos that was disclosed last night as well.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Mr. Bulford. My name is David Migicovsky; I’m a lawyer for the Ottawa Police Service.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon. You talked about your interactions with the PLT and I gather from reviewing your statement, you had many interactions with the PLT; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And they were very helpful?
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David Migicovsky, Counsel (Ott-OPS)
And you had the sense that they wished they had more ability to negotiate?
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David Migicovsky, Counsel (Ott-OPS)
Right. In your statement you prepared, you have a statement that says, “Canada Freedom Rights Movement, a Daniel Joseph Bulford statement.” That’s the statement that was prepared for you by the Justice Centre’s lawyers?
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David Migicovsky, Counsel (Ott-OPS)
And you’ve put that logo on top, or that name on top, “Canada Freedom Rights Movement”?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And did you suggest that everyone else do that as well?
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David Migicovsky, Counsel (Ott-OPS)
Okay. In that report, you indicate a number of potentially criminal actions involving non- convoy members that you reported to the OPS, and so I see things in that report about bikers, about the new Queen of Canada, false claims that bricks had been ordered in your name, potential instigation, concerns about Canada unity, vandalism of trucks, social media posts made by a Mr. Lacasse, a sabotage of transport trucks, bikers, and bomb threats; right? Those are all things that you referenced?
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David Migicovsky, Counsel (Ott-OPS)
And you’re a strong supporter, I take it, of law and order?
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David Migicovsky, Counsel (Ott-OPS)
And I know from the Ottawa Police Service Institutional Report that I won’t turn up in order to save time that during the period of the convoy, there were a number of criminal charges laid. In fact, we know -- and it’s on page 14, that there were 533 of them, according to Schedule C. But what I don’t see a single notation of in your statement is where you brought any of those criminal offences to the attention of the Ottawa Police.
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David Migicovsky, Counsel (Ott-OPS)
The dates, yes. You statement -- I’m not sure when your statement was prepared ---
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David Migicovsky, Counsel (Ott-OPS)
--- but the evidence that we have in the record is that during the period of the Freedom Convoy, so from January 28th to a date in March, there were a total of 533 criminal charges.
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David Migicovsky, Counsel (Ott-OPS)
Sorry, I can’t remember if that’s laid or people arrested. And so I didn’t see anywhere in your statement where you brought information about those -- that criminal activity to the attention of the Ottawa Police.
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David Migicovsky, Counsel (Ott-OPS)
I think ---
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David Migicovsky, Counsel (Ott-OPS)
I think the question was fair and my friend’s now used a couple minutes of my time. But there were a lot of charges during the period of the Freedom Convoy; we know that. And I don’t see anywhere in your statement where you reference informing the Ottawa Police of the situations leading to those criminal charges.
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David Migicovsky, Counsel (Ott-OPS)
You were in custody as of what date, sir?
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David Migicovsky, Counsel (Ott-OPS)
And -- well, the record will speak for itself. And so in your statement in paragraph 80 of your statement, you say you did everything to cooperate with the police and to maintain public peace and police safety; is that correct or is that incorrect?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so I also note that in the Institutional Report of the Ottawa Police that the communications centre received many emergency calls from businesses to have protesters removed because they weren't wearing a mask, to deal with complaints about being harassed while walking on the street with masks, to complaints of being sexually harassed and threatened. I see as well that questions were asked about OPS's enforcement plans. I see as well that there were noise complaints that were received and requests for charges against the protesters. And I don't see anywhere, sir, in your statement where you reference any of those things.
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David Migicovsky, Counsel (Ott-OPS)
You've heard the evidence of Councillors McKenney and Fleury?
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David Migicovsky, Counsel (Ott-OPS)
And you heard about what their constituents had to put up with; correct? You heard that evidence? I'm just asking you that question.
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David Migicovsky, Counsel (Ott-OPS)
And so either -- did you believe what Councillor McKenney and Fleury said, or did you think the issues they were raising were trivial?
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David Migicovsky, Counsel (Ott-OPS)
You told me about you clearly respect law and order. I take it you have a lot of respect for the Canadian court system. Correct?
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David Migicovsky, Counsel (Ott-OPS)
It's important that decisions of the court be respected?
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David Migicovsky, Counsel (Ott-OPS)
And one of the decisions was that the convoy had negatively impacted residents and the convoy protesters were breaching by-laws. You're aware of that?
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David Migicovsky, Counsel (Ott-OPS)
Were you aware of that, sir?
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David Migicovsky, Counsel (Ott-OPS)
And as a police officer you understand that disclosing confidential information is an offence?
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David Migicovsky, Counsel (Ott-OPS)
Confidential information. It's an offence under the Police Services Act and it's also an offence under the Code of Conduct for the RCMP; correct?
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David Migicovsky, Counsel (Ott-OPS)
No, I'm just asking you the question generally, that the disclosure of confidential information is an offence; correct? While -- if a serving police officer discloses information that is an offence; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Right. And same thing would apply to a municipal police officer who discloses information they had as a police officer?
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David Migicovsky, Counsel (Ott-OPS)
Okay, sure. It would be breach of confidence if that's of assistance. But it can also potentially be a criminal offence as well, correct, breach of trust?
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David Migicovsky, Counsel (Ott-OPS)
And being a person who supports law and order, you would not condone that kind of thing, would you? You wouldn't want police officers to be breaching their oaths and providing confidential information to members of the convoy, would you?
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David Migicovsky, Counsel (Ott-OPS)
And so Mr. Wilson in his witness statement talks about people working at the Swiss Hotel. That was where you were?
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David Migicovsky, Counsel (Ott-OPS)
And so he said, "There were former law enforcement officers, they had radios, maps, many of these ex service personnel were connected and brought in intel. Wilson is unaware of the sources, but the Freedom Convoy was receiving leaked information from law enforcement." (As read) I just want to be clear, you never became aware of any leaked information from Ottawa Police Service ---
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David Migicovsky, Counsel (Ott-OPS)
--- officers, did you?
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David Migicovsky, Counsel (Ott-OPS)
And you never received confidential information from an Ottawa Police officer, did you?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And Mr. Wilson never told you who these people were.
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David Migicovsky, Counsel (Ott-OPS)
And you were very involved in the security response and the incident command that was going on at that hotel; correct?
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David Migicovsky, Counsel (Ott-OPS)
So one would expect that you would know if there was leaked confidential information; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you're not suggesting, obviously, that if such a thing had occurred that the Ottawa Police Service would condone that kind of thing; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right. And one of the things you reference in your statement at paragraph 80 is you accused the police leadership, and I'm just going to quote you of, quote: "...knowingly attempting to instigate a strong emotional reaction from convoy participants by using inflamed rhetoric and threatening the involvement of Child Protective Services." (As read)
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David Migicovsky, Counsel (Ott-OPS)
Okay. Mr. Clerk, I wonder if I could ask you, please, to call up HRF00001553, and if we go to page 22, please. At paragraph 103. Thank you. And I'll just read that sentence, the first sentence, sir, "I also advised" -- and this is from your statement; correct?
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David Migicovsky, Counsel (Ott-OPS)
"I also advised him of my belief that our own Government was committing crimes against humanity, allowing thousands of Canadians to die because they've been denied life saving treatment and others have been disabled or have died from the vaccine, something a homicide detective may want to consider." And would you agree with me that that would be an example of inflammatory rhetoric, attempting to instigate a strong emotional response?
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
And in -- I won't take you to the paragraph to save time, but in paragraph 121 of your statement you also talk about the extreme dehumanisation of unvaccinated people. And I guess you don't see that as inflammatory rhetoric either; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in your witness statement you talk about the police breaching windows and extracting protesters during the tactical operation, the POU operation. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And you know, of course, from your experience in law enforcement that it's easy to be an armchair quarterback and say what's wrong with the police carrying out a tactical operation after the fact; correct? It's very difficult to be on the ground and in the theatre of operations, isn't it?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that in the theatre of operations police may be dealing with situations that may be volatile and more dangerous than appear to onlookers; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you're aware from the police operations that were carried out by the Ottawa Police Service, the OPP, the RCMP and a number of other Public Order Units, you're aware from your experience that there would generally be an arrest and detention plan prepared for those type of circumstances; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so OPP04 -- OPP00004286, if we could just briefly call that up.
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David Migicovsky, Counsel (Ott-OPS)
If I might just have one more minute?
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David Migicovsky, Counsel (Ott-OPS)
Thanks very much. That is -- if you’d just be good enough to scroll down. That is the arrest and detention plan with respect to the operation that was carried out and you wouldn’t presume to say that it wasn’t an appropriate arrest plan, would you?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And finally just to finish off, you testified in answer to my friend, that you expected when -- although there was an announcement of the -- a large number of police officers and you realized that they were preparing for a tactical or a public order unit response, you testified that you thought that the police officers would do the right thing, correct?
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David Migicovsky, Counsel (Ott-OPS)
And you thought that they would disregard the situation and simply allow the status quo to continue, correct?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much, those are all my questions.
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David Migicovsky, Counsel (Ott-OPS)
You know I hate to -- it’s David Migicovsky. I hate to spend more time on Friday evening of everyone, but we really are getting into cross-examination.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Mayor Dilkens. My name is David Migicovsky and I’m counsel for the Ottawa Police Service.
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David Migicovsky, Counsel (Ott-OPS)
The protest in Windsor -- or the blockade, I should say, began on February 7th and was cleared on February 13th; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And geographically, the area where the blockade was, I understand was a significantly smaller footprint than in Ottawa; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And so the total number of trucks when -- at its highest was, I think you said, 200?
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David Migicovsky, Counsel (Ott-OPS)
I see.
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David Migicovsky, Counsel (Ott-OPS)
Sure. I seem to recall that it was about 100 or so, but we can verify that with the deputy chief. The convoy reached Ottawa on January 28th, I believe, and I understand that the City of Windsor learned some important lessons based on what had occurred in Ottawa; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And that was because it was an unprecedented situation for which neither the City of Windsor nor the Windsor Police could be prepared. But given what they learned in Ottawa, there were some things that they thought they could adapt; is that right?
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David Migicovsky, Counsel (Ott-OPS)
Sure. And so one of them was -- and you mentioned it to my friend, Mr. Curry. If we could just pull up WIN00000152 at page 2, please, there’s an email from Andrew at 18 -- further down, please. You’ll see the Councillor Costante; Councillor Costante is a municipal councillor. And, actually, if you scroll down a little bit further, you’ll see the beginning of the chain. And so what I take -- and you can scroll through this if you need to. What I take from this is the point that you made with Mr. Curry is that it was important that the City be united with the police in terms of their response; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that everybody from the City speak with one voice, that the councillors not all be saying different things, correct?
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David Migicovsky, Counsel (Ott-OPS)
And I see from the email chain that in fact, Councillor Costante did comply with that request, correct?
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David Migicovsky, Counsel (Ott-OPS)
And the concern was that that was not what had been -- occurred in Ottawa, correct?
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David Migicovsky, Counsel (Ott-OPS)
And I believe the OPP also may have talked about the need for everybody to speak with one voice, correct?
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David Migicovsky, Counsel (Ott-OPS)
And there's another example. I'll just call it up. It's WIN00001091. And so if you scroll down to the bottom of it, you'll see that a constituent -- you could just scroll -- it was a constituent writing to -- and scroll up, please -- a constituent writing to the councillors and complaining that Windsor Police were doing the same as Ottawa and surrendering control to the protestors. And you'll see the response above that was really twofold, which was firstly, council can't direct the police, and the second point was to tell the constituents that they're misinformed when they think that the police are not doing anything, correct?
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David Migicovsky, Counsel (Ott-OPS)
And it's important for the City to be supporting the police because sometimes, the public doesn’t see what the police is doing and why they are doing or not doing, taking certain enforcement actions; is that your understanding?
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David Migicovsky, Counsel (Ott-OPS)
And another useful lesson you indicated you learned from Ottawa was not to publicly announce the number of officers requested. And I believe, as I understand it, had Ottawa not happened first, you might not have realized that; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Right. And that was something I think the OPP conveyed to you as a result of lessons learned from Ottawa; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And another thing I know - - and we don’t need to turn it up unless you want to see it is, I think another message that was repeated by the City was for councillors not to go on social media, to be very careful what they put on social media, correct?
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David Migicovsky, Counsel (Ott-OPS)
And the blockade -- just finishing off my last point -- the blockade, I think we said, began on February 7th, and we know from your evidence this morning that on February 4th, I believe, you wrote a text -- you sent a text message to Minister Mendicino?
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David Migicovsky, Counsel (Ott-OPS)
So a couple of days in advance. And at that time, you were not considering blocking all access to the bridge in advance because that would ---
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David Migicovsky, Counsel (Ott-OPS)
--- involve many, many access points?
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David Migicovsky, Counsel (Ott-OPS)
Right. And it would require many more resources, obviously, than would be available?
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David Migicovsky, Counsel (Ott-OPS)
And I guess finally, blocking all access would disrupt residents and businesses, obviously, but it could also mean that if you did that, the trucks would spread out over a larger part of Windsor as well; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And that would disrupt even more people?
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David Migicovsky, Counsel (Ott-OPS)
Thanks very much. I have no additional questions.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Deputy Chief Crowley. My name is David Migicovsky. I'm Counsel for the Ottawa Police Service.
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David Migicovsky, Counsel (Ott-OPS)
You served as the Critical Incident Commander during the day shift; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
During the ---
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David Migicovsky, Counsel (Ott-OPS)
--- night shift; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in that regard, am I correct that you had operational autonomy to make necessary decisions under the incident command system?
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David Migicovsky, Counsel (Ott-OPS)
And so you would be operating at the operational level?
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David Migicovsky, Counsel (Ott-OPS)
And the level above you would be the chief at the strategic level?
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David Migicovsky, Counsel (Ott-OPS)
But there’s only one level above you; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so unlike in Ottawa where we had an incident commander, an event commander, and a major incident commander, and then a chief, that wasn’t comparable to the situation in Windsor, was it?
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David Migicovsky, Counsel (Ott-OPS)
And Chief Mizuno and Deputy Bellaire respected your autonomy and didn’t interfere with your operational decisions?
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David Migicovsky, Counsel (Ott-OPS)
And that’s an important aspect of how the incident command system is supposed to work; am I correct?
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David Migicovsky, Counsel (Ott-OPS)
And you shared command with the OPP but that’s because the Windsor Police Service recognized that in an operation of this nature, the OPP obviously had much more experience and expertise than the Windsor Police Service had?
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David Migicovsky, Counsel (Ott-OPS)
Lesson learned from Ottawa, I believe you learned a number of lessons based on what had happened in Ottawa, and these are things that you would not otherwise have known; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And so, in fact, in -- I won’t call up the document but I believe in one of the documents, you talked about benefitting from the hindsight of Ottawa’s -- of enjoying the benefits of the hindsight from Ottawa’s experience, and that impacted how Windsor decided to proceed; correct?
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David Migicovsky, Counsel (Ott-OPS)
And another example of learning from Ottawa was -- I believe we saw in one of the documents -- again I won’t turn it up -- when it came to looking at the message to be given to demonstrators, I think it was a bit of a cut and paste from what Ottawa had done; correct?
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David Migicovsky, Counsel (Ott-OPS)
I can call up the document if that’ll help. It’s WPS00001017. And so you’ll see this is simply a prepared statement if required for future use. It very much mirrors what Ottawa Police put out, and I made very few changes to what they had. And then underneath, if you scroll down, you’ll see that was the message given to demonstrators.
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. You can take that down, thank you. From the outset, as I understand it, Windsor Police Service tried their very best to respect the right to peaceful assembly ---
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David Migicovsky, Counsel (Ott-OPS)
--- keeping lines of communication open ---
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David Migicovsky, Counsel (Ott-OPS)
--- and, very importantly, using police discretion?
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David Migicovsky, Counsel (Ott-OPS)
And using police discretion means sometimes officers need to retreat when crowds get aggressive? In fact, I think you told us an example in which you witnessed that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And just -- I want to just briefly conclude by talking about the intelligence, and I understand that the first Hendon Report that has a possible to a blockade in Windsor was January 31st, but there wasn’t a lot of information about it; correct?
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David Migicovsky, Counsel (Ott-OPS)
You didn’t know numbers. You didn’t know dates. And although I understand -- after that, then, on February 4th, I gather there were some social media reports suggesting a possible blockade but, again, not a lot of information; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I understand that although you had some advance information then about a possible blockade on January 31st to February 4th, the specific operational plan wasn’t in place when the bridge initially shut down on the 7th; correct?
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
And it’s not always possible to be completely prepared in advance; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And so I believe on February 8th, there was a general request, we heard, to the OPP for officers, and that was followed on February 9th with that letter that we saw earlier for the 100 officers, which gave some information, but that didn’t provide a complete plan; was it?
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David Migicovsky, Counsel (Ott-OPS)
And ultimately what was required was -- a POU operation was necessary to end the matter?
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David Migicovsky, Counsel (Ott-OPS)
And that means there’s going to be arrests, there’s going to be criminal charges ---
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David Migicovsky, Counsel (Ott-OPS)
--- and it’s an escalation; correct?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. I have no further questions.
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David Migicovsky, Counsel (Ott-OPS)
Good evening, Mr. Freeman. My name is David Migicovsky; I’m a lawyer for the Ottawa Police Service.
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David Migicovsky, Counsel (Ott-OPS)
You were asked some questions by one of my colleagues earlier about MTO enforcement officers in Ottawa, and I believe you weren’t certain if they were used in Ottawa on the first weekend, so I’m going to see if I can help you. If we could call up, Mr. Clerk, ONT00000272, please? Page 1; at the bottom of page 1. These are situational reports that the MTO puts out. And you’ll see at the bottom of page 1, so this is January 28. This would be the Friday, and we see: “Convoy arrived in Ottawa starting at approximately 1:00....” And it says: “MTO Officers will assist as usual practice if requested by OPP. No current request for assistance.” And so I’ll take you to, then, the one for the following day, which would be the Saturday.
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David Migicovsky, Counsel (Ott-OPS)
And if we go to ONT00000273, please, on page 2. And if you scroll up a little bit, please? No, the other way, I’m sorry; scroll down. Thank you. So you’ll see on January 29th, so that’s the Saturday? “Convoys to arrive...at Parliament Hill....MTO Officers will assist as usual practice if requested by OPP. No current request for assistance.” Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
And so, as I understand it, and so I believe MTO did have enforcement officers there for the subsequent weekends, if I’m not mistaken.
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David Migicovsky, Counsel (Ott-OPS)
Right. In Toronto we know, however, that MTO was asked, in advance of the February 1st convoy arrival to be on the GTA highways, by the OPP, partly as a deterrent and to provide support to the OPP; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so that was in advance; it was the day before, I believe; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And the focus was on the routes going into downtown and the 400-series highways.
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David Migicovsky, Counsel (Ott-OPS)
And that’s because you had the Ottawa experience, so Toronto was treated a bit differently.
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David Migicovsky, Counsel (Ott-OPS)
And it was the OPP who specifically asked ---
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David Migicovsky, Counsel (Ott-OPS)
--- for MTO to be involved. And Ottawa was always expected to be a peaceful event, I believe. That was in the original Operational Plan of the MTO, and the original announcement on January 21st that we saw; correct?
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David Migicovsky, Counsel (Ott-OPS)
MTO, we saw -- I took you to, when I started, the situation reports. And I understand those situation reports came out virtually every day and sometimes a couple of times a day during the convoy?
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David Migicovsky, Counsel (Ott-OPS)
And so you would agree with me -- I’ve looked at the situational reports for January 23 up to January 28th, there’s no reference in them to the convoy causing major problems or to how long they’re going to be in Ottawa; does that record with your recollection?
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David Migicovsky, Counsel (Ott-OPS)
Right. And I won’t call up the documents, but just for the record it is ONT00000260 to 0272. And it is only on January 29th, which is ONT00000273... Mr. Clerk, if we could please turn that up, on page 1? And if we could just scroll down, please? Yeah, sorry; if you can just stop there. Thanks very much. “Information received...” -- so this is January 29th: “Information received that the convoy/protestors may stay in Ottawa for up to a month or longer if their demands are not met.” So that’s on Saturday when the convoy is already there. And so up until then, I did not see it referenced. So I take it it only became relevant on the Saturday when they were already there? Is that right?
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David Migicovsky, Counsel (Ott-OPS)
And if I look at all of the operational updates prior to January 29th, all of them refer tot eh convoy, but don’t note any particular concerns? There’s a heading on those documents called “Operational Updates and Impacts”, and there’s nothing of particular concern raised in any of them? Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Sure. I believe I’ve used my time, Mr. Commissioner. If I might have another just a couple of minutes?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. And I know on January 26th, and I can call it up if you need it, but on the January 26th Operational Update, I saw on page 1, and it was ONT00000267, there’s mention that one of the convoys there is about 135 kilometres length, but there doesn’t seem to be any particular concern noted. Do you recall reading it -- that? It’s actually in the ---
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David Migicovsky, Counsel (Ott-OPS)
--- fourth -- third paragraph, I’m sorry. And there doesn’t seem to be any concern noted? MTO wasn’t trying to stop it on the highway or slow it down or divert it?
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David Migicovsky, Counsel (Ott-OPS)
Sure. In fact, the operational plan of the MTO says officers will not be involved in the commercial vehicle traffic stops of people in the convoy; correct? That was the direction you had from the OPP?
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David Migicovsky, Counsel (Ott-OPS)
And MTO, I believe, says in their plans that they recognize the right to peaceful protest, which is what this was supposed to be; correct?
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David Migicovsky, Counsel (Ott-OPS)
I won’t call it up, but there’s reference to, and I don’t believe you were at the meeting, but there was a tripartite meeting, and it’s SSM- CAN.NSC.00002676. On page 2 of four, one of the issues raised, and I believe it was raised by Mayor Watson, was a request that the MTO, at that point, it was February 10th, get more involved, and noted that the MTO always sets up blitzes on 400 highways, but haven’t done so in this case. Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
No, I’m asking -- yeah, is that statement correct, that the MTO does do blitzes on Highway 400 -- 400 series highways, but did not do so in this case?
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David Migicovsky, Counsel (Ott-OPS)
And sorry, just to finish up, I want to ask you a question regarding weigh scales. And one of the things considered by the MTO was to look at what Quebec did, because they had a convoy as well. And I understand they set up truck inspection stations, but Ontario chose not to do that. is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And the question was raised, and it is ONT00000092, the question was raised about whether weigh scales could be used to slow down the convoy, as was done in Quebec, but a decision was made not to do that in Ontario; correct?
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David Migicovsky, Counsel (Ott-OPS)
And it’s on page 2, actually. Yeah. And I understand that under the Highway Traffic Act, MTO officers may stop vehicles and direct them to weigh stations; correct? You have that authority?
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David Migicovsky, Counsel (Ott-OPS)
And if weigh stations are open, trucks have to stop and be subject to inspection, check for weight, height, length, axles, proper class of license, et cetera?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thanks very much. Those are my questions.
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David Migicovsky, Counsel (Ott-OPS)
Good evening, Mr. Di Tommaso.
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David Migicovsky, Counsel (Ott-OPS)
My name is David Migicovsky. I'm the lawyer for the Ottawa Police Service. I understand that you have some oversight of the OPP that falls within your sphere of responsibility?
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David Migicovsky, Counsel (Ott-OPS)
And in that regard, you received regular reports from Commissioner Carrique?
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David Migicovsky, Counsel (Ott-OPS)
And another person who reported to you was Chris Letang, the provincial security advisor ---
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David Migicovsky, Counsel (Ott-OPS)
--- with the Ministry of the Solicitor General?
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David Migicovsky, Counsel (Ott-OPS)
And I assume he has -- in that position, he obviously has access to intelligence information from the OPP and others?
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David Migicovsky, Counsel (Ott-OPS)
And it's important that he get you reliable information and timely information?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, he did satisfy you in that regard in terms of the information he provided to you?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you were satisfied with the quality of the information he was providing?
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David Migicovsky, Counsel (Ott-OPS)
And so if we could please call up OPP00005099?
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David Migicovsky, Counsel (Ott-OPS)
OPP00005099.
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David Migicovsky, Counsel (Ott-OPS)
It is a report from Chris Letang, the provincial security advisor of January 21st or 22nd, I believe.
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David Migicovsky, Counsel (Ott-OPS)
L-e-t-a-n-g. I'll move on, and in the meantime, if I could ask you instead to call up ONT00005126?
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David Migicovsky, Counsel (Ott-OPS)
That’s a -- one of the reports that Mr. Letang was providing to you, and those were being provided on a regular basis?
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David Migicovsky, Counsel (Ott-OPS)
And so if we could just scroll down to the bottom of page 1, please? You'll see that the report is -- the assessment is currently, "there is no specific identified threat and monitoring remains attuned." And then just below that, you'll see, "Freedom Convoy". If you could just turn to next page, please? And so you'll see that there is reference in those paragraphs to the protest disrupting the movement of vehicular traffic, correct?
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David Migicovsky, Counsel (Ott-OPS)
And the disruption of vehicular traffic is not, in itself, a basis to stop a protest, is it?
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David Migicovsky, Counsel (Ott-OPS)
And some vehicular disruption is obviously going to be expected and tolerated, correct?
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David Migicovsky, Counsel (Ott-OPS)
And if we could look at the third page, please? Page 3, please. Thank you. The second paragraph, at this point, the -- and this is January 25th, just so you're aware -- the second paragraph says that the convoy organizers have repeatedly stated the intention to conduct a lawful protest, and there's a Code of Conduct. Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
And then we see in the next paragraph that the number -- and it's bolded -- that the number of participants and supporters who may participate is unknown at this point?
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David Migicovsky, Counsel (Ott-OPS)
And there's no indication in this report that overall, the convoy will engage in assaultive behaviour or widespread anti-social behaviour or bylaw offences, nothing like that, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And similarly, I didn’t see any indication that the protesters would become a long-term occupation. If we could please go to the next one, which is OPP00005127?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry. Did I not say that?
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David Migicovsky, Counsel (Ott-OPS)
Yes. I apologize for that. Thank you for catching that. And so that’s another report on January 26, and you'll see on page 1, if we just scroll down, the first paragraph. Again, there's no specific identified threat, correct?
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David Migicovsky, Counsel (Ott-OPS)
And if you look at the first bullet under "National Convoy" ---
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David Migicovsky, Counsel (Ott-OPS)
--- you'll see that an accurate estimate was complicated by the number of non-convoy vehicles in the area, correct?
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David Migicovsky, Counsel (Ott-OPS)
And if you go to page 2 and you go to the first bullet on page 2, you'll see the last sentence, "The organizers have repeatedly continued to urge for a peaceful demonstration"?
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David Migicovsky, Counsel (Ott-OPS)
The last sentence in the first bullet.
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David Migicovsky, Counsel (Ott-OPS)
And if we go to page 3 under the assessment, if you could just scroll up, please? Oh, sorry, assessment starts on page 2 and then if you go to page 3, the third paragraph, again, no identified threat with regard to the Freedom Convoy protest, and there's no reference at this point to the convoy staying long term and becoming an occupation, is it?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so the 27th is, in fact, the day before they arrived, correct? That’s on the Thursday ---
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David Migicovsky, Counsel (Ott-OPS)
--- and the convoy is arriving on the Friday, correct?
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David Migicovsky, Counsel (Ott-OPS)
That’s okay. I'll move on. And you're aware that many of the convoy were travelling on 400 series highways policed by the OPP?
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David Migicovsky, Counsel (Ott-OPS)
And there was, you're aware, no direction given or any discussion with the OPP about whether to divert them or stop them from coming into Ottawa, based on the information that was available at the time, correct?
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David Migicovsky, Counsel (Ott-OPS)
And if we go to ONT00005126, which is Mr. Letang's report that we previously looked at of January 25th, on page 2, third bullet, you'll see that reports from RCMP in Manitoba indicate the convoy participants were upset as a result of having been directed to weigh scales and having been issued HTA infractions, and some online messaging suggested those were an intentional tactic by police to disrupt the protest. And so OPP information is that the weigh scales in Ontario will be closed, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so Ontario wasn’t trying to disrupt the convoy's arrival, and in fact, the OPP actually ushered them into Ottawa, did they not?
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David Migicovsky, Counsel (Ott-OPS)
And if we could please go to ONT00005303? That is a series of text messages from Commissioner Carrique to you. And I'm just giving you that page to see that it's January 29th, so that would be on the Saturday?
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David Migicovsky, Counsel (Ott-OPS)
And then if you scroll down to the bottom of that page and then go up to the -- you'll see the -- then go to the next one, which is ONT5304. I simply gave you that so you would see the date. So please go to ONT00005304. And if you go to the fifth bullet? And so this is the report you're getting on the 29th from Commissioner Carrique, and he's now telling you that a number of demonstrators are planning to remain until the 31st of January, so that’s the Monday, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you agree with me that the information you're getting from the provincial security advisor does not forecast what turned out to become an occupation for three weeks in Ottawa with the kind of behaviour that we ultimately saw, correct?
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David Migicovsky, Counsel (Ott-OPS)
Well, let's go and look at that assessment on the 27th, please. It's ONT00005128. And if you go to the assessment section on page 3? So what we see is - - and this is, bear in mind the 27th, so it's the Thursday -- so what we see is, the second sentence: "Once in Ottawa, some convoy organizers have stated an intent to remain at Parliament Hill until the federal government concedes to repeal all COVID health restrictions and mandates." Correct?
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David Migicovsky, Counsel (Ott-OPS)
So we don’t see any indication of the number, how many, correct?
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David Migicovsky, Counsel (Ott-OPS)
And we also don’t see any indication that they're going to engage in the kind of behaviour that they ultimately did engage in, correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Of an unknown number of people, correct?
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David Migicovsky, Counsel (Ott-OPS)
Well, you're aware, sir, that Parliament continued to sit. The municipal government continued to operate throughout that period, correct?
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David Migicovsky, Counsel (Ott-OPS)
Another office in the provincial government that monitored both Ottawa, Toronto, Windsor, was the Emergency Management Office?
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David Migicovsky, Counsel (Ott-OPS)
And I understand from January 28th to February 21st, they produced multiple briefing notes every day and sometimes multiple times a day?
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David Migicovsky, Counsel (Ott-OPS)
I think I've got two more minutes.
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David Migicovsky, Counsel (Ott-OPS)
You would agree with me, I take it, Mr. Di Tommaso, that if trucks -- if the convoy was coming in or if there we're trucks on the 400 series of highways in which there was information that the OPP had that there were bombs and that those bombs were going to be detonated in Ottawa, you would expect that the OPP would do something to stop those convoys from coming into the city, correct?
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David Migicovsky, Counsel (Ott-OPS)
I appreciate that. I'm giving you a hypothetical. If you had such information, presumably, as the person who has oversight, who has some oversight, you'd be concerned if the OPP allowed those vehicles to come into the city?
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David Migicovsky, Counsel (Ott-OPS)
And similarly, you would expect that if the OPP had knowledge that the convoy was going to engage in the kind of disruptive and anti-social behaviour they did engage in, you would have expected that they would not have allowed in, to come into Ottawa, fair?
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David Migicovsky, Counsel (Ott-OPS)
And so you would not have expected that they would stop the convoy?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. I have no additional questions.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, or good afternoon, Commissioner Lucki, and Deputy Commissioner Duheme. My name is David Migicovsky and I’m a lawyer with the Ottawa Police Service. Commissioner, if I can start with you, you were on record as saying that you do not view the invocation of the Emergencies Act as a failure of policing. Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
That you’re on record as saying, “I do not view the invocation of the Emergencies Act as a failure of policing”?
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David Migicovsky, Counsel (Ott-OPS)
Yeah. You’ll agree with that. And that’s because, as I understand it, this was a very unique and fluid situation and what happened in Ottawa was very different from what was seen across the country; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I also understand, Commissioner, that you are a trained POU commander?
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David Migicovsky, Counsel (Ott-OPS)
And although you have a very lengthy history in law enforcement, I think this was the first time you saw a protest such as this one as well?
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David Migicovsky, Counsel (Ott-OPS)
Is that right?
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David Migicovsky, Counsel (Ott-OPS)
In one of your key message updates, and I won’t turn it up, but I don’t think it’s contentious, but it was your February 3rd key message update. You talked about the convoys returning for the weekend, which we know was a phenomena that occurred, and there was a discussion of farm equipment. And you said at the time, “Look, there’s no bar on farm equipment from coming into the city,” and that there had been convoys in the past with farm equipment downtown in Ottawa in the past; correct?
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David Migicovsky, Counsel (Ott-OPS)
Deputy Duheme, I understand that the NRCC -- or the NCRCC, I apologize, was stood up for this event; correct?
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David Migicovsky, Counsel (Ott-OPS)
And the RCMP was part of that NCRCC?
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David Migicovsky, Counsel (Ott-OPS)
And it is used as a hub for intelligence that goes on for the event?
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David Migicovsky, Counsel (Ott-OPS)
But included within that, I believe, was a hub for intelligence?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Commissioner Lucki, my understanding is that the RCMP followed the convoys across the country and in fact provided on the ground information to the OPP when the convoy crossed from Manitoba into Ontario?
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David Migicovsky, Counsel (Ott-OPS)
And that information then was funneled through a JIG, a Joint Intelligence Group?
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David Migicovsky, Counsel (Ott-OPS)
And Deputy Duheme, you indicated, I believe, in your witness statement, that the OPS had the same intelligence as the RCMP; correct?
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David Migicovsky, Counsel (Ott-OPS)
And I believe you also indicated, Deputy, in your witness statement, that when it became clear that the convoy was coming to Ottawa, police agencies began to share intelligence, including that through Project Hendon; correct?
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David Migicovsky, Counsel (Ott-OPS)
Commissioner, you were -- and both of you, I guess, were part of a panel that was interviewed by the Commission, and I think there were several of your colleagues that joined you, Deputy Commissioner MacDonald, Deputy Commissioner Zablocki, Deputy Commissioner Brennan, and Liam Price, the Director General; correct?
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David Migicovsky, Counsel (Ott-OPS)
And there was a discussion with your colleagues, I see in that summary, about the social media messaging of the convoy and the statement to the effect that there was some social media messaging saying that they wouldn’t leave until the mandates were lifted, and Deputy commissioner Brennan stated that the RCMP had concerns about the reliability of that messaging because many protest groups use social media messaging as a diversion. And you didn’t disagree with that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you didn’t disagree when he said that; did you?
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David Migicovsky, Counsel (Ott-OPS)
In fact, you said, in response, that there were different groups here as part of the convoy and they were not all on the same page; ---
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David Migicovsky, Counsel (Ott-OPS)
--- correct?
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David Migicovsky, Counsel (Ott-OPS)
I believe, Commissioner Lucki and Deputy Commissioner Duheme, you both expected, you indicated in the witness summary, that some protestors might stay in Ottawa until the Monday, January 31st, which is when Parliament was returning to session; correct?
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David Migicovsky, Counsel (Ott-OPS)
And initially, and I can take you to the document if it’s necessary, but there was a PCO call on January -- actually, it might be helpful if we turn up the document. Mr. Clerk, it is SSM.CAN.NSC.00002591. And if we could please go to the first page? And if you’ll see the third bullet under “4 lanes of work”, “Peaceful Event”. Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
And if you -- sorry, actually, if you go down to the third large bullet, where it says “Non-threat”? Just underneath that. Yes. “Sgt at Arms, PPS, OPS, RCMP, all seeing peaceful event, no indications otherwise but watching the chatter”. Correct? And that reflects what you knew at the time?
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David Migicovsky, Counsel (Ott-OPS)
Sure. If we can go up to the top? I believe it was January 27th.
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you. Yeah, so it’s -- again, if we can just scroll down again? And if we can go to the second page? So this would be the evening of the 26th. So if we can go to page 2? The first bullet you’ll see just at the top: “Blocking of intersections - protestors say they’re not going to do that, but it’s a lot of cars” Which is what you understood at the time as well? They were not planning to block intersections?
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry?
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David Migicovsky, Counsel (Ott-OPS)
Yes.
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry?
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David Migicovsky, Counsel (Ott-OPS)
That’s correct. But based on what you knew on the 26th in the evening, you understood that they were not planning on blocking intersections?
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David Migicovsky, Counsel (Ott-OPS)
Correct.
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David Migicovsky, Counsel (Ott-OPS)
Okay. Are you disagreeing with it or you simply don’t know?
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David Migicovsky, Counsel (Ott-OPS)
Okay. You have no information to suggest at that point in time that the protestors were planning to block intersections? Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Right. Thank you very much. And I believe, again I can turn up the document, Commissioner, but I understand that as of just a couple days before the demonstration, there was some discussion at the RCMP about it was unknown how long they were saying, but there was some social media saying that they might stay until January 31st, which would be the Monday when Parliament was supposed to resume session; correct?
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David Migicovsky, Counsel (Ott-OPS)
I can show you the document if you want, Deputy, unless you’re ---
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David Migicovsky, Counsel (Ott-OPS)
Okay.
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David Migicovsky, Counsel (Ott-OPS)
Okay. So just for the records, it’s PB.NSC.CAN00008069, which I believe was the 25th, which is a -- or indicated that some social media were saying that they would stay until January 31st. And if you -- you will see if you go to the bottom of this email -- you’ll have to go to the third page and then -- just so you can see what it is. Yeah. So you’ll see it’s something that was sent to you, “Hi, Brenda. He just shot me these questions.” And then if we go above it, you’ll see you asked for some bullet points, and you’ll see, “Anything you can give me would be great.” And then you get some information in response. So this is January 28th.
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David Migicovsky, Counsel (Ott-OPS)
And so you’ll see question 3(a) at the bottom was “Latest on what if scenarios”. “What if truckers leave vehicles parked on Wellington beyond Saturday?” and a series of other questions you’re asked about, “What if it turns violent?”, et cetera. And so if you go up to the first page, you see the answers to those questions. So you’ll see -- sorry. If you could just go to 3(a) at the bottom, OPS -- I’m just on the third line: “OPS has reached out to the hotel industry in the NCR who have confirmed that accommodations are fully booked through the weekend but appear back to normal as of 22/01/31.” So as of the Monday; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so OPS, it sounds like, was saying that they checked the hotels. Contrary to some other evidence that we’ve heard, they’re reporting that, in fact, the hotels are back to normal on Monday; correct?
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David Migicovsky, Counsel (Ott-OPS)
And then if we look at the (c), if we go to the next page, in the event that the protests turn violent, then there’s a POU team available. The OPS has one. OPP has two POU teams. I believe Toronto was there. And some of the other municipal police services were there that weekend as well with the POU team in case; correct?
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David Migicovsky, Counsel (Ott-OPS)
And fortunately, those were not needed. And then if you go down to just below the redaction, we see that OPS and OPP PLT are continuing to work closely with the organizers of the event. And it says, “Collaboration between all security partners in the NCR remains strong.” And that would include the RCMP as one of the security partners; correct?
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David Migicovsky, Counsel (Ott-OPS)
Deputy Duheme, I know that on January 30th, if we could please turn to PB.NSC.CAN00000033, you’ll see on the January 30th intel update -- this is an RCMP update. “OPP PLT are now reporting -- have reported chatter that the end date of the event could be February 2nd”; correct? So that would be the Wednesday?
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David Migicovsky, Counsel (Ott-OPS)
You would agree with me there were, obviously, very many trucks on the streets and some of them we know travelled great distances to get to Ottawa; correct?
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David Migicovsky, Counsel (Ott-OPS)
And one of the things we’ve heard from various police witnesses and law enforcement officials in this inquiry is a certain -- a concern about taking actions which can inflame a crowd and cause danger and the need, sometimes, for police to show some restraint at the time. And that, as I understand it, is a standard practice in policing?
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David Migicovsky, Counsel (Ott-OPS)
Sure. And so if I can ask you -- I just want to get your reaction to this. If we can call up PB.NSC.CAN00001154. And it’s page 7. Commissioner, I wonder if I might have an extra five minutes.
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David Migicovsky, Counsel (Ott-OPS)
Thank you. And so if we can please go to page 7, the second- to-last bullet. I want to get your reaction. Open sources are -- this is -- did not occur, but open source reports are suggesting police are setting up roadblocks outside Ottawa and such reports seem to fuel some truckers’ agitation. And so you see that can cause -- you can see how something like that can fuel truckers’ aggression if they believe that; correct?
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David Migicovsky, Counsel (Ott-OPS)
I’m just asking to just get your reaction to the statement.
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David Migicovsky, Counsel (Ott-OPS)
Sure. And I also saw there was an email, and it’s ONT5099, from the provincial security advisor. And one of the things he noted at that time under his assessment, he referred to the possibility of police stopping trucks from entering the city and noted that that could result in increased support or participation for the convoy. Does that make sense to you as well, Deputy?
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David Migicovsky, Counsel (Ott-OPS)
Okay. You would agree with me that it could be a risk and it could inflame the crowd; correct?
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David Migicovsky, Counsel (Ott-OPS)
The RCMP, you told us, was part of INTERSECT and was also part of the NCRCC and, in that context, would have access to the OPS traffic plan; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you’re aware that the plans -- that the traffic plan and the instructions that were sent out to the convoy participants clearly showed that there would be some convoy staging areas on Wellington; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. You’re not disagreeing, though, that that information was available to the RCMP just as it was to the convoy organizers and it showed that there would be some staging of vehicles on Wellington; correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. If I can just ask you now to go to PB.NSC.CAN.00002476. And just while that's being called up, Deputy Duheme, in your joint witness statement on page 10, the second last paragraph, you talked about a call on January 31st, where OPS stated that it wanted to launch aggressive enforcement between January -- between February 4th and 6th, and you felt that they didn't have the resources or the plans to support that. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And the concern about enforcement, I'll show you this document, is on February 9th, if we go to the second page, there is the -- there is -- actually, I guess if you start at the first page. So you'll see, just so that you can see where we are... Just if we could go up, please. Yeah. So you'll see under background: "...February 8th, RCMP were advised that the OPP was attending Ottawa to assist..." Then third bullet: "February 9, OPP...and RCMP Supt. Lue attended to OPS...to assist in the development of [a]...plan." And then the -- at one o'clock, at 1300, there was a concept document that was provided. And then if you scroll down, and then go to the following page. You'll see just at the top. And so this is again the concern about taking enforcement action when it may not be appropriate. And it says: "Continuing in the meeting, with less than 24hr notice to partners and against the advice from the RCMP and OPP, the OPS Chief announced that Enforcement action was to take place on Feb 10 beginning at 6:00." And then it set out what it was. And then current situation, you see that it was then delayed, there was no kinetic plan. And so under the analysis, we see RCMP expressing concern about it not being a viable plan. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
And I guess ---
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David Migicovsky, Counsel (Ott-OPS)
Thank you. I'll just finish off. I guess that concern about the absent -- about taking action before there's enough -- before there's a full plan and the absence of a plan was something that I continued to see, Deputy Duheme and Commissioner Lucki, in both of your notes where you throughout your key message reference there isn't a viable plan here up until the very end when the integrated cell becomes involved. Is that correct?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Certainly you reported at your key message meetings, and I don't have time to turn it up, but the documents are in the record, that you reported that there was no plan that you were aware of and it was never shared with you.
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David Migicovsky, Counsel (Ott-OPS)
And you did as well, Deputy?
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David Migicovsky, Counsel (Ott-OPS)
And it's in your notes as well?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. I do have more questions, but I am out of time. Thank you very much.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Ms. Thomas. My name is David Migicovsky and I’m counsel to the Ottawa Police Service. I understand that as the -- I’ll use the acronyms because it’s shorter -- as the NSIA, it’s your job to assess information, and to advise the prime minister, and to coordinate the flow of intelligence and information from federal agencies to the prime minister and to Privy Council; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And in looking through the documents -- and I’m happy to call it up if it’s necessary, but I don’t think it’s contentious -- there’s a message from Zita Astravas to Bill Blair, I believe. Are you familiar with Zita Astravas?
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David Migicovsky, Counsel (Ott-OPS)
And is that his chief of staff?
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David Migicovsky, Counsel (Ott-OPS)
And so I think what she indicates -- and this is on January 25th -- is that the ADMs are meeting on the trucker convoy, and then she says that the NSIA is proactively engaged in Hill security and that INTERSECT will be holding a call on January 27th; do you agree with that?
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David Migicovsky, Counsel (Ott-OPS)
And then, if we could call up, Mr. Clerk, PB.NAC.CAN.00000577, there is a report on Jan 27th in which you asked for an update; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And in that report, if we just look at the first paragraph -- or the second paragraph, it indicated that all key stakeholders -- so that includes the RCMP, the OPP, OPS, PPS, various other entities -- are actively planning and collaborating to ensure public safety; you’d agree with that?
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David Migicovsky, Counsel (Ott-OPS)
And then the second paragraph, we see that it is also -- it’s planned to be a peaceful demonstration; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
And -- you can take that down, thank you very much. And I understand there was an ITAC Report on January 26th. And again, I won’t turn it up unless you need to see it, but it ES. NSC.CAN00000156. That ITAC report notes that the majority of the trucks are exercising -- the truckers are exercising their right to peaceful protest; is that right?
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David Migicovsky, Counsel (Ott-OPS)
And then there is another ITAC report, I believe, the following day which is PB.CAN00001237, and it indicates at that point -- so this is January 27th -- that a dedicated group could prolong that protest until January 31st. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And it's still, however, expected to be peaceful although recognizing that some extreme views of a vocal minority are on social media advocating, correct?
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David Migicovsky, Counsel (Ott-OPS)
And then there is an INTERSECT meeting on January 27th, so the OPP, RCMP, PPS. INTERSECT's purpose is to collaborate on emergency preparedness and to provide situational awareness?
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David Migicovsky, Counsel (Ott-OPS)
And so I could turn up the report if you need to see it, but I see in that INTERSECT report -- and maybe you can confirm -- that we do see in that report that the plan is the trucks are going to be on Kent Street, they're going to be on Metcalfe, they're going to be on Wellington. You were aware of that from the INTERSECT report?
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David Migicovsky, Counsel (Ott-OPS)
In a memo you received on January 28th, you again expressed -- and I guess this is on the Friday -- that the organizers of the protest had at that point expressed the intent for a peaceful event, correct?
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David Migicovsky, Counsel (Ott-OPS)
It was expressed to you, I'm sorry.
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David Migicovsky, Counsel (Ott-OPS)
And on January 26th, so going back two days previously, Mr. MacDonald -- Mr. MacDonald reports to you; is that correct?
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David Migicovsky, Counsel (Ott-OPS)
He indicated to you that the -- in terms of public communication, that public communication was taking its cues from the prime minister and emphasizing the lawful nature of the protest?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so there'd be no basis at that point for law enforcement to stop the protest at that stage, correct?
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David Migicovsky, Counsel (Ott-OPS)
And on February 1st, you gave a talk to something called "Canada and the World's Committee"?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And I see at that talk which was on February 1st, that even though you indicate there's some disturbing behaviour that you've now seen, you noted that the protest had largely remained peaceful and that all levels of law enforcement had worked together with federal officials to ensure planning for a safe protest, and that National Security would continue to work closely with law enforcement; is that right?
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David Migicovsky, Counsel (Ott-OPS)
I want to move on and talk about negotiation and de-escalation as a method of resolving protests and demonstrations. And the Commission took you to a memo from Mike MacDonald to you, and in that memo the question was asked -- and this was on January 25th -- as to what MPs -- as to whether MPs should meet with the convoy while in Ottawa and whether it was safe and if there was advice for them. Do you remember that memo?
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David Migicovsky, Counsel (Ott-OPS)
And that question wasn’t answered at that time as to whether MPs should meet with them, correct?
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David Migicovsky, Counsel (Ott-OPS)
And you would agree with me that sometimes enforcement action can have undesirable results, correct?
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David Migicovsky, Counsel (Ott-OPS)
If we could turn up SSM.NSC.CAN00000292, and if we could turn to page 5? That was the Cabinet, the SSE meeting?
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David Migicovsky, Counsel (Ott-OPS)
And so you'll see on page 5, number 6 if we scroll down -- yes, thanks very much -- you'll see it was brought to your attention -- this is on February 3rd -- that the Ottawa Police said that they could not bring the protest to a conclusion without the assistance of the federal government due to public safety concerns and risks, that enforcement would provoke some protesters, correct?
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David Migicovsky, Counsel (Ott-OPS)
And at that meeting, on page 6 then, item 4, you had indicated that the protest organizations had indicated an interest in negotiations but no one had reached out to them, correct?
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David Migicovsky, Counsel (Ott-OPS)
And then on page 8, there was a chart with a list of various options, and one of the things we see in the third box on the left-hand side is engagement with protesters, and the question of a dedicated minister. So this is on February 3rd that’s raised, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
Right, to engage with them. And then if we go then to the February 6th SSE meeting -- and again, I won't turn it up in the interests of time, but if you need it, do let me know -- I see at the February 6th meeting there's a reference to the deputy minister reiterating the views of provincial colleagues that negotiation is the preferred option for resolution. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And you participated then in a call with the City and the federal officials of the -- and Chief Sloly that the Commission took you to earlier this afternoon, and there was a discussion about negotiation resolving the situation at Confederation Park rather than going tactical. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
And you expressed enthusiasm that a tactical takedown was avoided by negotiations, correct?
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David Migicovsky, Counsel (Ott-OPS)
And the Commission took you to your talking points on February 8th, and one of -- I see at -- in those talking points that the mayor of Ottawa had requested that the prime minister of Canada appoint a mediator. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And when I looked at the IRG minutes of February 10th, I saw that Public Safety Canada reported on a conversation with the lead OPP negotiators that raised the possibility of the protesters leaving and denouncing the blockades in exchange for a commitment to register their message with the government. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And that came up again, I think I saw, at the IRG in the tracker of February 12th. In fact, you're shown as the lead to engage a federal interlocutor under -- at that meeting, correct?
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David Migicovsky, Counsel (Ott-OPS)
I just need another three minutes, I believe, to finish off this point?
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David Migicovsky, Counsel (Ott-OPS)
I'm doing my best. And so you indicated that there wasn’t an interlocutor. And one of the things that you mentioned to my friends earlier this afternoon was that the negotiations in Windsor had failed, correct?
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David Migicovsky, Counsel (Ott-OPS)
And when I looked at the document -- and I won't take you up to it, but it is PB.NSC.CAN00002963, I see that Deputy Minister Stewart at that time told Mr. Mendicino that it failed in Windsor because it was given to them late at night and the enforcement was starting the next morning, correct?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
And so I just want to take you to one last document. And it was a timeline that had been provided by, I believe it would have been prepared by DOJ. Do you recall that timeline?
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David Migicovsky, Counsel (Ott-OPS)
And so when I looked at that timeline, there was a space on it for meetings. And I’ll show you the timeline, just to make it easier. It’s PB.NSC.CAN. -- I’m sorry, it’s -- I’m sorry, I’m giving you the wrong document number for the timeline. The timeline had two columns on it, and it had a column that said “Meetings” and then it had “Federal Decisions”. Do you remember that?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And when I -- if you -- when I looked at that document, and it started prior to the convoy and it went right up until past the emergency. And what I saw on the right-hand side was lots of meetings, dozens of meetings with various committees. But when I looked at the -- and you’d agree that that occurred?
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David Migicovsky, Counsel (Ott-OPS)
And when I looked a the column that said “Federal decisions”, page 1 to 21, although there were dozens and dozens of meetings and suggestions about a federal mediator or negotiator, none of that ever happened and the only federal decisions that took place from the start of the convoy to February 14th, were on January 28th, government buildings were locked down, the airspace over Parliament on January 29th was closed, and on January 29th, a request by Ottawa Police to use a parking lot at Cartier Drill Hall was approved, and on February 3rd, a request for RCMP resources was approved. And that’s it until the Emergencies Act?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so the one thing that the protestors wanted was a meeting with somebody in the Federal Government. They have that meeting in this process, but they never got that meeting before passing the Emergencies Act? Is that right?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you very much. Those are my questions.
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David Migicovsky, Counsel (Ott-OPS)
Good morning, Ms. Bogden, Mr. Hutchinson. My name ---
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David Migicovsky, Counsel (Ott-OPS)
--- is David Migicovsky. I'm a lawyer for the Ottawa Police Service. I just have a couple of questions for you. Ms. Bogden, I'll direct these to you. You were taken to a document on February 9th dealing with the assessment of the request from the City of Ottawa to the Governments of Ontario and Quebec for the 1,800 resources. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
Right. And a passage was read out to you that -- indicating that there was strong reluctance to commit without some details as to how the resources were going to be used. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
My understanding is that that -- apart from that meeting that comment was made on several other occasions as well in the days leading up to the Emergency Act. Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Right. And in particular, I know that you may or may not be aware of it, it came up in a conversation between Minister Blair and Deputy Minister Stewart on February 7th. I don’t know if you were made aware of that call or meeting.
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David Migicovsky, Counsel (Ott-OPS)
No, it wasn’t. And it wasn’t a meeting, I don’t think, that you were at, so I wasn’t certain if you were aware.
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David Migicovsky, Counsel (Ott-OPS)
And I think the comment was also in a document -- I don’t think you were taken to that specific passage, but I believe the comment also appeared in the February 9th email in which you specifically noted to your colleague a need for more information on the outline of the OPS enforcement plans. Do you recall that? That was in the document that your -- that the Commission counsel took you to this morning, an email on February 9th.
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David Migicovsky, Counsel (Ott-OPS)
Right. And so you were just made aware of that; correct?
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David Migicovsky, Counsel (Ott-OPS)
And were you aware on February 13th that there was an operational plan that had been prepared by the Integrated Planning cell, which included representatives from OPS, OPP and RCMP and others?
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David Migicovsky, Counsel (Ott-OPS)
Thanks. And just one other area I just wanted to touch on was you talked about the issue of the engagement with the protestors as something that had been considered. And Ms. Bogden, you referenced it being unsuccessful in Windsor; correct? If I could just ask you, please, to turn up PBNSC.CAN.00002963? And if you’d just look at the first bullet in that email: “Ontario sent a letter to the OPP Commissioner last night which was physically shared with protestors. The letter was signed by Minister Jones and committed to a meeting with protestors at a time and place of her choosing. There were no other conditions. Owing to the late hour, the letter did not have much effect and enforcement is proceeding today.” So that’s what happened in Windsor; correct?
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David Migicovsky, Counsel (Ott-OPS)
Right.
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David Migicovsky, Counsel (Ott-OPS)
That was by the provincial government ---
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David Migicovsky, Counsel (Ott-OPS)
--- you understand; correct?
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David Migicovsky, Counsel (Ott-OPS)
Not by the federal.
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David Migicovsky, Counsel (Ott-OPS)
There had been a request by Chief Sloly to have an interlocutor appointed by the federal government, but that was not pursued; correct?
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David Migicovsky, Counsel (Ott-OPS)
Sure. And sorry, the one final question, and I’ll just show you the document, is SSM.CAN00000148. Is a -- and so it starts on January 14th. It’s a timeline and you’ll see there’s a column “Significant developments”, “Federal decisions”, then “Meetings” and so it goes all the way down to -- page 21 takes us to the Prime Minister invoking the Emergencies Act on February 14th. And I will not see in the column of “Federal decisions” any engagement by the federal government with the protestors. Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you very much. I have no additional questions.
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David Migicovsky, Counsel (Ott-OPS)
Thank you.
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David Migicovsky, Counsel (Ott-OPS)
Yes, we have no questions, thank you.
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David Migicovsky, Counsel (Ott-OPS)
I’ll even cede him my five minutes.
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon, Minister Blair. My name is David Migicovsky, and I'm counsel for the Ottawa Police Service. One of the things I gather you know from your long experience as the Chief of Police is how important an Operational Plan is. Is that right?
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David Migicovsky, Counsel (Ott-OPS)
And in order to have an Operational Plan to end the type of event that occurred in Ottawa, you'd agree with me it would be necessary for the police to draw upon subject matter experts?
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David Migicovsky, Counsel (Ott-OPS)
And you wouldn't be critical I take it if the police needed to drawn upon resources outside their own service, whether that be other Ontario services, the OPP, the RCMP, et cetera?
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David Migicovsky, Counsel (Ott-OPS)
And that might take a bit of time to assemble such a team. Fair enough?
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David Migicovsky, Counsel (Ott-OPS)
You participated in a meeting with, and you may have had more than one I believe, with Mayor Watson and Minister Mendicino, I believe Mr. Kanellakos, Deputy Minister Stewart, and at the time OPS and the City had made a request for more police resources. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And you indicated at that meeting that it may be necessary to look at the matter of information-sharing around the allocation of resources, because fair enough, you'd want to know what are you going to do with those resources; correct?
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David Migicovsky, Counsel (Ott-OPS)
And one of the things Deputy Chief Bell said at the time was that the OPP were asking for the same thing, and then Minister Mendicino said: "We need to know from the Chief what the plan is with the appropriate boundaries on operational independence, how is the convoy being broken up and disengaged." (As read) And then he added, "We need to know the plan." And I take it you would agree with that?
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David Migicovsky, Counsel (Ott-OPS)
Right. So your -- what you needed was the RCMP and the OPP to say they were satisfied with the Operational Plans?
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David Migicovsky, Counsel (Ott-OPS)
And the subject of the Ottawa Police Service not having a fully-developed Operational Plan came up several times during the period prior to the Emergencies Act invocation. Is that right?
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David Migicovsky, Counsel (Ott-OPS)
Right. One of the comments I see that was made, and this may sound familiar, was when they showed up, there was no OP Org - or let me turn to the document. Mr. Clerk, if you could please turn up SSM.CAN.NS.00002674 [sic], and if you could turn to the first page of that, please. And so this is from Ms. Astravas, and in it -- that's your Chief of Staff; correct?
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David Migicovsky, Counsel (Ott-OPS)
And so she indicates there's an Operational Update as to what the RCMP were reporting: "RCMP: integrated planning cell was set up to assess OPS operational plan. I do have concern. Strategic tactical planners, OPP, OPS, RCMP were identified to be part of that planning cell to review, challenge and provide plan. When they showed up there was no plan to review. Sloly later verbally shared Plan, was not taking feedback or challenge. No open discussion on way forward." And I take it, Minister, if those statements are true those actions by the Chief would be problematic. Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, in text messages with your Chief of Staff, one of the things we see that you saying is: "We still need to fairly clarify what is he going to do with these resources? If it's just more inaction, the OPP and other Ontario Police Services will sit this one out." (As read) Do you recall that exchange?
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David Migicovsky, Counsel (Ott-OPS)
And in another email exchange with your Chief of Staff, you also indicated, and that was the one I think that Mr. Miller just took you to: "As long as the City and the police refuse to do anything, no progress will be possible." (As read) Correct?
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David Migicovsky, Counsel (Ott-OPS)
You talked about the importance of communication with the protesters and the style of communication. I take it you wouldn't disagree with me that equally a Chief of Police needs to have the ability to communicate effectively with those in his or her organisation?
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David Migicovsky, Counsel (Ott-OPS)
And as Chief of Police, it would be important to respect those below the Chief in the chain of command?
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David Migicovsky, Counsel (Ott-OPS)
And you would not condone a Chief of Police telling his Command that if they didn't support his plan he will crush them?
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David Migicovsky, Counsel (Ott-OPS)
And you wouldn't take -- you understand that the RCMP and the OPP were asking for information on Operational Plans, and you indicated that that would make sense that they'd want that information if they're sending a thousand more officers; correct?
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David Migicovsky, Counsel (Ott-OPS)
And you wouldn't take that as evidence that the RCMP wanted to see the OPS fail or that they were serving their political masters. That wouldn't be the message you'd want for a Chief to deliver to his or her Command Team, would it?
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David Migicovsky, Counsel (Ott-OPS)
You indicated that you attended the IRG meeting, I believe all of them; correct?
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David Migicovsky, Counsel (Ott-OPS)
And one of the things I note at the February 12th IRG meeting was the Commissioner of the RCMP advised that there continued to be challenges working with the Integrated Planning Team in Ottawa around communication and, it says decisively, I assume it's a typo, communication and decisiveness of the OPS Chief. You heard her make that comment; correct?
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David Migicovsky, Counsel (Ott-OPS)
And that did not come as a complete surprise to you, did it?
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David Migicovsky, Counsel (Ott-OPS)
You understood that ultimately the Integrated Planning Team did come up with a plan that was very successfully executed?
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David Migicovsky, Counsel (Ott-OPS)
And that team only came together about -- on or about February 9th, and a plan was then signed off on February 13th.
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David Migicovsky, Counsel (Ott-OPS)
And you also attended the February 13th Cabinet meeting?
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David Migicovsky, Counsel (Ott-OPS)
And at that meeting, it was reported that there was potential for a breakthrough in Ottawa, correct? I can pull up the document if you need to see it.
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David Migicovsky, Counsel (Ott-OPS)
Okay. The document is SSM.NSC.CAN00000216, and it's on page 8. And I believe it's six lines up from the bottom. "With respect to recent actions, the National Security and Intelligence Advisor indicated that law enforcement gains have been important and that there was potential for a breakthrough in Ottawa, Ontario." Do you see that?
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David Migicovsky, Counsel (Ott-OPS)
And you understand that the breakthrough was that there was now an integrated operational plan, correct?
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David Migicovsky, Counsel (Ott-OPS)
And finally, if I may just have two minutes, left, Commissioner, I was hoping not to have to go to the document, so that used a bit of time, but I will be very quick.
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David Migicovsky, Counsel (Ott-OPS)
You had certain frustrations with Chief Sloly, and there's a text message exchange with your chief of staff where you refer to your frustrations with Chief Sloly, "Which is an internal issue we need to be met that needs to managed." Do you know that text message exchange?
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David Migicovsky, Counsel (Ott-OPS)
Okay. It's SSM.NSC.CAN.00003014. So it says: "Individuals have relayed your frustrations with OPS Sloly which is an internal issue we need to manage. I assured them that Mendicino has been working with the RCMP. I've relayed this conversation to NSIA PMO and Mendicino Chief of Staff."
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David Migicovsky, Counsel (Ott-OPS)
And ultimately, just to finish off, you had an email -- a text message exchange with Senator Vern White?
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David Migicovsky, Counsel (Ott-OPS)
Senator White was the former Chief of Police of Ottawa?
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David Migicovsky, Counsel (Ott-OPS)
And he expressed the view that Chief Sloly had not done his job, and you didn’t disagree with that in that exchange, did you?
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David Migicovsky, Counsel (Ott-OPS)
And when you stated that the police response was inexplicable, that was after the actions on phase and you indicated at that point that the police then had redeemed themselves by ---
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David Migicovsky, Counsel (Ott-OPS)
--- correct?
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David Migicovsky, Counsel (Ott-OPS)
And ultimately, they redeemed themselves, correct?
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David Migicovsky, Counsel (Ott-OPS)
Thank you very much. Those ---
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David Migicovsky, Counsel (Ott-OPS)
Good evening. My name is David Migicovsky. I’m a lawyer for Ottawa Police Service. Ms. Telford, my questions, at least initially, will be directed to you. I understand that the PMO relies on the RCMP?
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David Migicovsky, Counsel (Ott-OPS)
I guess the PMO relies on the RCMP to protect the Prime Minister and others?
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David Migicovsky, Counsel (Ott-OPS)
And you trust the RCMP?
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David Migicovsky, Counsel (Ott-OPS)
The RCMP has kept the Prime Minister and his family safe?
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David Migicovsky, Counsel (Ott-OPS)
And the RCMP takes security very seriously?
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David Migicovsky, Counsel (Ott-OPS)
And one of the documents, I won’t take you to it, but I believe the Commission took you to it, one of the documents that you were taken to referenced the INTERSECT group. You’re familiar with the INTERSECT group?
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David Migicovsky, Counsel (Ott-OPS)
Sure. It was described in that document as a group that gets stood up and is composed of the OPS, the RCMP, PPS, OPP. You’re familiar with that?
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David Migicovsky, Counsel (Ott-OPS)
And all of them are involved in decisions and discussions about these types of protest events and security concerns; correct?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, in that chain of emails that you were taken to, there’s reference, and it was on January 25th, Ms. Powers indicates that: “The key will be tomorrow’s INTERSECT meeting and how law enforcement will pre- mobilize.” (As read) So you’re obviously aware that the RCMP, whom you have a lot of confidence in, is monitoring the protest as it’s approaching Ottawa; correct?
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David Migicovsky, Counsel (Ott-OPS)
And on January 27th, and I won’t pull it up, but I’ll give the reference for the record, it’s PB.CAN.00001844. There’s a series of text messages, I believe, between Minister Mendicino and yourself, and you indicate that the RMCP -- or he indicates to you that the RCMP, on January 27th, says that the current estimate is about 2,700 trucks, but the numbers could fluctuate. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And there’s another document from the PMO, I believe it’s from Ms. Power? She’s the Issues Advisor?
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David Migicovsky, Counsel (Ott-OPS)
And so there’s an email from her on January 28, again the reference number is SSM.CAN.NSC.00002795. And she gives some more data as to what the status is. One of the things that she references in that report on the latest numbers is Project Hendon. And we’ve heard a lot about Project Hendon. Was that something that you were familiar with as well?
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David Migicovsky, Counsel (Ott-OPS)
I’m sorry?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Subsequently you did hear about Project Hendon? Is that right?
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David Migicovsky, Counsel (Ott-OPS)
Right. And so she’s referring to -- so obviously the RCMP, I’m assuming, has access to the same Hendon data as the other security services? Fair assumption?
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David Migicovsky, Counsel (Ott-OPS)
Okay. And so what we see when we look at all of these documents that I'm referring to is the numbers of vehicles of trucks in the convoy in the last couple of days before it arrives is a constantly fluctuating number nobody seems to be able to get a full grasp on; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
And certainly, nobody, even the RCMP, up until that day, the Friday, were saying that this protest was going to become an occupation, correct?
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David Migicovsky, Counsel (Ott-OPS)
And so you understood that even the law enforcement community couldn't predict exactly what occurred and what did in fact occur, fair?
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David Migicovsky, Counsel (Ott-OPS)
And you wouldn't fault the RCMP for that, would you?
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David Migicovsky, Counsel (Ott-OPS)
You've talked about what you saw on social media in the days leading up to it, and CSIS has told us that analyzing social media is rather complex and requires more than simply scrolling through social media. You wouldn't have any reason to disagree with that, would you?
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David Migicovsky, Counsel (Ott-OPS)
I'm sorry, I don’t mean to cut you off, but I have a very limited amount of time. My question was more related to the numbers of people that are coming on social media, because what Mr. Vigneault said is it is difficult to tell. It's a challenge, I think he said, to know when someone moves from the online space to physical space and the social media is full of misinformation. Ms. Telford, you wouldn't disagree with that, would you?
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David Migicovsky, Counsel (Ott-OPS)
Right. And you recognize -- just moving on to another area -- you recognize that police - - and we've heard from a number of ministers -- that police need to have operational independence from government?
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David Migicovsky, Counsel (Ott-OPS)
And that police have to make operational decisions in real time for reasons that may not be evident to the government or to the public, fair?
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David Migicovsky, Counsel (Ott-OPS)
And again, you respected that operational independence. You wouldn't want the police, whether it's the Ottawa or OPP or the RCMP to take action without considering what impact that action would have on officer safety or crowd safety or children in the crowd?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, one of the lessons of Ipperwash that we've heard is that governments should not be allowed to influence specific law enforcement operational decisions. You'd agree with that, fair?
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David Migicovsky, Counsel (Ott-OPS)
And that -- and it's because decisions, those type of operational decisions belong to the police based on their expertise and their discretion, correct?
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David Migicovsky, Counsel (Ott-OPS)
And there's nothing to suggest that the Ottawa Police Service did not exercise their discretion legitimately and in good faith in this case; is that fair?
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David Migicovsky, Counsel (Ott-OPS)
The situation we've heard in Ottawa was -- I'm going to use a word that we've all heard a lot in this -- was a volatile one. You wouldn't disagree with that?
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David Migicovsky, Counsel (Ott-OPS)
And ultimately, that situation was defused, but you'd agree with me that defusing a situation like this one is something that takes time? In fact, the prime minister, in a conversation with the governor general on February 5th, specifically made that point when he said, "It's going to take time to defuse this." You wouldn't disagree with that, would you?
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David Migicovsky, Counsel (Ott-OPS)
And ultimately, in addition to time, it took a massive amount of additional resources as well, correct?
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David Migicovsky, Counsel (Ott-OPS)
And those -- let me just finish off my remaining minute or two. Negotiations, you understand that before police execute a tactical operation, they will try and defuse a situation and try to negotiate, right?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, you recall that the prime minister and Minister Blair met with opposition leaders and provided a briefing on February 10th, and at that briefing, the national security and intelligence advisor specifically said, "Law enforcement activities are in line with negotiations with organizers to ensure there's no violence." That makes sense to you, doesn’t it?
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David Migicovsky, Counsel (Ott-OPS)
And she also indicated that Minister Blair talked about the importance of negotiation by the police, and you wouldn't disagree with what Minister Blair said?
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David Migicovsky, Counsel (Ott-OPS)
I'm not sure if it was the first or the second.
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David Migicovsky, Counsel (Ott-OPS)
Now, we talked about the engagement proposal that was prepared as a framework for negotiation. And I understand that Deputy Minister Stewart, on February 11th, advised that that engagement proposal had been prepared and validated with the OPP expert, Marcel Beaudin. Do you recall that?
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David Migicovsky, Counsel (Ott-OPS)
And in fact, Chief Sloly had earlier on also requested an interlocutor be used as a method of achieving a breakthrough. You're aware of that?
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David Migicovsky, Counsel (Ott-OPS)
And one of the rationales -- and I'll just finish off this point if I may, Commissioner -- one of the rationales that you mentioned in your witness statement for why the engagement proposal went nowhere was the - - what happened in Windsor. And when I looked at the record, there's an indication in a document that we'd seen previously -- it's PB.NSC.CAN.00002963, Deputy Minister Stewart said that the reason the letter from Ontario Minister Jones didn’t have much effect was owing to the late hour of the day in which it was given out and the enforcement starting the next morning. You wouldn't have any reason to disagree with that, would you?
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David Migicovsky, Counsel (Ott-OPS)
Right. And after the engagement proposal was discarded as an idea, nobody went back to the police and -- or Marcel Beaudin and said, "Hey, what else should we do?" Is that fair?
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David Migicovsky, Counsel (Ott-OPS)
Okay. Thank you very much. Those are my questions.
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David Migicovsky, Counsel (Ott-OPS)
Commissioner, David Migicovsky for the Ottawa Police. The rules do provide that my friend is limited to an examination in-Chief of the clients. We have listened to him go on ---
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David Migicovsky, Counsel (Ott-OPS)
Sorry. The rules do provide that my friend is limited to an examination in-Chief, and this is not what we're seeing. This is my friend giving evidence, and I am sure that there is a question that will be coming, but so far we haven't heard it. It seems to me that's not what the rules contemplate
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David Migicovsky, Counsel (Ott-OPS)
Good afternoon. David Migicovsky for the Ottawa Police Service. In approaching the evidence, Commissioner, the starting point we say is to look at what is not contentious. And there was a refrain of three words that we heard from almost all of the witnesses - unprecedented, fluid, and volatile. It is not in dispute that the protest which became an illegal occupation was unprecedented in this country. The fluidity and volatility of the situation was caused by the presence of large trucks spread throughout downtown, coupled with protesters, whose numbers swelled to the thousands during weekends, and a crowd that included children. That too is not in dispute. Having heard the evidence, you can now understand and the public can understand the intractable problem faced by the police, which was how to safely end the occupation without injury or loss of life to the community, to the protesters and to the police officers on the ground. Another matter on which the evidence is uncontroverted is that the entirety of the Ottawa Police Service were united in a singular desire to do the right thing. The objective was always to safely end the occupation and return the City to normalcy. While there may not always have been unanimity on what was the best approach to achieve the objective, everyone worked tirelessly doing their very best under very challenging conditions. What is also not in dispute was the need for more resources. It was brought to the fore on January 31st and the request for more resources was a refrain that started that day and ended when those resources arrived. Another matter upon which the evidence is uncontradicted is that the Ottawa Police Service and its partners came together to plan and execute an Integrated Operational Plan. Minister Blair recognised that the plan was flawless and its execution was careful and methodical. In his words, it was a textbook example of how to safely carry out the police POU operation. Importantly, Minister Blair recognised that what happened in Ottawa was not a policing failure, and what was needed ultimately to resolve the occupation and what was finally delivered was a massive influx of resources. The second point we ask that you keep in mind when you assess the evidence is to be aware of hindsight bias. Hindsight bias is the not-uncommon human tendency to look back at events after they have occurred and to assert that it was predictable. But as we all know, this event was not predictable. You heard a great deal of evidence about the intelligence that existed in the days before the arrival of the convoy, what it meant and how law enforcement should have responded to it. We ask that you carefully review that evidence to determine whether the perceptions of some of the witnesses in that regard is as a result of hindsight bias. No one knew that a protest about vaccine mandates which started off as peaceful and law-abiding would become an occupation. The plans that the Ottawa Police Service had for managing the event prepared with all of its law enforcement partners and everyone cooperated in assisting what was intended to be the facilitation of a peaceful process. And a classic example of hindsight bias came from those witnesses who said the trucks should have been turned away and not allowed in. You heard much evidence as to why that should not -- would not have worked and what the impact of doing so would have been. Trucks would have been stranded on the Queensway and to turn them away would have required thousands of officers and would have angered and incited those who had travelled so far to get here. The evidence you heard demonstrates that the Ottawa Police Service learned from its experience. Changes have been implemented in many areas, including how intelligence is analyzed and devoting resources to the analysis of social media and how event planners now balance the right to peaceful protest with the impacts of protest on the community. There has been a recognition of the need for greater clarity in the operation of the Incident Command system and the Ottawa Police Service has strengthened their PLT program. The Ottawa Police Service looks forward to receiving this Commission’s report so that it can take even further steps to improve the safety of this community and to continue to rebuild public trust. Thank you very much, Commissioner.