R. v. Gary McHale (Counselling Mischief Not Committed)

Caledonia Lawsuits & Court Actions>Targeting of Non-Native Activists>R. v. Gary McHale (Counselling Mischief Not Committed)

ACCUSED: GARY MCHALE 
www.canace.ca, www.caledoniawakeupcall.com

CHARGE: Counselling Mischief Not Commited 

INCIDENT DATE : Dec 01/07

ARREST DATE: Dec 07/07 

DISPOSAL: Stayed by Crown, April 21/10. 

REASON FOR CHARGE: Gary McHale conducted his own defence against a criminal charge of Counselling Mischief Not Committed arising out of a Dec 01/07 Caledonia smokeshop protest where he was viciously swarmed by Six Nations residents and sent to hospital after being jumped from behind by a native man – Clyde Powless – who led the attack in which McHale was kicked and punched on the ground.

CANACE co-founder Jeff Parkinson was knocked to the ground and laid unconscious while native smokeshack supporters yelled, “Finish him off.” CANACE co-founder (also CVP founder) Mark Vandermaas was the first to be assaulted and knocked to the ground. The police refused to arrest his attackers. 

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Although Clyde Powless was charged – and pleaded guilty to – assaulting McHale, he was not charged for assaulting police officers. In fact, not a single charge was laid against any of the Six Nations residents who assaulted OPP officers on Dec 01/07. The OPP, however, charged McHale for a 14 second conversation in which he allegedly suggested to Doug Fleming - who already had blocked the road after a native man blocked it first – that he ask other Caledonia residents to help him block the road, which Fleming did not do. 

Orders by OPP Commissioner to target McHale before investigation began

Since November 2006, shortly after being appointed to his position as the Commissioner of the Ontario Provincial Police, Mr. Fantino has engaged in a vicious campaign of using false statements to attempt to destroy the reputation of Gary McHale  and target him for arrest.

Emails received under disclosure rules show that OPP Commissioner Julian Fantino ordered his officers to target McHale for a charge before the investigation had even begun – in fact, while the protest was ongoing - even though he would himself later testify on Nov 26/08 that the OPP had never charged McHale with a crime prior to Dec 01/07 because they had no evidence to do so.

When ordering his officers to target McHale at the outset of the ‘investigation’ Fantino told them not to get ‘bogged down with legal nuances,’ and expressed his frustration with ‘timid’ and ‘feeble’ crown attorneys. He told officers that even if they couldn’t make the charges stick the effort would be worthwhile because, according to Fantino, because they would be able to ‘expose’ McHale.

  • Dec 01/07, 1020 – Fantino email to Deputy Commissioner Chris Lewis: “at some point McHale has to go” [PDF] (protest began at 1000)
  • Dec 01/07, 1522 – Fantino email to Bob Goodall et al: get McHale, don’t be frustrated by “timid Crowns” who want a sure conviction [PDF]
  • Dec 01/07, 1750 – OPP news release blaming non-native victims for violence against them [PDF] (Fantino confirmed under oath he was talking about McHale & associates.)
  • Dec 02/07, 0645 – Fantino email to Deputy Commissioner Chris Lewis: re Phone call with Deputy Minister [PDF]
  • Dec 02/07 1619 – Fantino email to Deputy Commissioner Chris Lewis: “feeble Crowns” [PDF]
  • Dec 02/07 2131 – Fantino email to Deputy Commissioner Chris Lewis: get McHale; “don’t…get bogged down with legal nuances” [PDF]
  • Dec 03/07, 1951 – Deputy Commissioner Chris Lewis email to Supt. Ron Gentle: Fantino wants McHale charge rushed [PDF]  

Racially-biased arrests & investigation

Despite being a victim of the violence, not the perpetrator, McHale was eventually targeted for what Christie Blatchford of the Globe & Mail called a “bizzare charge” while the native man who led the swarming attack - Clyde Powless – received a letter of reference from Fantino to aid in his guilty plea for assaulting McHale which was caught on video. A planned charge of Assault Police against Powless was quietly dropped within one hour of Fantino being informed of the investigating team’s decision to lay it. 

Testimony from OPP Officer Paul McDonald who was on the scene shows that the OPP did not even bother to contact him to investigate his report of multiple assaults on him and his partner by a group of natives trying to force their van through a police road barricade; a situation that was so serious he warned the driver he was going to pull his weapon.

Despite numerous violent crimes being committed by Six Nations residents in full view of officers, the only arrest on Dec 01/07 was of Caledonia resident Kyle Hagan who was quietly drinking coffee on the already-blocked road (see photo slideshow). He was arrested by the same officer who refused to arrest the natives who attacked Mark Vandermaas.

The sole example of ‘violence’ committed by non-natives on Dec 01/07 was an incident where Caledonia resident Ruth Ann Chapman pushed away an obnoxious pro-smokeshack videographer named Timothy ‘Timmer’ Sywyk who was swearing at a crying Christine McHale after her husband was attacked. It was a minor incident causing no injury, but the OPP went out of its way to prosecute it even though they refused to charge a Six Nations person who attacked police officers.

Many serious charges against Six Nations smokeshack supporters were dropped or never laid, but the OPP was determined to get Gary McHale and other non-natives no matter what the cost, no matter how minor the offence. The evidence shows that the OPP first blamed McHale for blocking the road, which he did not do. Then, he was accused of assaulting a native woman (she was eventually charged by the OPP with Public Mischief for filing a false report, but not charged for assaulting McHale; he was forced to lay the charge himself via private prosecution) to the delight of one officer who called it a “hidden gem.” Once that charge was no longer a possibility, the charge became Mischief, then Counselling Mischief and then, finally, Counselling Mischief Not Committed, an indictable offence for which McHale could be sentenced to 5 years in jail.

Residents’ News Conference at Queen’s Park, Dec 04/07

  • Merlyn Kinrade – Introduction [PDF, VIDEO]
  • Doug Fleming – Illegal Smokeshops [PDF, VIDEO]
  • Brian Hagan – Caledonia Overview [PDF, VIDEO]
  • Merlyn Kinrade – ‘Peacekeeping vs. Law Enforcement’ [PDF, VIDEO]
  • Gary McHale – Events of Dec 01/07 [PDF, VIDEO]
  • CaledoniaWakeUpCall.com feature: Doug’s Smokes

Det. Murray Testimony (Bail Variation Hearing, Dec 14/07): political influence, non-existent violence

McHale’s arresting officer – Detective John Murray – also tried to convince the Court that McHale was a danger to the community, but under cross examination by McHale he made key admissions that contradicted his own assertions: 

  • Two OPP officers visited a native private detective in New York state named Jon Sabin who claimed he had evidence that McHale wanted violence. (Immediately after meeting with the OPP Sabin began a campaign to smear McHale with false allegations of being a white supremacist. Within weeks Sabin had built a fake neo-nazi website in McHale’s name. McHale complained to York Regional Police who investigated the identity theft, and identified Sabin as the true owner. The OPP refused multiple requests by McHale that they provide him with a tape recording of their interview with Sabin.)
  • McHale not violent.
  • McHale quotes Dr. Martin Luther King.
  • Could not cite any McHale protest which had turned violent.
  • McHale associate Mark Vandermaas has not been charged with assault.
  • McHale was falsely accused of assault by native woman.
  • Negotiation stakeholders approached OPP complaining about McHale.
  • Native extremists threatened to ‘escalate’ if something not done about McHale protests.

References

Pre-trial judge to Crown: “Okay. You tell me what’s so serious about this.”

On July 02/08 Judge Cooper made it clear to the Crown that he did not think much of the charge against McHale: 

Transcript, p2:

THE COURT: Okay. Court time in Hamilton is at a premium. We have an incredible number of crack-cocaine fueled crimes, violence, bank, bank robberies, child sex assaults, a lot of in custody things which you’ve seen today.

CROWN: Yes.

THE COURT: A lot of murders, a lot of aggravated assaults. Very serious charges. So, I know that as an experienced Crown law officer, this must be serious, because I understand you’ve got, what is it, five days trial set aside for this and a day for motions?

CROWN: That’s correct.

THE COURT: Okay. You tell me what’s so serious about this.

CROWN: Well, I, I – all – the only way I could answer that questions, Your Honour, is to indicated that this test – or rather, this charge, has gone through the initial Crown screening test of reasonable prospect of a conviction and public interest, and it’s our intention to prosecute the matter. I certainly would not put it anywhere near the same level of seriousness as some of the matters that you’ve delineated.

THE COURT: Okay, then why are you taking six days of Court time to deal with it?

Transcript, p44

THE COURT: Well, give it [a deal w/McHale] some thought, because my concern is that it will not only use up the five or six days, but it won’t finish and I’m concerned that the — all that’s involved may be seen as out of all the proportion to the magnitude of the offence that one has established.

Transcript, p46

THE COURT: Have you considered the cost consequences if your prosecution isn’t successful and the Charter arguments [by McHale] are?

CROWN: It’s, it’s a fair point, Your Honour. No, it’s not something I’ve considered up until now.

The Crown persisted with the prosecution despite the clear evidence of an abuse of power by the OPP. McHale elected trial by jury. The preliminary hearing began in November 2008, resumed in April/May 2009 and again in Sept 2009. It was suspended while McHale waited to appear before Superior Court on April 23/10 seeking an order requiring the judge to admit key evidence which the Crown had refused to disclose despite repeated requests.  As it turned out, that hearing became un-necessary.

References

OPP Commissioner Julian Fantino testimony (Preliminary Hearing)

Despite Fantino’s eagerness to get McHale charged so bail conditions could be used to keep him out of Caledonia, his own testimony on Nov 26/08 was that the OPP had never charged McHale with a crime prior to Dec 01/07 because they had no evidence to do so.  

Fantino’s testimony also reveals the following: 

  • He intervened to stop investigators from laying a charge of  ’Assault Police’ against native man Clyde Powless who had also assaulted McHale.
  • Wrote letter of reference for Clyde Powless for sentencing re: assault on McHale. Letter blames McHale for Powless’ assault on him; calls Powless a ‘peacemaker.’
  • Photographed May 23/07 sharing a joke with Clyde Powless – the man who assaulted McHale and OPP officers Dec 01/07.
  • He never makes derogatory comments in public about native protesters as he does about non-native protesters
  • He has met w/native protesters. Does not meet with non-native protesters.
  • The OPP investigated McHale’s website for the purpose of seeing if they could charge him with a hate crime, but were unable to do so.

References

  • VoiceofCanada, Feb 04/10: Fantino’s sworn testimony vs. Fantino’s emails (exposes the extreme contradiction between Fantino’s allegations regarding McHale’s role in Caledonia violence and Fantino’s own testimony under oath at McHale’s preliminary hearing. On Nov 26/08 Fantino testified that prior to Dec 01/07 the OPP had not arrested McHale because they had no evidence to support a charge.)
  • CANACE reference: Journalists’ Quick Reference Evidence Guide [PDF, 9p]
  • OPP Commissioner Julian Fantino [Nov 26/07: PDF, 92p; April 2009: PDF 134p]

Race-Based Policing – Confirmed

One of the great accomplishments of McHale in deciding to fight the charge rather than accept a plea deal was having an OPP officer, for the first time, confirm under oath that the force uses racially-based policing practices. Officer Bird’s very frank testimony also included his observation that he was very “alarmed” at the the lack of resources for the protest, and his confirmation that the force was not following standard operating procedures.

Bird’s testimony reinforced the serious allegations made by Gary McHale at a news conference on Dec 04/07 that the OPP had deliberately set him up to be assaulted, and in a May 30/08 complaint to the Minister of Community Safety and Correctional Services by Mark Vandermaas, Gary McHale and Jeff Parkinson. 

  • CANACE reference: Journalists’ Quick Reference Evidence Guide [PDF, 9p] (see Jeffrey Bird, p5)
  • Police Services Act complaint, May 30/08: Vandermaas et al v. Fantino [PDF, 71P] (see part 1 re Dec 01/07 – Obstructing Justice; NOTE: since the filing of this complaint, Julian Fantino has been charged with Influencing Municipal Officials, and two of his most senior officers have been charged with Obstructing Justice)
  • Residents’ News Conference at Queen’s Park, Dec 04/07: Gary McHale re Events of Dec 01/07 [PDF, VIDEO]

Senior OPP Officers charged with Obstructing Justice

On March 16/10 Gary McHale presented sufficient evidence to convince a Justice of the Peace to order that charges of Obstructing Justice be issued against OPP Deputy Commissioner Chris Lewis and Superintendent Ron Gentle for agreeing that he was to be charged in order to avoid a native backlash even though they had virtually no evidence against him to support a charge. The key evidence against Lewis and Gentle came from a Dec 03/07 email exchange between Gentle and Lewis – who agrees with Gentle’s suggestion and promises to pass it up to Fantino – “the boss.”

The Crown dropped the charges against Lewis and Gentle on April 14/10.

References

Political Interference

There is strong evidence that members of the Ontario government influenced the OPP into targeting McHale and another activist — Caledonia resident/Hamilton Police officer Dave Hartless.  

1. In response to emails from John Nolan, Sr. Negotiator for the Ontario government to Haldimand Detachment Commander Inspector Dave McLean, Julian Fantino filed an official complaint against Hartless with the Hamilton Police Service regarding his criticism of the OPP and Ontario government. When questioned about this at McHale’s preliminary hearing Fantino claimed not to know who John Nolan was.

2. OPP Detective John Murray testified that “stakeholders” had approached the OPP about McHale’s role in “hindering” negotiations.

3. OPP emails show that Fantino was keeping the Deputy Minister of Community Safetey and Correctional Services Deborah Newman informed about ‘the McHale investigation.’ After McHale submitted several motions to Superior Court, including one to obtain all her emails under the rules of disclosure, the Crown dropped the charge against him. This occurred shortly after McHale’s success in bringing Obstructing Justice charges against the two senior OPP officers.

References

Crown stays charge against McHale

On April 21/10, the charge against McHale was stayed by the Crown.  The preliminary hearing took up a total of 17 days of court time and was still unfinished at the time. Had the Crown continued to pursue the charge, the trial would have begun sometime in 2010 and required approximately 3 months of court time for the jury. McHale is expected to file a Charter-related lawsuit in the coming months.

References

DOCUMENTS, EXHIBITS, TRANSCRIPTS

Key documents (not a complete list)

Pre-Trial Transcripts

  1. Judge Hawk, May 26/08 [PDF, 57p] (disclosure issues)
  2. Judge Cooper, July 02/08 [PDF, 55p] (disclosure issues; concerns re wasting court time)

Conversion of trial to preliminary hearing (before Judge Zabel)

  1. Submissions to Court, Nov 20-21/08: Conversion of trial to preliminary hearing [PDF, 17p]

Witnessess at Preliminary Hearing, Nov 2008 – Sept 2009 (before Judge Zabel)

  1.  Terry-Lynn Brant [PDF, 136p] (Six Nations school principal; lies to court about assault on McHale)
  2. Lisa Parent [PDF, 136p] (Caledonia resident, videographer for NumbersWatchdog.ca)
  3. OPP Officer Ben Gutenberg [PDF, 136p]
  4. Jeff Parkinson [PDF,  21p] (CANACE founder, knocked unconscious, suffered brain damage)
  5. OPP Commissioner Julian Fantino [Nov 26/07: PDF, 92p; April 2009: PDF 134p]
  6. Merlyn Kinrade [PDF, 101p] (Caledonia resident, CANACE founder)
  7. Mayor Marie Trainer  [PDF, 101p] (Haldimand County)
  8. OPP Officer Paul McDonald  [PDF, 101p] (assaulted by natives, no investigation or charges)
  9. Clyde King [PDF, 99p] (Turtle Island News tech)
  10. OPP Officer Jeffrey Bird  [PDF, 99p] (confirms racial policing)
  11. Doug Fleming [PDF, 85p] (Caledonia resident, organizer of Dec 01/07 protest)
  12. Duane Rollins [PDF, 82p] (Turtle Island News videographer)
  13. Jeff Parkinson (2nd appearance) [PDF, 99p] (CANACE founder, knocked unconscious, suffered brain damage)
  14. Dave Hartless [PDF, 54p] (Caledonia resident, Hamilton Police officer)
  15. Dana Chatwell (Caledonia resident [PDF, 54p] (see also LINK)
  16. OPP Inspector Bill Renton [PDF, 160p]
  17. OPP Detective John Murray [PDF, 160p]
  18. Clyde King (2nd appearance) [PDF, 160p] (Turtle Island News tech)
  19. OPP Jeff Christopher [PDF, 160p]

Witnessess for Bail Review Hearing, Dec 2007

  1. OPP Detective John Murray, Dec 14/07 [PDF, 70p]
  2. Haldimand Mayor Marie Trainer, Dec 24/07 [PDF, 38p] 
  3. MPP Toby Barrett, Dec 24/07 [PDF, 38p] 
  4. Dave Hartless, Dec 24/07  [PDF, 38p] (Caledonia resident, Hamilton Police officer)

OPP Emails

NOTE: On Dec 01/07 front line officers were sending information up the chain of command that reflected the reality that the protest had been organized and led by Caledonia resident Doug Fleming, and the violence and criminal acts were being committed by native smokeshack supporters, but the message flowing downward from Fantino was that it was McHale’s protest, that McHale was responsible for the violence and mayhem in Caledonia, and officers needed to target him so the force could obtain travel restrictions that would keep him out of town. Instead of simply allowing his officers to conduct an investigation Fantino and his brass eagerly jumped on a false report that McHale might have assaulted a native woman and immediately set to work blaming him and his supporters for the day’s violence – even though the non-natives were actually the victims of multiple, unprovoked assaults by native smokeshack supporters.

Despite the eagerness to blame McHale for Caledonia’s woes and target him for a criminal charge, Fantino testified on Nov 26/08 that prior to Dec 01/07 the OPP had never charged McHale with a crime because they had no evidence to do so. The OPP has never apologized for publicly accusing McHale and his supporters for the violence, and in fact, Fantino wrote a letter of reference for the native man who led the swarming attack that put McHale in hospital.

  • VoiceofCanada, Feb 04/10: Fantino’s sworn testimony vs. Fantino’s emails (exposes the extreme contradiction between Fantino’s allegations regarding McHale’s role in Caledonia violence and Fantino’s own testimony under oath at McHale’s preliminary hearing. On Nov 26/08 Fantino testified that prior to Dec 01/07 the OPP had not arrested McHale because they had no evidence to support a charge.)
  • Exhibit 38: Fantino emails, Dec 01-07/07 (early batch of key Fantino emails, rec’d 2008)
  • OPP email selection (incl. Exh 38) [PDF, 105p] (selection of key OPP emails, rec’d 2010)

Key emails

  • Dec 01/07, 1020 – Fantino email to Deputy Commissioner Chris Lewis: “at some point McHale has to go” [PDF] (protest began at 1000)  
  • Dec 01/07, 1213 – Det. Scott Wade email to Rick Barnum: Natives blocked road at 6th Line w/hydro tower; McHale “viciously beaten” [PDF]
  • Dec 01/07, 1330 – Det. Scott Wade email to Rick Barnum: Clyde Powless threatened police, assaulted McHale; “Emergency vehicles will be allowed thru Argyle Street. Residents of Sixth Line will be allowed to their homes.” [PDF
  • Dec 01/07, 1522 – Fantino email to Bob Goodall et al: get McHale, don’t be frustrated by “timid Crowns” who want a sure conviction [PDF]
  • Dec 01/07, 1624 – Goodall email to Supt. Ron Gentle: re “hidden gem” because McHale (falsely) alleged to have assaulted native woman [PDF]
  • Dec 01/07, 1750 – OPP news release blaming non-native victims for violence against them [PDF] (Fantino confirmed under oath he was talking about McHale & associates)
  • Dec 02/07, 0645 – Fantino email to Deputy Commissioner Chris Lewis: re Phone call with Deputy Minister [PDF]
  • Dec 02/07 1619 – Fantino email to Deputy Commissioner Chris Lewis: “feeble Crowns” [PDF]
  • Dec 02/07 2131 – Fantino email to Deputy Commissioner Chris Lewis: get McHale; “don’t…get bogged down with legal nuances” [PDF]
  • Dec 03/07, 1951 – Deputy Commissioner Chris Lewis email to Supt. Ron Gentle: Fantino wants McHale charge rushed [PDF]
  • Dec 03/07, 2137-2328 – Deputy Commissioner Chris Lewis exchange w/Supt. Ron Gentle: McHale must be charged to avoid native backlash [PDF] (this is the evidence Justice of Peace relied on to issue Obstructing Justice charges against Lewis & Gentle.)
  • Dec 07/07, 1141 – Deputy Commissioner Chris Lewis email to Supt. Gentle & Cain: re Fantino’s ability to keep Deputy Minister informed [PDF]
  • Dec 04/08 – Fantino letter of reference to Court for Clyde Powless, man who led swarming attack on McHale on Dec 01/07 [PDF]

Background

Obstructing justice charges vs. OPP officers involved in McHale case

Key Media Reports

Other references

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