Cayuga Crown supports Two Tier Justice?

By Gary McHale - The Regional

January 28, 2009

In early June 2006 Karl Walsh, president of the OPP Association, told the media that police officers were being injured by what he called "Two Tier Justice" in Caledonia. Since that time Mayor Trainer, MPP Toby Barrett, Councilor Craig Grice, Merlyn Kinrade, Doug Fleming, Gary McHale and many others have spoken publicly against how the OPP have been policing Caledonia.

In one sense it is not unusual for police forces to be accused of Race Based policing and in fact, Commissioner Fantino was accused of this back when he was Chief of Police in Toronto by the Black community and in one case a judge threw out a drug charge against an accused person because the judge ruled he was arrested because he was 'driving while being Black'. Caledonia is unique in the sense that never has there been so much evidence and so many people in official positions who have spoken out against a police force.

Now we see examples of the Cayuga Crown actively supporting Two Tier Justice in how they prosecute or not prosecute cases solely based on the Race of the person involved. Mitch Hoffman, Assistant Crown, has stood up in court and claimed that Mr. McHale's argument that his charter rights have been violated because he has been arrested and prosecuted because he is non-native is untrue. Mr. Hoffman has told the court that several native people and non-native people were charged from the protest event on Dec. 1, 2007 and that by itself proves there is no discrimination.

However, on Dec. 5, 2008 the Crown informed the court that Mr. Hoffman had dropped the Mischief charge against Clyde Powless because it wasn't in the best interest of the public. Mr. Powless had been charged for his part in pulling the hydro tower across Argyle St. in Caledonia which remained there for 5 hours.

There was no question about the evidence that Mr. Powless was involved or that the hydro tower did block the road but somehow it wasn't in the best interest of the public to prosecute this case. Meanwhile the Crown had no problem prosecuting Doug Fleming for blocking the same road for 30 minutes on the same day. The Crown also doesn't have a problem prosecuting Mr. McHale for allegedly suggesting that someone should block the road.

When the Crown was pressed on Dec. 5 about why they stayed the Mischief charge against Mr. Powless they stated they didn't want to argue in court for 6 weeks about whether Natives have 'colour of right'. Based on this logic that would mean the Crown will drop all charges of Mischief against any Native Protesters from the Dec. 1 event or any other event since they are not willing to present a legal argument that Native Protesters do not have the right to block roads, railways, etc. The Crown has no problem spending taxpayers' money on an 11 day (another 15 days has been requested) preliminary hearing against Mr. McHale for suggesting that someone block the road. Somehow a non-native person suggesting someone block a road is more serious that a native protesters actually blocking the road for several hours, days or weeks.

It should be clear that courts have NOT agreed that Native Protesters have colour of right to block roads or property. In fact, Mr. Hoffman presented to the court a B.C. Appeal Court ruling from April 2008 which clearly stated that Native Protesters do not have colour of right during protests even when they believe their land claims are valid. The result of Mr. Hoffman presenting this case before Justice MacDonald in July 2008 was that private prosecution charges filed by Mr. McHale against Floyd and Ruby Montour on the charge of Extortion, Mischief and Intimidation was certified by the Justice.

Therefore, the Cayuga Crown is well aware of the case law on colour of right and since the OPP laid the charge of Mischief against Mr. Powless in the first place one can assume they did so after considering and consulting with the Crown regarding colour of right. In May of 2008 the OPP commander at the Cayuga development that was being blocked clearly stated that the OPP were only following the instructions of the Cayuga Crown in regards to colour of right of native people to block roads and development. Thus, logic would then tell us that the OPP laid the Mischief charge against Mr. Powless and two other native protestors from the protest of Dec. 1, 2007 only after the Crown advised them on the issue.

Mayor Trainer testified two months ago and was very clear that the same native protesters repeatedly come into Caledonia and commit crimes and the OPP refuse to stop them.

Mr. Powless is part of the Men's Fire group and as such blocked Hwy 6 for four days in April 2008 while he was facing Assault and Mischief charges from his actions on the Dec. 1, 2007 protest. The Men's Fire support the recent protest and road blocking at the Edwards Landfill site which resulted in 4 people being arrested. Back in 2006 various media outlets caught Mr. Powless aiding in the six week blockade of Argyle St. and with grabbing and wrestling with OPP officers.

Ken Hewitt who helped start the current petition to have Commissioner Fantino removed stated the following in an open letter to Fantino, "this most recent letter of support that you [Fantino] submitted in defense of Clyde Powless, has finally brought me to this point in writing you, along with petitioning for your resignation as Commissioner of what was once known as an exceptional police force the OPP. You were not there that day that Clyde Powless lead the protestors to block Argyle road for a month, you were not there when on his direction, the same road was dug up, you were not there when Clyde Powless and his associates specifically told me three days prior to the hydro station being destroyed, that should there be any resistance from the people of Caledonia, that the services such hydro or water could be targeted."

Somehow these repeated acts by Mr. Powless don't cause the Crown to believe it is in the best interest of the public to prosecute Mischief charges against him.

One must ask what 'public' does the Crown believe it is speaking for when it says it isn't in the best interest of the public? Did they take a poll of the residents of Caledonia or Haldimand? Did they ask Mayor Trainer, MPP Toby Barrett or Councilor Grice? Does the Crown truly believe the people of Haldimand want native protesters to continue to block roads, etc. and not be prosecuted for their actions? Just how many millions of dollars must be lost in development directly due to these acts of Mischief before the Crown believes the public wants them to prosecute those who violate the law?

The Crown may have the legal right to stay the charge but the question is whether they have the moral right to do so.