Fantino finally served 

[To get a good sense of the storyline here, and the odds which seem to be stacked against McHale and for OPP Commissioner Julian Fantino,  read Christie Blatchford’s article of 16 January updated 20 January “Another court case, another blow for fairness in Fantino case” (second down)]

thestar.com

Published On Wed Jan 20 2010

The Canadian Press

Ontario’s top police officer has been served with a summons over an allegation he influenced or attempted to influence municipal officials.

A York Regional Police spokeswoman says Ontario Provincial Police Commissioner Julian Fantino was served today, but wouldn’t go into details.

Activist Gary McHale has been trying to have Fantino charged after the commissioner allegedly sent an email in 2007 telling the mayor and councillors in Caledonia, Ont., not to attend McHale’s rallies.

McHale has led a number of rallies in the community south of Hamilton to protest what he called two-tier justice in the policing of an aboriginal land occupation.

The case was put over earlier this month until Feb. 3 after the Crown asked the court in Cayuga for more time to review new evidence relating to the allegation.

Fantino has vowed to “vigorously” fight the allegations.

A charge of influencing or attempting to influence municipal officials is a Criminal Code offence that carries up to a five-year prison term.

The Attorney General’s office has said a special prosecutor will be assigned from the Justice Prosecutions Unit, which was set up to handle cases involving police or other justice officials and is made up of senior Crown counsels with extensive experience in criminal cases.

 A new court date, another blow for fairness in Fantino case  

Toronto Globe and Mail 

Published on Saturday, Jan. 16, 2010 12:00AM EST 

Last updated on Wednesday, Jan. 20, 2010 2:23PM EST 

CHRISTIE BLATCHFORD    .cblatchford@globeandmail.com  

In a bizarre new version of "hurry up and wait," the Ontario Attorney-General's Department urgently rushed ahead of schedule the private criminal complaint of activist Gary McHale against OPP Commissioner Julian Fantino only to do absolutely nothing with it. 

On Tuesday, the ministry issued a news advisory that "the Crown is taking steps" to bring the matter forward almost three weeks earlier than Feb. 3, the date it was slated to be back in Ontario Court. But yesterday, the new date, Milan Rupic of the ministry's Crown law office offered no explanation for the move - and in fact, at one point, when Mr. McHale was asking for an extension, actually told Justice of the Peace Dan MacDonald that "the date fixed by the summons cannot be changed." 

The absurd exercise lends credence to speculation that the AG was planning to stay the charge against the OPP boss yesterday, but was outfoxed by Mr. McHale, who complained in writing last Wednesday that the earlier date wouldn't allow him to prepare properly or present his evidence to the Crown. 

To stay a charge in the face of such a reasonable request might have doomed the Crown on appeal and certainly would have made it look as though the fix was in. Mr. McHale remains convinced that the fix is in - hard to argue with him - but that by agreeing to revert to the Feb. 3 date, the optics on the government's machinations may be slightly better. 

Neither Mr. Fantino, who is on holiday, nor a lawyer representing him, appeared in court yesterday. But then, as Mr. Rupic announced to JP MacDonald, the commissioner didn't have to be present because, although a summons has been issued against him, "it has not been served" upon him. 

I asked ministry spokesman Brendan Crawley if perhaps the Crown was having difficulty locating Mr. Fantino. Mr. Crawley replied simply that York Regional Police, the force in the jurisdiction where the commissioner lives, has the responsibility for serving him. 

Mr. McHale, 47, is an activist against two-tiered policing in Caledonia, the small Southwestern Ontario town just west of Cayuga that was made notorious after natives from the Six Nations reserve seized a housing development called Douglas Creek Estate in February, 2006. 

The occupation, which continues to this day, turned violent on April 20 that year when the OPP raided the property but were driven off by as many as 1,000 protesters. Only rarely have the OPP returned to the site, as various officers have testified in some of the myriad court actions that have sprung out of the occupation. 

If Mr. McHale is hardly alone in criticizing the government and the OPP for its handling of the occupation - even during periods of egregious lawlessness, the official view was that immediate arrests of native suspects might spark further violence and other protests - he is probably the most irritating thorn in the commissioner's side. 

The OPP boss is charged with the indictable offence of influencing or attempting to influence municipal officials, this via an April 7, 2007, e-mail to Caledonia Mayor Marie Trainer and her councillors. In the e-mail, which the commissioner copied to Premier Dalton McGuinty's chief of staff and press secretary among others, Mr. Fantino threatened that any member of council who spoke supportively of Mr. McHale or his protests would pay the price - literally, because he would bill the county for any extra policing costs. He also threatened to recommend the OPP cancel its contract with the county. 

A month after Mr. McHale laid his private information, there was a "pre-enquete" hearing before Justice of the Peace David Brown, who ruled that the charge shouldn't proceed. The same Attorney-General's Ministry that now purports to offer Mr. McHale a fair review of his complaint sent two lawyers to the pre-enquete to argue that the complaint should be quashed, as indeed it was. 

But Mr. McHale appealed, and again the ministry dispatched the two lawyers to oppose him. And on Dec. 31, Ontario Superior Court Judge David Crane overruled the JP, and ordered the local JP to "issue process" - basically, to get on with it.

On Jan. 8, the JP issued process, which meant that the commissioner was officially charged, although the York force apparently hasn't been able to locate him to serve him with a summons. 

Furthermore, who should this week interject himself into the fray but Mr. McGuinty, who was asked whether Mr. Fantino would be stepping aside pending resolution of the charge against him, and said there was no reason for him to do so. Given all of this, Mr. McHale has good reason for cynicism that his complaint will be reviewed neutrally and treated like any other. It sure hasn't been thus far. 

And, speaking of Caledonia, the home of Dave Brown and Dana Chatwell, whose lawsuit against the government and the OPP provided weeks of evidence about the OPP's handling of the occupation before the case was quietly settled out of court, has been razed. 

As part of the settlement, ownership of the house, which is bordered on two sides by the occupied site, was transferred to the province, which took possession of it on Thursday. For "safety and security reasons," according to a release from the Ministry of Energy and Infrastructure, it was immediately demolished. 

Spokesman Sylvia Kovesfalvi said the razing "will avoid potential hazards associated with an unoccupied building." I'm sure it had nothing to do with this week's Turtle Island News, an independent paper published on the Six Nations reserve.

 On Page 7, a story reports that at last week's Six Nations' elected council meeting, in a general discussion about council "taking" land as opposed to buying it, Councillor Melba Thomas said, "Shouldn't we do that, too, with the house that's been vacated? At DCE?" 

Only in Ontario do you tear down a house to protect it.

CJOB 68 Hamilton News

15 January 2010

Canadian Press

A charge against provincial police Commissioner Julian Fantino of influencing or attempting to influence municipal officials has been put over until next month.

The Crown is asking for more time to review new evidence relating to the allegations brought by activist Gary McHale.

McHale has been trying to have Fantino charged after the commissioner allegedly sent an email in 2007 telling the mayor and councillors in Caledonia not to attend McHale's rallies.

McHale says he's been asked to produce all his evidence by January 20 so the Crown can decide whether to go ahead with the charges on February 3 the original date cited in Fantino's summons.

The Crown gave no explanation of why it asked to bring the matter forth today only to push it back to the original date.

Ontario appointing Crown in Fantino prosecution  

OPP boss has yet to receive summons 

The Hamilton Spectator

January 12, 2010

With files from wire services

Ontario Provincial Police Commissioner Julian Fantino had not yet received formal notice by end of business yesterday after a summons was issued alleging he illegally influenced elected officials in Haldimand County over the ongoing native dispute in Caledonia.

"The commissioner hasn't been served with anything yet," said OPP spokesperson Dave Ross.

"All we've been told at this point is a process is issued," Ross said.

On Friday, the ministry of the attorney general confirmed that a justice of the peace "issued process" against Fantino on one count of influencing or attempting to influence municipal officials.

Issuing process is a legal step required before charges are officially laid and court dates set.

The case results from the launch of a private prosecution by activist Gary McHale, who pressed to have Fantino charged after the commissioner sent an April 2007 email allegedly telling the mayor and councillors in Caledonia not to attend McHale's rallies.

McHale led a number of rallies to protest what he called two-tier justice in the policing of the Caledonia occupation.

The summons came after a Dec. 31 Ontario Superior court order demanding a formal charge be laid.

Next, the ministry must decide whether to prosecute the charge, stay the case or drop it.

McHale says he wants an out-of-province prosecutor if the case proceeds. But McHale says he received a letter from the attorney general's ministry informing him that because Fantino is a police officer, the case will be assigned to a Crown within the justice prosecutions unit, a division formed to prosecute criminal cases where the accused is someone involved in the justice system.

Brendan Crawley, a spokesman for the Ministry of the Attorney-General, said Monday that a Crown who has no previous experience of Fantino will be assigned to the case.

The OPP issued a written statement on behalf of Fantino during the weekend saying the commissioner intends to strongly defend himself against the charge.

In the weekend statement, Fantino also defended police efforts to keep the peace and protect the public in Caledonia during the land claims dispute.

"I am proud of the work that the men and women of the OPP have done in Caledonia over the years in a complex and, at times, extremely volatile environment," it said.

"The OPP and its officers have taken a measured approach and acted in accordance with legislated responsibilities and exercised police discretion appropriately, fairly and equally," the statement said.

Fantino, whose tenure at the OPP has at times been controversial, has been at the helm of the police force since 2006.

National Post

Published: Saturday, January 09, 2010

Kathryn Blaze Carlson and Kenyon Wallace, National Post; With Files From Matthew Coutts 

 Ontario Provincial Police commissioner Julian Fantino is facing a charge of attempting to influence municipal officials, an indictable offence, after a justice of the peace yesterday signed a summons requiring the former Toronto police chief to appear before a criminal court.

The summons comes after a Dec. 31 Ontario Superior Court order demanding a formal charge be laid in relation to allegations against Mr. Fantino brought forward by a private complainant, Gary McHale, who has long been at odds with the commissioner over his handling of the aboriginal protests in Caledonia.

"The summons makes sense," said Mr. McHale. "It's great that the system has finally kicked in and the charge has gone forward. I'm happy that the courts have upheld the rights of average people to have these types of cases prosecuted."

The OPP could not be reached for comment last night, but Brendan Crawley, spokesman for the Ministry of the Attorney General, wrote in an email that "when a private prosecution involves an indictable offence, the Crown Attorneys Act requires the Crown to intervene and assume carriage of the prosecution."

Now that Mr. Fantino has been summoned, onlookers question the logistics of launching a criminal case against the province's top officer.

"This is a very unusual case," said Steven Skurka, a partner at Toronto law firm Skurka & Spina LLP. "I can't remember a police officer ever being charged in private prosecution, let alone the chief."

"This is uncharted territory," echoed James Stribopolous, associate law professor at York University's Osgoode Hall.

At the centre of the current dispute is Mr. Fantino's April 7, 2007 email to Haldimand County's mayor and councillors in which he allegedly warned the politicians not to support anti-occupation protests.

The Commissioner wrote that he would hold the county directly accountable for any injuries suffered by OPP officers during protests by a contentious group known as "Caledonia Wake Up Call," led by Mr. McHale. He also warned that he would advise the Ministry of Community Safety and Correctional Services not to renew the OPP's contract with Haldimand County for policing once it expired if councillors supported the protest group.

A letter sent to Mr. McHale yesterday by the Ministry, and obtained by the National Post, states that because Mr. Fantino is a police officer, the case will be assigned to a Crown within the justice prosecutions unit, a division formed to prosecute criminal cases where the accused is someone involved in the administration of justice, such as a police officer.

"I can assure you that the Crown assigned to this matter will fairly and appropriately apply all of the applicable legal standards to this case as are applied to every other criminal case in Ontario, regardless of who is charged, or who commenced the charge," wrote Kenneth Campbell, director of the Crown's criminal law office.

Because the allegations were brought forward by a private complainant, the Identification of Criminals Act does not apply, and Mr. Fantino will not be photographed or fingerprinted.

Next, the Ministry must decide whether to pursue the charge, a decision Mr. Skurka said rests on two criteria: whether there is a reasonable prospect of conviction and whether it is in the public interest to do so.

"They could withdraw the charge, but that's not something to be done capriciously," he said. "There's an added layer of political accountability."

Mr. Skurka said the Attorney General's decision would be announced at the first court appearance, likely within several weeks of the summons. Mr. McHale said he was informed yesterday by the Ontario Court of Justice in Cayuga, about 50 kilometres south of Hamilton, that Mr. Fantino is expected to appear as early as Feb. 3.

If the Crown decides to pursue the charge, which can carry a sentence of up to five years in prison, the Ministry may choose to hire an independent criminal lawyer -- as it did in the case of former Attorney General Michael Bryant.

Mr. Skurka said that while the case is certainly unusual, the Attorney General "prosecutes police officers all the time," and it makes no difference that Mr. Fantino is the commissioner.

"I see no conflict of interest in terms of the Attorney General dealing with this matter," he said. "Commissioner Fantino is independent of the Attorney General's office."

Mr. Stribopolous, meantime, said it would be "a prudent move" for the Ministry to hire independent counsel. "It's a grey area, but I would think they'd bring in a special prosecutor for the sake of optics," he said, adding Mr. Fantino would benefit from such a decision.

"That way, if the charges are dropped, then it would not look like he was getting any favours. If I were Fantino, I'd want exoneration from an independent prosecutor."

Whether the Attorney General decides to hire a special prosecutor might affect Mr. Fantino's decision to stay on as commissioner, Mr. Stribopolous said. "He'll probably want to see what happens at the first court appearance," he said. "It might be unseemly to stay on as commissioner, but there's no hard and fast rule."

Said Mr. Skurka: "My view is that it is appropriate for him to stay on as commissioner because he has the right to a presumption of innocence just like anyone else."

CBC.ca

Last Updated: Saturday, January 9, 2010 | 4:39 PM ET

The Canadian Press

Ontario Provincial Police Commissioner Julian Fantino says he intends to strongly defend himself against an allegation that he illegally influenced elected officials in Caledonia, Ont., the site of a long-running aboriginal occupation.

"I intend to vigorously defend myself and the OPP against this allegation and have the utmost confidence in the judicial system," Fantino said in a statement Saturday.

A summons was issued Friday against Fantino on one count of influencing or attempting to influence municipal officials — a legal step required before charges could be officially laid and court dates set.

Gary McHale, an activist who led a number of rallies to protest what he called two-tier justice in the policing of the land occupation, has been pushing to have Fantino charged after he sent an email allegedly telling the mayor and councillors in Caledonia not to attend McHale's rallies.

In his statement, the commissioner also defended police efforts to keep the peace and protect the public in Caledonia during the land claims dispute.

"I am proud of the work that the men and women of the OPP have done in Caledonia over the years in a complex and, at times, extremely volatile environment," Fantino said.

"The OPP and its officers have taken a measured approach and acted in accordance with legislated responsibilities and exercised police discretion appropriately, fairly and equally," he added.

McHale released to the media Friday a copy of a letter he received from the Ministry of the Attorney General, which said the Crown will move immediately and assume prosecution of the case. In an email to The Canadian Press, McHale said Fantino is summoned to appear before criminal court in Cayuga on Feb. 3 at 10 a.m.

McHale said Friday he was informed by the court in Cayuga, Ont., that a judge signed a summons on a charge of influencing or attempting to influence municipal officials, a Criminal Code offence which carries up to a five-year prison term.

In a decision released last week, Ontario Superior Court Justice David Crane ruled Fantino must face the allegations presented by McHale. A justice of the peace who heard McHale's complaint refused to issue a summons or warrant for Fantino, but Crane ordered the justice to issue the order.

CP24.com (Toronto Breaking News)

Tue Jan. 05 2010 7:39:28 PM

Pat Hewitt, The Canadian Press

OPP Commissioner Julian Fantino speaks with CTV Toronto, Wednesday, May 27, 2009.

TORONTO — Despite an Ontario Superior Court justice ruling last week that Ontario's top police officer must face allegations he illegally influenced municipal officials, the Ministry of the Attorney General says no further action has yet been taken.

In a decision released last Thursday, an Ontario Superior Court justice ruled provincial police Commissioner Julian Fantino must face allegations brought forward by Gary McHale.

McHale, who led numerous rallies to protest what he has called two-tier justice in the policing of an aboriginal land occupation in Caledonia, Ont., claims Fantino influenced municipal officials in the town when the commissioner sent an email allegedly telling the mayor and councillors not to attend McHale's rallies.

A justice of the peace who heard McHale's complaint refused to issue a summons or warrant for Fantino.

But Superior Court Justice David Crane, who reviewed the case, ordered the justice of the peace to issue such an order, saying it was his duty to do so.

Brendan Crawley, a spokesman for the attorney general, said Tuesday no further action has been taken since the Superior Court issued its decision.

"As a result, there are currently no charges outstanding in this matter, and no summons has been issued," Crawley said in an email.

"As set out in the order, the court documents need to be returned to the court to have 'process issued' with respect to the charges Mr. McHale is seeking to have privately laid," Crawley said.

A court date will be set once this has occurred, he said.

Provincial police are "certainly aware of the court ruling" however at this particular time they have not received an indication that Fantino has received a summons for any type of charge, Insp. Dave Ross said on Tuesday.

Influencing or attempting to influence a municipal official in municipal activities is an offence under the Criminal Code and carries up to a five-year prison term if convicted.

Lawyer Andrew Bell, who represented the Attorney General of Ontario in the case, referred questions to the Ministry of the Attorney General.

In his decision, Crane wrote that the Fantino email says Haldimand County Mayor Marie Trainer and certain councillors "were not to support the public attendances of Gary McHale in Caledonia, nor to make statements of support of Mr. McHale to the residents of Caledonia."

"I observe on the record in this application there is evidence of influenced behaviour by the mayor and county council in response to the Julian Fantino letter," Crane wrote.

Fantino and McHale have tangled in court in the past.

McHale faces charges of counselling mischief not committed.

Fantino testified during a preliminary hearing earlier this year that he told subordinates he would have gladly arrested McHale himself for inciting civil unrest in Caledonia.