The private prosecution approach

It seems to be working, but more money's needed

By Bill Jackson – The Regional

July 23, 2008

Gary McHale picked up a large binder with three inches of bound paper separated by ten tabs and dropped it on a table in front of a sparse gathering at a public meeting in Cayuga Monday night.

The loud thud was made by just a portion of the hard evidence that was necessary to lay criminal charges against well-known Six Nations protesters Floyd and Ruby Montour, who have been ordered to appear in court next month and answer to the charges including mischief, intimidation and extortion that were recently certified by a Justice of the Peace.

Yesterday Jeff Parkinson planned to submit evidence to lay criminal charges against two OPP officers who he said assisted aboriginal protesters to erect a blockade at a Hagersville housing development in 2007.

Because police refused to lay charges against many aboriginals in Caledonia during the past three years for numerous alleged crimes including terrorism, extortion, assault and attempted murder, members of the group Canadian Advocates for Charter Equality (CANACE) have taken it upon themselves to hold feet to the fire and obtain justice for all Canadians.

CANACE is an organization "for Canadians who want to lend their voice to one of the most important human rights struggles in our country's history: the struggle to restore and preserve the rule of law and equality before the law for all citizens irrespective of race, religion and national origin."

It was actually a retired Ontario Provincial Police officer who put up $1100 to incorporate the group which has also published a series of reports outlining the social and emotional costs of two tier justice that are making their way into public and political forums.

Thousands of crimes have been ignored by police during the past three years, McHale contends.

"As soon as you block a road and threaten somebody it's intimidation."

Unless you're going to a baseball game on Halloween, then wearing a mask and carrying a baseball bat through town is also a crime, he added.

An aboriginal arrested last week who participated in the Highway 6 bypass blockade earlier this year was charged with breach of recognizance and breach of probation, charges McHale said have nothing to do with blocking a provincial thruway.

Another aboriginal charged in connection with the beating of a local homebuilder in 2007 was also arrested recently while protesters responsible for the illegal land occupation where the assaults occurred still haven't been held accountable.

Sam Gaultieri, the contractor who suffered severe head injuries due to the beating was at Monday's meeting in support of CANADA along with his wife and brother.

McHale said that if all the charges related to the Stirling Street protest were laid, police would be looking at four to five charges for each of the 40-50 protesters who were on the site. That's what usually happens during biker and drug raids, he noted.

"Police discretion doesn't mean you don't lay charges."

CANACE plans to lay future charges against Six Nations Confederacy Chiefs for their role in such organized protests, as well as leaders of the Haudenosaunee Development Institute that has charged developers illegal fees up and down the Grand River watershed.

Last week, CANACE filed a total of 33 new charges against eight different individuals involved with illegal smoke shacks, illegal occupations and road blockades in Caledonia, Cayuga, Hagersville and Caledonia.

McHale said he hopes to help lay one charge of terrorism in relation to the bypass blockade last spring.

One definition of terrorism under the Canadian Criminal Code is trying to force a government agency to not do what they're supposed to do, he argued. Protesters who blocked the bypass in Caledonia earlier this year for three days id so to stop OPP action against aboriginal protesters in Deseronto.

Laying one charge of terrorism is strategic because if it gets thrown out, the same person can lay the same charge against another person, McHale explained.

"The best thing about private prosecution is that nobody can stop it."

A Crown Attorney can actually throw out a frivolous attempt at private prosecution, however McHale said he can ask for a judicial review of that decision.

Until the Crown takes the case over, McHale is the prosecutor and can demand that the OPP turn over evidence needed for court. He said the last thing the OPP wants is him going to development sites to lay charges.

"We will go after the leaders within the OPP," he said.

"It's time to hold these people responsible."

McHale defuses what the calls "legalized myths" used by the OPP to justify land protests including the "colour of right" and the "duty of developers to consult with aboriginals."

During a land protest in Cayuga earlier this year, an OPP officer stated that a title deed was not sufficient to prove ownership of land under dispute. However numerous court cases have determined that isn't the case and government officials say they stand behind title deeds.

In a paper regarding Ipperwash, former Attorney General Michael Bryant (the present Minister of Aboriginal Affairs) determined that aboriginals had no jurisprudence over colour of right. Supreme court decisions have found that bare claims to land are insufficient to prove colour of right and that there are other means of recourse, namely the legal system, to deal with such claims.

The OPP are encouraging people to go and get baseball bats, McHale argues. Police serve as part of a protection agency for criminal behaviours, he said.

The Supreme Court has also determined that it is the Crown's responsibility to consult with aboriginals regarding development, not municipalities or individual developers.

Merlyn Kinrade hoped that more people would have shown up for Monday's meeting at the Lions Hall. McHale and others spoke to a small gathering of less than 25 people.

CANACE is a group being led by several individuals who are going bankrupt to fight for justice, Kinrade said.

The group's members are asking for cash donations to continue with their work. An individual membership costs $20, family memberships cost $30 and business memberships cist $100.

Kinrade was able to collect more than $200 from people who were on hand at Monday's meeting.

He said that CANACE needs the support of county council, MPs, MPPs and chambers of commerce.

"This is about all of Canada and for the life of me I can't understand why people won't get involved," he said. "We need help, we need money…It's a sad state of affairs that we've got to plead with people to support us."

Holding up the binder of evidence against the Montours, McHale said such work takes a lot of research which is also time-consuming.

Local resident Doug Fleming said that by holding feet to the fire, he hopes politicians and police start to do the right thing.

"If someone has a better plan I'd like to hear it."

More information can be found online

Mayor Marie Trainer came out to the presentation as did local Coun. Leroy Bartlett.

Trainer said she thinks private prosecutions seem to be an effective way of dealing with crime in Haldimand County, but that people are afraid and reluctant to take action.

She said that throughout history, there always seems to be a private individual behind a revolution.