OPP in Caledonia under fire, two cases go to court

By Marissa Nelson
The Hamilton Spectator
Apr 20, 2007

Critics of the OPP in Caledonia are heading to court in two separate cases.

Hamilton police officer David Hartless, gagged by his boss after OPP Commissioner Julian Fantino complained, has filed a Charter of Rights challenge.

Gary McHale, a Richmond Hill man described by police as an "outside agitator," is facing a $7.2-million lawsuit filed against him by 22 OPP officers who say they were defamed on his website.

Hartless has criticized both the OPP and the provincial government over the handling of the native standoff in Caledonia, which is located a stone's throw from his back yard.

Hartless argues that an order which he received from his boss, preventing him from sending e-mails about the Caledonia situation, contravenes his rights.

However, since Hartless filed the challenge April 10, Hamilton police have rescinded the gag order, but the legal battle will continue.

John Findlay, Hartless's lawyer, said they are still looking for a declaration that the order, issued by Deputy Police Chief Ken Leendertse, contravened the Charter of Rights and for the costs of the application to be paid by the force.

"We think it's important to establish it wasn't a valid order in the first place," Findlay said.

Hartless wasn't available to comment yesterday, but he has sent many politicians and local news organizations a letter this week advertising a demonstration May 2.

The rally will be at Queen's Park after protesters drive slowly from Haldimand County.

"We will not allow it to be forgotten or placed onto the back burner," the letter says.

Hartless's case will be back in court April 30 in Cayuga.

Hamilton police wouldn't comment on the matter, because Hartless is still being investigated for dishonourable conduct under the Police Act because of Fantino's complaint against him.

McHale, who has often criticized the OPP on his website, is facing a legal battle after 22 OPP officers filed a $7.2-million defamation suit against him. That suit is financed by the Ontario Provincial Police Association.

"They're trying to silence us," McHale said.

He said he is "exploring" the possibility of a countersuit.

McHale has already filed his own suit against the OPP Association and its president for defamation, seeking $450,000 in damages.

Findlay, who also represents McHale, said $7.2 million is "quite a substantial amount more" than his client is worth.

McHale has had an apology posted on his website for some time.

It says in part, "I unreservedly apologize to each officer whose picture has been posted on this website and who was not involved in the prevention of the exercise of my rights under the Canadian Charter of Rights and Freedoms for any harm, embarrassment or ridicule that they may have suffered as a result."

McHale has held several rallies in town during which he attempts to fly a Canadian flag on a utility pole opposite the disputed property.

The suit filed by 20 constables and two sergeants claims $325,000 in damages for each.

"They are right in the middle of a difficult problem. It's not a problem of their making," said Ian Roland, the officers' lawyer.

The court documents say, in part, that McHale defamed them by saying that the officers:

* had breached their oath of office;

* were guilty of misconduct;

* stood by and did nothing while people were attacked;

* violated the Charter of Rights;

* performed their duties in a racist manner.