The Hamilton Spectator

04 February 2010

Barbara Brown

CAYUGA (Feb 4, 2010)

The battle of wills between OPP Commissioner Julian Fantino and Caledonia political activist Gary McHale continues, with no checkmate in sight.

Fantino regained significant ground yesterday, however, when a senior lawyer with the Crown Law Office in Toronto withdrew a criminal charge against him involving the use of threats to influence, or attempt to influence, the elected officials of Haldimand County.

Why the charge was dropped

The charge had been brought privately by McHale, founder of Canadian Advocates for Charter Equality, who anticipated the Crown's move and had already filed an application for a judicial review.

The activist had been pressing Ontario Attorney General Chris Bentley to bring in a prosecutor from outside the province, claiming the government was in conflict of interest because it had been determined from the start to block his private charge and keep Fantino from being prosecuted.

"I had no confidence in the Attorney General's office over the last four years -- looking at Caledonia -- that they were independent enough to want to bring in an outside prosecutor," McHale said yesterday outside the courthouse.

"I mean, what could have been the harm? Three weeks ago they could have brought someone in from another province to look at the evidence. He could have stood up and said the same thing and it would have had a different perception to the public."

Haldimand Mayor Marie Trainer's testimony at McHale preliminary hearing (pages 20-21)

Fantino and McHale have been at loggerheads for the past three years and have sometimes appeared obsessed with having each other charged and hauled before the courts.

McHale currently faces an obscure charge of counselling mischief not committed that was laid by the OPP in December 2007. He is seeking to vary the terms of his bail that prohibit him from stepping foot in Caledonia.

The allegation of inciting civil disobedience stems from a public rally that turned violent, with native and non-native protesters facing off over the issue of an illegal native smoke shop on Argyle Street South at Highway 6. Prominent native activist Clyde Powless was also charged that day with mischief and with assaulting McHale.

In an e-mail to a supervising officer regarding the tense standoff that day, Fantino said of McHale: "I feel like doing what L.A. Police Chief Daryl Gates (does) -- go out an arrest the goof myself."

Two years later, McHale had the commissioner charged with a criminal offence over an e-mail Fantino sent to Haldimand County Mayor Marie Trainer and council, in which he blasted the politicians for suggesting that McHale had the right to freedom of speech.

Fantino wrote: "And now, apparently, we have Councillor (Craig) Grice commending someone that he knows is a lightning rod for confrontation and potential violence."

The commissioner warned that if any OPP officer was injured as a result of McHale's forays into Caledonia, he would hold Grice, council and McHale accountable. Fantino said he would support any injured officer who filed a lawsuit, pass additional policing costs on to council and "strongly recommend to (his) Minister that the OPP contract with Haldimand County not be renewed once the current contract expires."

McHale has been a vocal critic of the OPP, claiming they routinely looked the other way when native protesters committed offences, even violent assaults, but were quick to charge non-native protesters.

"What the government has been doing in Caledonia is completely illegal, completely against democracy, against the rule of law, and against the Charter of Rights," McHale said outside court.

"Everyone has the right to equal protection under the law. Can anyone honestly believe that the people in Caledonia have actually experienced equal protection under the law?"

McHale has cited the lack of law enforcement during the early days of the native occupation of the Douglas Creek Estates in Caledonia, when native protesters from the Six Nations reserve and members of the Mohawk Warriors seized the housing subdivision then under construction, barricaded roads, burned a rail bridge, tore down hydro towers and tossed vehicles over the Caledonia bypass.

In the midst of the turmoil, a Hydro One transformer was destroyed. Power was knocked out in the region for two days and damages were pegged at close to $1 million.

"There's not a single court in the land that's going to exempt an entire group of people -- based on their race or skin colour -- and say that they can break the law," McHale said.

As for the charge withdrawn against Fantino, Milan Rupic, chief counsel for the province's justice prosecutions unit, told court there was a low threshold, in terms of the strength of the evidence, for a justice of the peace to lay a charge brought by a private citizen.

Rupic said the test for the Crown in determining if there was a reasonable prospect of obtaining a conviction was "a significantly higher and stricter standard" than the test to issue process on a private charge.

Fantino was not in the courtroom yesterday, but in a press release expressed "satisfaction" with the withdrawal of the charge against him, saying it was the logical outcome to an unsubstantiated allegation.

"I remain proud of the difficult work done by the OPP over the last several years in Caledonia. Our efforts have resulted in a relative calm and minimized potential violence. The results speak for themselves," Fantino said.

CHRONOLOGY

July 7, 2009 -- A private information is sworn by Gary McHale, seeking to have OPP Commissioner Julian Fantino charged with using a threat in the attempt to influence elected officials.

Aug. 11, 2009 -- A in-camera hearing is held before justice of the peace David Brown in Cayuga. Brown refuses to issue McHale's request for a summons for Fantino.

Nov. 5, 2009 -- McHale brings a mandamus motion before Superior Court Justice David Crane, seeking an order from the higher court compelling the JP to lay the charge.

Dec. 31, 2009 -- Crane orders Brown to issue summons for Fantino to appear in court.

Jan. 8, 2010 -- Brown issues a summons for Fantino to appear on Feb. 3, 2010.

Jan. 15, 2010 -- The Crown fast tracks the case before the court on Jan. 15, only to adjourn it to Feb. 3.

Feb. 3, 2010 -- Crown withdraws charge against Fantino.

Toronto Star

04 February 2010

Peter Edwards

 STAFF REPORTER

CAYUGA–Ontario Provincial Police Commissioner Julian Fantino says it was only logical that a corruption allegation against him was thrown out of court on Wednesday.

"As previously stated, I have the utmost respect for and confidence in the judicial system and am content that this vexatious allegation was dealt with in a just and appropriate manner," Fantino said in a statement.

His comments came after it took just 20 minutes for Justice of the Peace Dan MacDonald to rule there weren't sufficient grounds to proceed with the corruption complaint filed by activist Gary McHale.

Fantino didn't appear in court on Wednesday, as the privately laid charge against him of influencing or attempting to influence municipal politicians was dropped.

MacDonald agreed with Crown counsel Milan Rupic, who told court that an email Fantino sent on April 7, 2007, to the Haldimand County mayor and council in nearby Caledonia wasn't a threat against the politicians.

"The Crown does not permit prosecutions to proceed unless there is a reasonable prospect of conviction," Rupic told court.

Fantino's 2007 email told the local politicians of his hopes of avoiding violence in connection with an ongoing land claims dispute with natives in the Caledonia area.

In the email, Fantino told the local politicians that he would send them a bill for policing costs, if officers were injured at protests that were instigated by McHale.

"If a person gets a bill and they do not agree with it, it can become the subject of a complaint or a civil dispute, but that does not make it the proper subject of a criminal proceeding," Rupic said.

McHale alleges that First Nations protesters have been given special status by the OPP during their occupation of a residential construction project.

After MacDonald's ruling, McHale vowed to press higher courts to review the conduct of the Crown and attorney general's office, alleging they're in a conflict of interest.

Toronto Star

Last Updated: 3rd February 2010, 10:32pm

By antonella artuso and jonathan jenkins, Queen’s Park Bureau

.A decision by an Ontario Crown attorney to withdraw a charge against OPP Commissioner Julian Fantino is being questioned after the province ignored requests for an out-of-province prosecutor.

PC Leader Tim Hudak said the province’s Crowns first argued that the charge should not be laid, and when contradicted by a judge, took over the prosecution and then dropped the charge.

An independent prosecutor from outside Ontario should have been brought in to go over the case, he said.

“Otherwise, quite frankly, we’re going to wonder why he’s had Crown attorneys arguing on both sides of this case,” Hudak said. “We need objectivity.”

Activist Gary McHale had alleged that Fantino sought to illegally influence politicians on Caledonia council by urging them in e-mail correspondence not to attend his protest rallies over the native occupation at Douglas Creek Estates.

An Ontario supreme court justice ruled Fantino must face McHale’s privately laid allegations in a criminal court, but the Crown withdrew the charge Wednesday.

Attorney General Chris Bentley said the head of the justice prosecutions unit handled the case, and he was not involved in any prior proceedings on the matter.

“This was dealt with in the appropriate manner,” Bentley said. “The message is that there is one law for all. And the law applies equally to all.”

Premier Dalton McGuinty said he has confidence in the judicial process.

“I respect and accept the outcome,” McGuinty said.

Fantino said in a statement that he was satisfied with the result, noting that this “vexatious allegation” had been properly dealt with in a just and appropriate manner.

McHale said he will file a judicial review to have the Crown’s decision overruled.

Toronto Globe and Mail

Tuesday, Feb. 02, 2010 10:36PM EST

Christie Blatchford

OPP Commissioner Julian Fantino and upper levels of the provincial police force appear to have been virtually obsessed with arresting activist Gary McHale.

Disclosure material recently released to Mr. McHale in his defence on a bizarre “counselling mischief not committed” charge and now filed in Ontario Superior Court show that in an eight-day period in December, 2007, the OPP boss wrote at least 27 e-mails about Mr. McHale, and that in the flurry of traffic between him and various senior officers, Mr. McHale's name was mentioned at least 116 times.

Most of the notes were before Mr. McHale was finally charged with an offence that, later, judges and lawyers confessed they had never heard of before.

Out of a disclosure package that may include as many as 2,000 e-mails, Mr. McHale culled 115 pages of them to file with the court Tuesday.

At one point on Dec. 3, 2007, the commissioner wrote his deputy, Chris Lewis, and said, “I feel like doing what L.A. Police Chief Daryl Gates [does] – go out and arrest the goof myself.”

The day before, a frustrated Commissioner Fantino wrote Deputy Lewis, “The reason I waited to get back to you was to simply cool off. What are we doing in Caledonia? We seem to be in an almost state of paralysis when it comes to proactively doing anything respecting McHale et al. If it isn't us being told what to do by feeble Crowns, it's our own lack of fire.

“It seems to me that we are reactive to the point that McHale is the orchestra leader while we are almost captive to his nonsense …. ahhh, I can't believe this!!!!!”

Commissioner Fantino appears to have been intimately involved in what he once labelled the effort to “take him [Mr. McHale] out.”

There are frequent references in e-mails between other senior officers – “Boss is asking”; “request of commissioner”; “commissioner has significant concerns”; “when he [the commissioner] has to reach out for an update and then doesn't get a reply, that's not a good thing” – which suggest that he was also riding hard on anyone not enthusiastically joining the quest to have Mr. McHale arrested.

At one stage, the McHale updates were so frequent that one senior officer, Superintendent Ron Gentle, director of the OPP's criminal investigation bureau, asked one of his detectives, “Why are you submitting these updates?

“… If there is someone else who has asked you for these I'd like to know what the purpose is and why they tasked one of my members with this duty …? If I had every CIB member giving three updates a day on every case they were assigned, all we'd be doing is typing and reading.”

His note was prompted by receipt of an e-mail from Detective-Inspector Bill Renton, apologizing for being late with his 2 p.m. update.

Presciently, Supt. Gentle warned the e-mail trail had “implications in relation to disclosure, evidence and leaves one wondering who is the manager of the case – you, or is someone else directing the investigation from afar?”

The answer came 47 minutes later from Inspector J.D. Stephens: “The deputy commissioner has requested these reports to keep the commissioner briefed.”

Supt. Gentle appears to have been the only senior officer sounding a note of caution. At one point, when Deputy Lewis asked if the plan could be rushed, he wrote, “I fully understand the commissioner's concerns and the need for this to be expedited. However he, you and I are crime fighters from way back and we all know the importance of doing the right thing here keeping in mind our responsibilities to all involved …”

Mr. McHale, 47, is now seeking to have the bail conditions removed that were imposed upon him after his Dec. 7, 2007, arrest.

More than two years later, the restrictions still include a full ban on travel to the town of Caledonia, site of the long-standing native occupation and lawlessness which prompted Mr. McHale's activism.

Commissioner Fantino's own charge – in a private complaint laid by Mr. McHale, the OPP head is accused of influencing or attempting to influence municipal officials in the small town south of Hamilton – is slated for a court appearance in nearby Cayuga Wednesday morning.

He wouldn't say Tuesday whether he will attend in person, telling The Globe that he would be “taking direction from my counsel” last night. He refused to identify the lawyer.

The commissioner is charged in connection with an April, 2007, e-mail he sent Haldimand County Mayor Marie Trainer and her councillors, lambasting one of them for having had the temerity to support Mr. McHale, whom the OPP boss slammed as “a lightning rod for confrontation and potential violence.” The commissioner warned that if any of his officers was hurt in a Mr. McHale-led protest, he would hold Haldimand County responsible and bill it for the added policing costs.

Yet despite Commissioner Fantino's apparent fixation with Mr. McHale, the facts on the public record don't bear out his view of what transpired in Caledonia that summer.

The worst violence, for instance, preceded both the commissioner taking over the OPP in the fall of 2006 and Mr. McHale, who then lived in Richmond Hill, first showing up in Caledonia in July that year.

As testimony at a recent civil suit revealed, the most egregious lawlessness in the small town, where protesters from the nearby Six Nations reserve seized a former housing subdivision, occurred after a failed OPP raid in April of 2006 and during the early summer, when protesters barricaded roads, burned a bridge to the ground and destroyed a hydro transformer.

Most of Mr. McHale's protests, by contrast, involved either trying to carry a Canadian flag through the town or demonstrations against various native “smoke shacks” on public property.

Mr. McHale is the editor of the CaledoniaWakeUpCall website, where many of his legal battles are carefully documented, and a founder of CANACE (Canadian Advocates for Charter Equality), a group opposed to race-based policing.