Ontario Court of Appeal unanimous in upholding McHale v. R., 2009

UPDATED June 10/10 — The Court of Appeal for Ontario has just released a unanimous decision upholding Justice Marshall’s decision in McHale v. R., 2009 which was appealed by the Crown after Marshall ruled it did not have the authority to withdraw charges against several government employees before McHale could present the evidence.

Justice Marshall’s decision in McHale v. R., 2009 upheld

The decision upholds a ruling by Justice Marshall in which he emphasized the importance of the case McHale was bringing before the Court by quoting from the Law Reform Commission of Canada and thinkers such as Glanville Williams and Alexander Hamilton, one of the fathers of the U.S. constitution:

[32] The paper [Law Reform Commission of Canada Working Paper 52], at page 21, quoted Glanville Williams: “[t]he power of private prosecutions is undoubtedly right and necessary in that it enables the citizen to bring even the police or Government officials before the criminal courts, where the government itself is unwilling to make the first move.”

[45] This case raises the important issue of a citizen’s right to lay criminal informations against public officials and for those informations to be heard before an independent judge. This is a long and hard fought right.”

[46] Indeed, Alexander Hamilton wrote in The Federalist Papers at page 78: “Considerate men…ought to prize whatever will tend to…fortify that temper in the courts (independence); as no one can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today.”

Justice for Caledonia’s victims

Thanks to Gary McHale, the Court of Appeal for Ontario, and now-deceased Justice David Marshall, some government officials may now face prosecution for their role in allowing innocents in Caledonia to be victimized for a political agenda.

The ruling leaves open the possiblity that the Crown may choose, instead, to stay the charges rather than withdraw them, but any decision to do so will still be subject to judicial review. It is possible that this case will end up before the Supreme Court which already ruled in 1983 that the Crown could not stay a charge before the evidence was heard and a charge issued.

Democracy is a powerful tool – when citizens use it

As of today, McHale and CANACE have won three rulings in the Ontario Court before Justices of the Peace; four Orders of Mandamus rulings in Superior Court; and now, an important decision by the Court of Appeal.

These cases have resulted in criminal charges against two OPP officers for Mischief (helping native protesters to build a barricade to keep the lawful owner out of his Hagersville property); a charge of Influencing Municipal Official against OPP Commissioner Julian Fantino (threatening Haldimand Council); charges of Obstructing Justice against Fantino’s deputy commissioner Chris Lewis and Superintendent Ron Gentle (agreeing to charge McHale even though there was no evidence); and charges of Extortion, Intimidation and Mischief against two native protesters – Floyd & Ruby Montour – involved in illegal occupations.

McHale also successfully defended himself for two years against a trumped up charge of Counselling Mischief Not Committed, which was stayed just after the Obstructing Justice charges were laid, and just before he was scheduled to ask the Superior Court to order disclosure of the emails between the Deputy Minister, Community Safety & Correctional Services and the OPP Commissioner.

Vexatious no longer?

Whether it is our complaints to the Human Rights Commission; our defamation lawsuits against Fantino; or the prosecution of OPP officers, Attorney General lawyers have consistently accused McHale and me of being ‘vexatious’ and ‘frivolous’ in complaining against their racially-based practices, accusations that have persisted to this day. Perhaps the Court of Appeal decision will finally convince them to give up this smear tactic.

The ‘system’ works – if we don’t give up

When Gary McHale and I were in Calgary for the recent 2010 ‘New Directions in Aboriginal Policy’ forum at Mount Royal University, I pointed out his running shoes to one of our hosts and told her that she hadn’t lived until she watched a man with a reading/writing disability (that’s why McHale is such a poor speller), without a law degree, wearing the best shoes he could afford, go up against three government lawyers – and win.

If McHale has done nothing else, he and CANACE have proven that the system works – if we don’t give up.

Gary McHale on the rule of law

Readers may wish to check out Gary McHale’s presentation to the Calgary aboriginal policy forum, The Face of Aboriginal Sovereignty versus the Rule of Law in Caledonia. It can be viewed here:

Mark Vandermaas, Founder
Caledonia Victims Project


About Mark Vandermaas

I am founder of Israel Truth Week, and I'm the 'Liberate Israel Training Guy.' I train pro-Israel advocates in how to use Israel's land title deed-the Mandate For Palestine-as a powerful moral narrative to counter the false 'occupation' vilification. Also, founder of VoiceofCanada.ca and the Caledonia Victims Project.
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