UPDATED Feb 19/11
1. ‘MISFEASANCE OF PUBLIC OFFICE’
A. Key Negotiation Documents
- Key Negotiation Documents, 2006: [PDF, 43p, 29.5MB] Includes May 02/06 Six Nations website screen capture showing demands that gov’t intervene to drop criminal charges & promise not to call in Cdn Forces. On May 03/06 former Minister of Community Safety & Correctional Services Monte Kwinter sent a letter to Six Nations informing them he had notified his federal counterpart that he was NOT calling in the military to protect Caledonia from native militants. Also includes documents related to land transfers and other offers to 6N during the attempts to stop the occupation. Etc.
- Monte Kwinter (Minister, Community Safety & Correctional Services) letter to Six Nations, May 03/06: Cdn Forces will not be called in to protect Caledonia from native protesters [PDF, 1p]
B. Allegations by Caledonia Class Action (certifed 2010, awaiting trial)
- Caledonia Class Action, Superior Court, Feb 08/10: Certification Order w/Schedule 1 – ‘Fresh As Amended Statement of Claim’ [PDF, 61p]
- Caledonia Class Action: Causes of Action chart [PDF (from Supplementary Factum, Oct 08/09, p17, clause 37)]
- Caledonia Class Action website: http://www.caledoniaclassaction.com/
Excerpts from Caledonia Class Action ‘Fresh As Amended Statement of Claim’
(Schedule 1 to Certification Order, Feb 08/10 [PDF, 61p])
[p41, clauses 73-80, Minister of Transportation]
(Harinder Takhar, Oct 23/06-May 23/06; Donna Cansfield, May 23/06-Oct 30/06)
Nuisance and Misfeasance of Public Office by Ministers of the Province of Ontario
78. The Minister of Transportation knew that allowing the OPP to block Highway 6 and allowing the protestors to occupy Highway 6 was in violation of his statutory obligations under the Public Transportation and Highway Improvement Act.
[p42, paras 81-86 re Minister of Aboriginal Affairs]
(David Ramsay, June 29/05-Oct 30/07)
81. The Minister for Aboriginal Affairs, David Ramsay, in an agreement with the Haudenosaunee Six Nations Confederacy Council, made on or about April 21, 2006, agreed not to proceed any further with any criminal charges arising from the intervention by the OPP on April 20, 2006.
82. The Minister of Aboriginal Affairs knew that the agreement referred to in paragraph 81 was outside of his authority and that it improperly interfered with the lawful duties of police officers of the OPP, the duties of the Defendants, Commissioner Boniface and Inspector Haggith and the duties and obligations of the Attorney General of Ontario.
83. The Minister of Aboriginal Affairs knew that the promise not to prosecute the protesters would cause financial harm to business and property owners, specifically the members of the Caledonia Business Class and the Property Occupiers Class.
[p43, paras 87-90 re Attorney General]
(Michael Bryant, Oct 23/03-Oct 30/07)
87. The Plaintiffs plead that agreements made by the Minister of Aboriginal Affairs, as set out in paragraphs 81 and 84 above, were made with the knowledge, consent and acquiescence of the Attorney General of Ontario.
88. The Attorney General of Ontario knew that the agreements made by the Minister of Aboriginal Affairs, as set out in paragraphs 81 and 84, were outside the statutory authority of the Minister of Aboriginal Affairs and knew that his consent and acquiescence to these agreements constituted a violation of s. 5(b) of the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, as an administration of public affairs that is contrary to law.
89. The Attorney General knew that the promise not to prosecute the protestors would cause financial harm to the contractors, business and property owners, specifically the members of the Caledonia Business Class and the Property Occupiers Class.
[p44, paras 91-96 re Minister of Community Safety & Correctional Services]
(Monte Kwinter, Oct 02/03-Sept 10/07)
92. On May 3, 2006, the Minister of Community Safety and Correctional Services, Monte Kwinter, provided a written undertaking to the Haudenosaunee Six Nations Confederacy Council that he would not ask the federal government to provide military support to a police force in Ontario in accordance with a protocaol that was established between the Province of Ontario and the Government of Canada.
93. The Minister of Community Safety and Correctional Services knew that the undertaking given by him, as set out in paragraph 92, was in excess of his authority as Minister of Community Safety and Correctional Services and wrongful interference with the lawful duties of the Defendants, Commissioner Boniface and Inspector Haggith.
94. The Minister of Community Safety and Correctional Services has failed to ensure that the OPP has sufficient police services to carry out the following:
a. the enforcement of the Orders of The Honourable Mr. Justice Matheson dated March 3, 2006 and the Orders of The Honourable Mr. Justice Marshall dated March 9, 17, and 28, 2006, and
b. to ensure that Argyle Street and Highway 6 were free of nuisance and open for passage.
95. The Minister of Community Safety and Correctional Services knew that the provision of the undertaking, referred to in paragraph 92 above, and the failure on his part to carry out his duties, as set out in subparagraph 94.a., would cause financial harm to the contractors, businesses and property occupiers, specifically the members of the Caledonia Business Class, the Property Occupiers Class and the Contractors Class.
C. Allegations by Brown-Chatwell suit (settled Dec 2009)
The allegations in the now-settled lawsuit by Dave Brown and Dana Chatwell, who lived beside the occupied Douglas Creek Estates, are very similar to the Class Action but they are made on behalf of one specific family rather than the hundreds included in the Class Action. We have highlighted only the clauses which differ markedly and/or are not included in the Class Action.
- Brown-Chatwell, Superior Court of Ontario, July 18/07: Statement of Claim [PDF, 54p]
- see also: VoiceofCanada, Dec 22/09: Brown-Chatwell trial: crimes against democracy
Excerpts from Brown-Chatwell Statement of Claim (settled Dec 2009)
[page 23, paras 55-57]
Agreements Not to Enforce Orders, Prosecute or Obtain Assistance
55. Aside from the attendance on April 20, 2006, the O.P.P. has taken no further steps to remove the protestors from Douglas Creek Estates. The Plaintiffs plead that Commissioner Boniface, and other responsible senior agents or servants or officers of the Crown, directed that no steps be taken by the O.P.P. to remove the protestors from Douglas Creek Estates.
[page 47, paras 113-123]
Misfeasance in Public Office
115. Under s. 3(2) of the Police Services Act, the Solicitor General for Ontario, now the Minister of Community Safety and Correctional Services, has a duty to ensure that adequate and effective police services are provided at the municipal and provincial levels. The Minister has failed to ensure that the O.P.P. has sufficient police services to carry out the following:
a. the enforcement of the Orders of Justice Barry H. Matheson dated March 3, 2006 and the Orders of Justice T. David Marshall dated March 9, 17 and 28, 2006;
b. to ensure that Argyle Street south was free of nuisance and open for passage; and
c. protect the Plaintiffs.
118. The Plaintiffs plead that the O.P.P., Commissioners Boniface and Fantino, and Inspector Haggith have not exercised their discretion but have abdicated their responsibilities and duties and have simply complied with the direction of politicians, of native protestors and of the Haudenosaunee Six Nations Confederacy Council or other native groups.
119. The Minister of Community Safety and Correctional Services, the Minister of Aboriginal Affairs, the Attorney General, and the O.P.P. engaged in a course of conduct which actively protected and condoned unlawful and criminal conduct and activity of the protestors and failed to protect the rights of the Plaintiffs as citizens of Canada, Ontario and Haldimand County, denying the Plaintiffs the equal protection theat they are entitled to under the law in a free and democratic society. Said conduct constitutes misfeasance in public office.
121. The conduct of Commissioner Boniface, Commissioner Fantino, Inspector Haggith, the Minister of Aboriginal Affairs, the Minister of Community Safety and Correctional Services, the Attorney General, and the O.P.P. as pleaded herein was deliberate conduct in the capacity as public officers which was known to them to be inconsistent with the obligations of their office and which constituted a breach of statutory provisions for improper purposes or motives. The improper purposes or motives include political gain, designing and implementing plans for police work which protects unlawful conduct, a desire to see the Plaintiffs removed from the area of Douglas Creek Estates, and because the Plaintiffs refused to comply with the desires and wishes of the said public officers, among other things.
122. Commissioner Boniface, Commissioner Fantino, Inspector Haggith, the Minister of Aboriginal Affairs, the Minister of Community Safety and Correctional Services, and the Attorney General and the officers of the O.P.P. were aware that their conduct was likely to harm the Plaintiffs. They acted with conscious disregard for the Plaintiffs and their conduct contributed to the damages suffered by the Plaintiffs.
2. FANTINO COPIES THREE PEOPLE IN PREMIER’S OFFICE RE THREAT EMAIL TO HALDIMAND COUNCIL
Fantino copied 3 people in premier’s office with an email threatening Haldimand Council if it showed support for Gary McHale and followers:
- Julian Fantino, April 07/07: threatening email to Haldimand Council, April 07/07 [PDF]
1. Tony Dean – Secretary of the Cabinet
2. Chris Morley – Press Secretary (now Chief of Staff)
3. Peter Wilkinson – Former Chief of Staff
Key documents – FantinoGate News Conference, Queen’s Park, April 17/07
- Gary McHale: Intro [PDF]
- Gary McHale: Link between Fantino’s email & Mr. McGuinty [PDF, 3p]
- Gary McHale: Conclusion [PDF]
- Gary McHale, April 16/06: OCCPS complaint to Minister of Community Safety & Correctional Services [PDF, 14p]
- Merlyn Kinrade [PDF]
- Merlyn Kinrade, April 16/07: OCCPS complaint to Minister of Community Safety & Correctional Services [PDF, 10p]
- SEE ALSO: CaledoniaWakeUpCall.com feature: FantinoGate (charge of ‘Influencing Municipal Official’ vs. Fantino issued by Superior Court, Dec 31/09, dropped by Crown)
3. MINISTER KNEW ABOUT OBSTRUCTING JUSTICE ALLEGATIONS VS. SENIOR OPP OFFICERS
Minister of Community Safety & Correctional Services Minister Rick Bartolucci knew as early as May 2008 that allegations of criminal behaviour were being made against Julian Fantino, well before Gary McHale had process for charges issued by the Court, but Bartolucci did not even bother to ask for the evidence.
- VoiceofCanada, March 17/10: Minister knew about OPP obstruction allegations in 2008
- see also: VoiceofCanada, March 16/10: Senior OPP officers charged w/Obstructing Justice in McHale case
- see also: VoiceofCanada, July 07/10: McGuinty appoints cop charged with Obstructing Justice as head of OPP
4. POLITICAL INTERFERENCE TO SILENCE NON-NATIVE ACTIVIST GARY MCHALE
A. Testimony by OPP Det. John Murray
Det. John Murray testified that “stakeholders” had approached the OPP about McHale’s role in “hindering” negotiations.
- CANACE: Journalists’ Quick Reference Evidence Guide [PDF, 9p] (see John Murray, p8 [para 55], quotes only)
- OPP Detective John Murray, Dec 14/07: Testimony at McHale bail hearing (para 55) [PDF, 70p] (full transcript)
It appears that the OPP took the politician’s complaints to heart. Shortly after OPP Commissioner Julian Fantino was appointed near the end of Oct 2006 he gave orders to target McHale even though he hadn’t committed a crime. OPP investigation report tells the backstory of his arrest on Dec 16/06:
- OPP Police Service Complaint investigation report, Oct 18/07: [PDF, 40p] Arrest of Gary McHale, Dec 16/06. Fantino ordered McHale targeted; McHale held overnight w/out charge; OPP asked Crown to lay phony Mischief charge (refused); OPP didn’t know if what it did was even legal, but concludes it did nothing wrong.
Fantino orders victim of violence targeted again in 2007
On Dec 01/07 Fantino again ordered his officers to get McHale — who was sent to hospital after being swarmed, kicked and punched by Six Nations smokeshack supporters — charged with a crime, not because he was guilty, but to obtain bail restrictions to prevent him from entering Caledonia. He instructed his senior officers not to “get bogged down with legal nuances”:
- Caledonia Victims Project: R. v. Gary McHale (Counselling Mischief Not Committed) [LINK]
B. Deputy Minister & Fantino in Contact re McHale charge
OPP emails show that Fantino was keeping the Deputy Minister of Community Safety 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 who followed Fantino’s orders to target him for a charge.
- VoiceofCanada, April 19/10: McHale seeks court order for deputy minister emails
- see also: Caledonia Victims Project: R. v. Gary McHale (Counselling Mischief Not Committed) [LINK]
5. POLITICAL INTERFERENCE TO SILENCE CALEDONIA RESIDENT/HPS OFFICER DAVE HARTLESS
Repeated contacts by Sr. Caledonia Negotiator John Nolan with OPP regarding criticism of Premier McGuinty by Caledonia resident & Hamilton Police Service officer Dave Hartless resulted in OPP complaints to the HPS. One of those complaints was based on the Mr. Hartless’s mere association with activist Gary McHale – who had not been charged, let alone convicted of any crime in Caledonia:
- Sr. Negotiator John Nolan/OPP complaints vs. Hamilton Police officer Dave Hartless [PDF, 24p]
- Dave Hartless testimony, [PDF, 54p] (full transcript)
- see also: VoiceofCanada, July 07/07: OPP Email: Hartless complaint was OPP revenge for McHale association!
6. CABINET MINISTER MICHAEL BRYANT DENIGRATES NON-NATIVE HUMAN RIGHTS COMPLAINANTS
It is inconceivable that any politician, let alone a cabinet minister would denigrate a black or native citizen for filing a human rights complaint, but the former Minister of Aboriginal Affairs believed that non-natives had no right to file a complaint about racial policing during a land claim dispute:
- VoiceofCanada, April 10/08: Bryant’s attack on VoC Human Rights complaint
- CaledoniaWakeUpCall.com feature: Vandermaas complaint to Ontario Human Rights Commission
7. ONTARIO’S ILLEGAL ‘PEACEKEEPING’ MISSION ON CANADIAN SOIL
Some of the best evidence that the McGuinty government enacted a policy of racial policing comes from its repeated assertions that it is following the recommendations of the Ipperwash Inquiry (a McGuinty creation).
Both the Premier and the former Commissioner of the OPP Julian Fantino have referred to the role of police in Caledonia as ‘peacekeepers.’ On May 02/07 the Premier joked on TV about having to issue blue helmets to the OPP ‘peacekeepers.’
- [VIDEO, McGuinty stmt begins at 2:40].
On Nov 09/07 the Hamilton Spectator published a transcript of an interview with Julian Fantino in which he describes the role of police in Caledonia with one word: “Peacekeeping.” (LINK, see Q#8)
The Ipperwash Inquiry includes four recommendations related to implementing ‘peacekeeping’ as government and police policy:
- The Ipperwash Inquiry, Recommendations, Vol 2 (Policy Analysis): Recommendations re ‘Peacekeeping’ policies [PDF]
- Inquiry Download: [LINK, see #38, 45, 47, 49]
Several order the OPP, other police forces and the Minister of Community Safety to enact ‘peacekeeping’ policies. Number 47, for example, goes so far as to recommend that the Attorney General should be involved in injunction proceedings brought by private landowners against illegal occupations.
A most revealing example of the ‘peacekeeping’ policy in action occurred on May 12/08 at the site of an illegal occupation site in Cayuga, Ontario. The OPP refused to remove trespassers even after they attempted to extort money from the builders, so they asked us to gather evidence to lay criminal charges under the private prosecution provisions of the Criminal Code. We filmed the OPP site commander Sgt. Michaud explaining to us the OPP position that treaty rights were involved, that Land Title deeds were not sufficient proof of ownership for law enforcement purposes, and that he was taking instructions from the Crown. Former OPP Commissioner Julian Fantino was shown this video in court and testified that he fully supported the officer.
Despite the OPP’s assertion that they were justified in not enforcing the law Mr. McHale provided sufficient evidence to convince a Justice of the Peace to issue process for 9 charges of Extortion, Intimidation and Mischief against the two ringleaders. The Crown dropped all the charges, then re-laid 2 Mischief charges of their own which they later dropped as well.
The builders were also granted an injunction in which the Superior Court judge rebuked the OPP for abusing its power and authority by refusing to aid a ‘class’ of owner and for threatening to arrest the owners if they exercised their right to remove the trespassers themselves and violence erupted:
From [1536412 Ontario Ltd v. Haudenosaunee Confederacy Chiefs Council … 2008 CanLII 28041 (ON S.C.)] [LINK]
 The remaining defendants’ [native occupiers] resort to self-help, taken with the authorities’ refusal to defend the plaintiff’s property rights, has put the plaintiff in a most unfair position. The same government that advises the plaintiff not to pay extra-governmental development fees refuses to enforce its property rights and threatens to arrest its agents if they try to enforce these rights on their own.
 I would be the last person to interfere with the proper exercise of discretion by the
authorities. I do think that it might be helpful to clear up some misapprehensions that they appear to have.
1. The police have the right to remove unwanted persons from private property at the request of the owner with or without an injunction.
2. The police have the right to use their discretion in the enforcement of the law and private property rights. A blanket refusal to assist a property owner or a class of property owners, however, would be an abuse of that right.
3. The police have no right to prevent the plaintiffs from acting within their rights under s.41 of the Criminal Code. Their warning to the plaintiff that they would arrest anyone who is involved in a physical confrontation, regardless of the circumstances, is an abuse of the power conferred on them by s.31 of the Criminal Code.
The OPP and Ontario Government was undeterred in their support of native protesters even after the Court rebuked them for their illegal targeting of innocent non-natives. In April 2009, one year later, a builder in Hagersville was also forced to obtain an injunction to remove occupiers after the police refused to assist him. The judge stated that the occupiers had threatened the court and were engaged in “nuisance, trespass, extortion, intimidation and inducing breach of contract.” [LINK]
To date, not one politician or journalist, to the best of our knowledge, has ever confronted the government or OPP with these obvious questions about the justification and legal support for their ‘peacekeeping’ policies:
- Why do Canadian citizens need a peacekeeping mission instead of law enforcement?
- Who has the authority to authorize a peacekeeping mission on Canadian soil?
- What are the legal precedents and/or authority for substituting a peacekeeping policy in lieu of the full protections of the Charter of Rights and Ontario’s Police Services Act during an aboriginal land claim?
- UN Video: “Peace is a full time job…” (Actor George Clooney) [VIDEO, 1:01]
Caledonia Victims Project founder Mark Vandermaas and associate Caledonia resident Merlyn Kinrade are former UN peacekeepers. They wrote to the Premier on May 08/07 to help him understand that joking about ‘blue helmets’ in the province was most inappropriate, and that peacekeeping is not a more noble or sophisticated form of policing by highly trained law enforcement officers in stable democracies, but rather a limited tool employing primarily soldiers trained to kill in order to prevent further loss of life in the aftermath of war or in failed states where the rule of law has broken down.
This should be obvious by reviewing current UN Peacekeeping Missions as of Dec 31/10:
UNTSO – UN Truce Supervision Organization UNMIL – United Nations Mission in Liberia
UNMOGIP – UN Military Observer Group in India and Pakistan
UNOCI – United Nations Operation in Côte d’Ivoire
UNFICYP – UN Peacekeeping Force in Cyprus
MINUSTAH – United Nations Stabilization Mission in Haiti
UNDOF – UN Disengagement Observer Force
UNMIS – United Nations Mission in the Sudan
UNIFIL – UN Interim Force in Lebanon
UNMIT – United Nations Integrated Mission in Timor-Leste
MINURSO – UN Mission for the Referendum in Western Sahara
UNAMID – African Union-United Nations Hybrid Operation in Darfur
UNMIK – UN Interim Administration Mission in Kosovo
MINURCAT – United Nations Mission in the Central African Republic and Chad
MONUSCO – United Nations Organization Stabilization Mission in the Democratic Republic of the Congo
- UN Department of Peacekeeping Operations, Dec 31/10: UN Peacekeeping Operations [PDF]
From the United Nations Department of Peacekeeping Operations:
“UN peacekeeping provides essential security and support to millions of people as well as fragile institutions emerging from conflict. Peacekeepers deploy to war-torn regions where no one else is willing or able to go and prevent conflict from returning or escalating.”
- UN DPKO: ‘Background Note: United Nations Peacekeeping’ [PDF]
“Today’s multidimensional peacekeeping operations are called upon not only to maintain peace and security, but also to facilitate the political process, protect civilians, assist in the disarmament, demobilization and reintegration of former combatants; support the organization of elections, protect and promote human rights and assist in restoring the rule of law.”
- UN DPKO: ‘What is Peacekeeping?’
Rule of law assistance is an essential tool that the United Nations relies upon to help maintain peace and security around the world.
Rule of Law is the legal and political framework under which all persons and institutions, including the State itself, are accountable. Establishing respect for the rule of law is fundamental to achieving a durable peace in the aftermath of conflict.
Laws need to be publicly promulgated, equally enforced and independently adjudicated and be consistent with international human rights norms and standards. Peacekeeping works to strengthen police, justice and corrections institutions, as well as the institutions that can hold them accountable.
Since 1999, all major peacekeeping operations, and many special political missions, have had provisions to work with the host country to strengthen the rule of law.
- UN DPKO: ‘Rule of Law‘
Civilians have increasingly become the victims of armed conflict. In response, the Security Council has mandated a number of peacekeeping operations with the protection of civilians (POC) from physical violence. This challenging mandate is often the yardstick by which the international community, and those whom we endeavour to protect, judge our worth as peacekeepers.
We often protect civilians in harsh conditions, with limited or insufficient resources, and with partners who sometimes lack the will or capacity to do their part.
Peacekeeping operations often deploy amidst the unrealistic expectation that they will be able to protect all civilians at all times.
Improving protection of civilians in the context of UN Peacekeeping operations must be addressed holistically, with a view to improving the performance of all actors who share a stake in protecting innocent civilians from physical violence.
- UN DPKO: ‘Protection of Civilians’
Obviously, then, peacekeeping missions are not deployed to destroy the rule of law and violate human rights in stable democracies via policies of withholding law enforcement protection from innocents based on the race or grievances of their victimizers.
The terrible human and economic costs ($4.1B) notwithstanding, the mere citing of peacekeeping as the role of police in Caledonia and the policy of government is the surest evidence that not only did the rule of law break down, but that a willful decision was made decided to deny Canadian citizens protection under the law to which they are entitled. The use of the term ‘peacekeeping’ must signify differentiated policing from the duties mandated under the PSA, else why apply the term at all?
The illegality of this so-called peacekeeping mission is further highlighted by the fact that on May 03/06 the Minister of Community Safety and Correctional Services Monte Kwinter sent a letter to Six Nations (in response to their demands for immunity from law enforcement) in which he informed them, “I wish to advise you that I have sent a letter to my federal counterpart where I have specifically stated that I am not asking for military support from the federal government in relation to outstanding matters concerning the Douglas Creek lands in Caledonia.” Even if the Ontario government did have the lawful authority to substitute a ‘peacekeeping’ mission for the Charter of Rights and Police Services Act, clearly the Ontario government felt it had no need for aid to the civil power, hence, how could a peacekeeping mission possibly be justified?
Since the ‘peacekeeping’ policies are only in play during Aboriginal land claim disputes, the policies clearly, therefore, are designed to be racially based. The evidence is indisputable that these policies were followed to the detriment of non-natives, and neither the OPP nor Ontario government have renounced them.
Links & References
- UN Department of Peacekeeping Operations, Jan 2011: ‘Background Note: United Nations Peacekeeping’ [PDF]
- UN Department of Peacekeeping Operations: ‘What is Peacekeeping?’
- UN Department of Peacekeeping Operations: Rule of Law
- UN DPKO: ‘Protection of Civilians’
- UN Department of Peacekeeping Operations: United Nations Peacekeeping Operations – Principles & Guidelines [PDF, 53p]
- UN Department of Peacekeeping Operations, Dec 31/10: UN Peacekeeping Operations [PDF]
- UN Video: “Peace is a full time job…” (Actor George Clooney) [VIDEO, 1:01]
8. OPP GUIDE FOR RACIAL POLICING: THE ‘FRAMEWORK FOR PREPAREDNESS FOR ABORIGINAL CRITICAL INCIDENTS’
The ‘Framework For Police Preparedness For Aboriginal Critical Incidents’ is an OPP Policy statement passed into practice by the OPP in 2001 – prior to the Ipperwash Inquiry, but was fully endorsed by the Inquiry as part of it’s ‘peacekeeping’ model. [PDF,11 pages]
OPP Officers are trained to follow this policy which clearly tells officers to treat native protesters differently than all other citizens. One OPP officer testified, in a criminal case, that he believes he cannot treat native and non-native people who he witnesses committing a crime the same. He has testified that he has heard OPP officers being asked to identify the race of the person committing the offence before taking any action. If the person is native then the officer is to allow the native to leave without any interference. One example of how the Framework targets non-natives while allowing natives to commit serious crimes is demonstrated on Dec 01/07.
An OPP officer testified in court that he had been hit twice by a vehicle being driven by a native person trying to force his way through a road barricade at a protest. The man only stopped after the officer threatened to pull his gun if the driver tried a third time to hit him with his vehicle. According to his notes, the passenger then went to a nearby (illegal) smokeshack and returned with 10-13 other natives who then pushed the officer and his partner around. Members of the OPP’s ART team (Aboriginal Relations Team) arrived on the scene and escorted the native driver through the police line and let him go. A year later the officer still wanted the driver charged, however, investigators into the violence that erupted when native smokeshack supporters attacked non-natives (see below) had still not followed up his report with an interview about this assault.
In contrast to the treatment of native protesters, former Commissioner Fantino and other senior officers ordered their officers not to “get bogged down with legal nuances” in order to find a way to arrest Mr. McHale. For 30 months the Crown prosecuted Mr. McHale on a charge of Counselling Mischief Not Committed until the Crown finally dropped the charge (after McHale convinced a judge to issue process for charges of Obstructing Justice against two of Fantino’s senior officers for their role in carrying out his orders).
It was alleged that Mr. McHale had suggested that someone move their car across the road which they did not do. The same day, however, native protesters Clyde Powless and Jesse Porter actually did move a hydro tower across the highway and blocked it for several hours. Mr. Powless was then caught on video leading off a violent swarming attack against Mr. McHale which caused two non-natives to be sent to the hospital.
Ex-Commissioner Fantino and Supt. John Cain both provided letters of reference in support of Powless and Porter to be used in court. Fantino also ordered his officers to drop a charge against Clyde Powless for assaulting a police officer. A Superior Court judge later ordered Clyde Powless to be charged with assaulting a police officer, obstructing police, being a member of a riot, and assault causing bodily harm. Before the Superior Court had even ordered the charges to be issued the Crown informed the court they would stay all charges against him.
It has become common place for the OPP and the Crown’s office to work hand-in-hand to support native protesters. Crown attorneys have attended OPP meetings where the OPP are creating plans to arrest non-native people they know have committed no crime, and the Crown lawyers have been caught supporting such illegal actions.
9. RACIAL POLICING: Confirmed by OPPA President Karl Walsh
At one moment the residents of Haldimand County believed their rights were protected under the Charter and the next they came to realize that their rights were nothing more than a theoretical guarantee written on paper which could be disregarded at the whim of Ontario politicians and police with little consequence.
The evidence – the most damning of which comes from the president of the Ontario Provincial Police Association Karl Walsh – overwhelmingly proves that the OPP did refuse to enforce the rule of law, and that they did so based on race and were following orders from senior officers. Mr. Walsh is quoted in Helpless:
p143: “I got numerous calls from members [OPP Officers] who will tell you that they were petrified of the repercussions of acting… they’ve got all these examples of people on the ground who have already been persecuted, disciplined, had repercussions career-wise…
p222: I still don’t understand why we took different approaches to law enforcement in Caledonia… I can’t forgive them for a lot of the approaches they took to this and I think numerous officers got unnecessarily injured, I think people from the general public got unnecessarily injured, I think everybody that was involved in this suffered injuries that could have been avoided had they just stuck to their training, stuck to their policies and stuck to the law. You know, the law doesn’t discern colour of skin or ethnic background, and it’s not supposed to. Justice is supposed to be blind.”
p222: Walsh describes the Caledonia approach as a “policy stance that had never been taken before…And what you found was that, unnecessarily, unfairly, frontline officers by and large were being held accountable for the actions they were directed to do, which is completely something that should never happen. There should never be any incident of this magnitude where a frontline officer is called to speak as to why they decided to do A or B, knowing that A or B has been dictated by extremely high levels.”
Also from Helpless:
p34: Almost overnight, officers stopping cars without licence plates or with invalid tags, or making other arrests, found themselves being asked, when they first called in the information over the radio, a single shocking question: “Are the occupants white or non-white?” If the answer was “non-white,” meaning native, the reply from the command post would be, “Get their names, disengage and if there are any charges to be laid, you can lay them later.” [National Post Helpless excerpt #1, Nov 16/10: Christie Blatchford: If the suspect wasn’t white, the police learned to walk away]
Non-native citizens were denied security of the person, freedom of speech, freedom of association, and the right to be treated equally before the law.
Constable Jeffrey Bird was the first, long before Helpless was released in October 2010, to confirm through court testimony that racial policing was being practiced by the OPP. He did so on xxxxx during Gary McHale’s preliminary hearing into a charge of Counselling Mischief Not Committed.
ne 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]
9. THE IPPERWASH INQUIRY: Shutting out non-native victims of Aboriginal violence
When the Ontario government has been criticized for its handling of the Caledonia crisis it has repeatedly justified its actions by declaring that the government is following the recommendations of the Ipperwash Inquiry.
It is commonly – and falsely – believed that the Ipperwash Inquiry studied the issue of preventing violence during aboriginal land claims, a reasonable assumption given that it was sitting during the height of the violence in Caledonia. Unfortunately, it did not. The inquiry only examined the prevention of police violence against aboriginal protesters; it did not study the issue of native violence against innocent residents even though Ipperwash non-natives were subject to a land claim against their homes filed in 1992 which was the beginning of a reign of terror against them nearly identical to that waged against Caledonia’s victims.
This shocking, chronological history of Ipperwash events from the non-native perspective was submitted to the Ipperwash Inquiry by longtime community leader Mary-Lou LaPratte:
- Mary-Lou LaPratte, June 23/04: Chronology w/affidavit [PDF, 32p]
Unfortunately, the Inquiry chose not to publish the only submission (that we are aware of) related to violence against non-native residents with the other, numerous submissions related to the prevention of violence against native protesters which were published. This was consistent with the inquiry’s decision to exclude non-native victims and their evidence. Three statistics are illuminating:
1. Out of 139 witnesses who testified not one was a non-native resident;
2. During the three years the inquiry was in session non-natives were granted a total of 90 minutes with the Commissioner which took place in a single townhall meeting on June 21/06 (at the height of the violence in Caledonia);
3. Out of 100 recommendations not one is specifically directed at the prevention of aboriginal violence against residents.
In a blunt March 13/96 victim impact statement that was not entered into evidence, the Chief Administrative Officer for Ipperwash stated the following:
“DND, through it [sic] failure to remove illegal occupiers, failure to permit the law to be upheld, failure to protect its boundaries, failure to ensure safety at one of its military facilities and ultimate retreat from and desertion of Camp Ipperwash in the middle of the night has created a situation that led to the death of at least one individual, the takeover and destruction of public property, terrorizing of a municipality, destruction of property values, and the tearing apart of a community and its way of life.
“Repeatedly, over the two years preceding the fatal shooting of Dudley George, town officials advised provincial and federal government cabinet ministers, politicians and bureaucrats of the real potential for injury and death in the area. Unfortunately, unless real progress towards a solution commences immediately, we feel that more injuries and deaths will occur.”
The failures of the Ipperwash Inquiry, and the deliberate misapplication of its recommendations by the Ontario government are summarized in this fully-cited, two part series authored by Mr. McHale, Mr. Vandermaas and Ipperwash community leader Mary-Lou LaPratte which was published in the Caledonia-based Regional News: [PDF, 10p].
The evidence obtained by Christie Blatchford from the president of the Ontario Provincial Police Association Karl Walsh for her book Helpless: Caledonia’s Nightmare of Fear and Anarchy, And How The Law Failed All of Us irrefutably proves that senior OPP officers ordered their subordinates to conduct racial policing in accordance with the Framework – in full accordance with the ‘peacekeeping’ recommendations the Ontario government repeatedly claims to be following when it is criticized by Opposition members.
Furthermore, the evidence of racial bias and the terrible consequences of it were on display for all to see – including for the McGuinty government. Non-natives filed a number of Police Services Act complaints and court actions to address racist policing and the illegal conduct of OPP officers. The government’s lawyers dropped every charge against OPP officers and every police complaint was dismissed. When Julian Fantino stepped down as commissioner of the OPP, the government appointed a man charged with Obstructing Justice as its choice for his replacement. Commissioner Fantino himself had a charge of Influencing Municipal Official dropped by the Crown after Premier McGuinty attempted to downplay the seriousness of the charge. The government also renewed Fantino’s contract until he left the OPP in 2010.
The Minister of Community Safety & Correctional Services (former and current) was made aware of racial policing concerns, and allegations of criminal conduct against Julian Fantino but refused to act. The current minister refused even to ask for evidence to support the allegations when he was made aware of them in 2008.
The ‘smoking gun’ that made Race-Based Policing a McGuinty policy directive towards the OPP has been hidden in plain sight for all to see — in the ‘peacekeeping’ policy recommendations of the Ipperwash Inquiry that the McGuinty government has repeatedly claimed to be following, recommendations made by a McGuinty-appointed inquiry that did not allow the issue of native violence against innocents to be even considered when formulating them. The government and the OPP claim the mission in Caledonia is ‘peacekeeping,’ and these peacekeeping policies are only applied when Aboriginals are involved – and always to the detriment of non-natives.
The McGuinty government has perpetrated, in our opinion, ‘crimes against democracy’ by knowingly using an illegal ‘peacekeeping’ mission to accomplish what it knew it could never do through an amendment to the Police Services Act or the Charter: the deliberate and illegal suspension of the rights of thousands of non-native citizens.