Fantino Fined by Cayuga Court

by Gary McHale - The Regional

March 18, 2009

On Tuesday March 10 Commissioner Fantino failed to appear in court for two cases - McHale v. Fantino and Vandermaas v. Fantino. Due to a publication ban, which we will challenge as a violation of our Charter Right of Freedom of the Press, we can only report that the Commissioner received a separate fine for each case.

If this was an isolated case it would be a minor point that the Commissioner was fined but I believe it demonstrates a greater inherent disrespect for the courts in Cayuga by the OPP and the Attorney General's office. I say this because this is not the first time OPP officers have failed to appear before the Cayuga Court and not the first time the Attorney General's office played a role.

On Dec. 24, 2007 Inspector McLean, the highest ranking officer in Haldimand, refused to respect a subpoena by failing to appear in court as required by law. The Crown covered for Insp. McLean and talked the Justice into proceeding with the case without the Inspector. Eight months later on Aug. 8, 2008 Judge Marshall ruled that the Justice of the Peace erred by allowing the case to proceed without Insp. McLean being forced to appear in Court. During Judge Marshall's ruling the Crown repeatedly attempted to provided excuses for Insp. McLean's refusal to respect a Court Subpoena. Each time Judge Marshall got more forceful about Insp. McLean's obligations to the Court. In the end the Crown stated they would inform the OPP of the ruling. Failure to appear when subpoenaed can result in a criminal charge.

In Small Claims court the rule is that during Settlement Conference all parties MUST appear in court. In 2008, Insp. McLean, Sgt. John Murray and Sgt. Phil Carter each failed to appear in Small Claims Settlement Conferences and each were represented by the Attorney General's office. Doesn't the Attorney General feel that his own staff (the Lawyers) and their client (the OPP) are subject to the rules of the court?

Shouldn't the OPP and the Attorney General's office set a better example for the public than repeatedly failing to appear in court?

The question for three years is whether certain people are above the law and our message  has always been that in Canada no person is above the law. Are police officers, lawyers and government officials subject to the same rules as you and I - I believe they are. Judge Marshall's ruling should have sent a strong message to the OPP and to the Attorney General's office that everyone is subject to the same rules.

Unlike other police forces in Ontario the OPP doesn't have to worry about the cost of court. Each officer is an employee of the Province of Ontario and as such is guaranteed to have FREE lawyers, Free legal research and endless Free expenses paid for by the Attorney General's office. It doesn't matter to the OPP officer whether the case cost $5000 or $500,000 - it is paid for by the taxpayer. Even if the OPP officer loses the case it is the taxpayer who will be pay the bill.

Since Caledonia has started, the actions of the OPP has generated approx. $50 million in lawsuits, over $100 million paid out for policing and buying DCE and millions directly to the Native Protesters in negotiation fees etc. Add in another $10 million for both Federal & Provincial salaries and the cost of the RCMP in 2006 then you start to see the endless money pit.

Court costs are now into the millions as the Ontario Government defends the actions of Commissioner Fantino and the OPP.  In the Government's lawsuit against me for $7.2 million (filed by 22 officers) they spent $65,000 (Lawyer's cost alone) on one motion to keep the case in Toronto while I wanted it in Cayuga. This case was filed two years ago and keeping it in Toronto ensures it will not see the inside of a courthouse for many more years.

On the same day Mr. Fantino was being fined in Cayuga he lost his court appeal to have an adjudicator removed from a disciplinary hearing. This is the third adjudicator Mr. Fantino has appointed and the third one he wants removed.

"How much more public money will OPP Commissioner Julian Fantino be allowed to burn through in his pathetic attempt to oust the adjudicator at his embarrassing disciplinary hearing?", NDP Peter Kormos asked Community Safety Minister Rick Bartolucci at Queen's Park. "It's the taxpayers who are picking up the tab", Kormos stated.

A three-judge Divisional Court panel unanimously found judge Leonard Montgomery had behaved reasonably, and the judges rejected accusations of impartiality from Mr. Fantino and ordered the disciplinary hearing to resume.

Mr. Fantino wanted Justice Montgomery removed after the Justice suggested that Fantino had been 'improperly tipped over a lunch break during his testimony' which would be illegal.

Mr. Falconer, who represents the officers who were disciplined stated, "This is a sad example of where endless legal resources can take a proceeding... apparently limitless resources have been poured into delaying this matter".

Although this case should have little to do with Mr. Fantino, he has been dragged into it with the defence accusing him of witness tampering. Mr. Fantino's Lawyer has already stated the ruling will be appealed.

As with everything else the OPP does, the taxpayers will foot the bill. With such economic hardship starting to be experienced by the average person, the OPP and Mr. Fantino need to learn a big lesson - in a democracy they work for us.

We pay the bills so we have the Right to hold them accountable.