OPP Officers charged for aiding Native Protesters

by Gary McHale - Regional News

March 25, 2009

In court papers filed by Jeff Parkinson, co-founder of CANACE (Canadian Advocates for Charter Equality), the following statements are made in a private prosecution case against two OPP officers:

"On May 23, 2007 a group of Native Protesters trespassed onto a construction site in Hagersville and brought construction to a stop. OPP Staff Sergeant Phil Carter of Haldimand Detachment was at the scene and was videotaped speaking to local residents. During one conversation Officer Carter stated, 'I am dealing with an illegal occupation here…' OPP Officer Rick Fraracci and OPP officer Christopher Galeazza were also at this construction site and were videotaped helping the Native Protesters placing a fence across the entry used by construction vehicles. This helped to block the driveway to the property and is in violation of section 430.1.c and/or 430.1.d of the criminal code. [Mischief charge]"

At first Mr. Parkinson filed a complaint against OPP Detective Sergeant Fraracci and OPP Constable Galeazza with the OPP Professional Standards Bureau but not surprisingly they refused to even investigate the case. The decision not to investigate was appealed to OCCPS (Ontario Civilian Commission on Police Services) who also refused to investigate the case - no surprise there either.

Mr. Parkinson began the process of filing Mischief charges against the officers via private prosecution and in March of 2008 he appeared at a pre-enquette hearing to give evidence against them. At that time Crown Attorney, Mr. Foulds, argued that as Mr. Parkinson is not the owner of the property, he did not know for a fact that the owner had not given permission to the OPP to build a barricade. This argument was accepted by the Justice of the Peace and the charges were refused.

Mr. Parkinson then interviewed the owner of the construction site, Dan Valentini, who agreed to give evidence against both the Native Protesters and against the OPP officers. On July 22, 2008 Mr. Parkinson presented the evidence including a statement from Valentini that the officers did not have his permission and were not acting on his behalf to a Justice of the Peace in Cayuga during a second pre-enquette.

The Crown was so worried about the possibility that OPP officers would now start to face criminal charges that they sent the Director of Crown Operations for Central West Region, John Pearson, to Cayuga to ensure no criminal charges were processed by the Justice.

During the pre-enquette before Justice Waugh, Mr. Pearson focused mostly on smearing Mr. Parkinson’s motives. Numerous questions were asked of Mr. Parkinson regarding his involvement with CANACE and his connection with Gary McHale and Mark Vandermaas. According to Mr. Pearson, who you associate with is more important than whether the two officers committed a crime.

UnfortunatelyJustices of the Peace are far too willing to take advice from the Crown and to follow blindly whatever the Crown tells them - few ask the Crown to prove by case law whether what they say is legal. In the end the Justice agreed with Mr. Pearson and refused to issue process for the Mischief charge.

For many this would be the end of the story – ‘McGuinty Government Covers for Illegal actions of OPP’ would be the headline. CANACE, however, was formed to fight for the Charter Rights of all citizens in Canada, and our position has always been that we would continue the fight right up to the Supreme Court if necessary.

Mr. Parkinson, therefore, filed an Order of Mandamus which has already been reported on in this paper twice. In short, Mr. Parkinson was asking the Superior Court to order the lower court to issue process against the two OPP officers.

The Crown responded with the claim that the Superior Court had no authority to order the lower court or any authority to pass any judgement on the pre-enquette. On January 12, 2009 Judge Marshall ruled in favour of Mr. Parkinson, which is the first time in Canada this has happened. Within two weeks this ruling was posted as the case law for such cases, and we have been told by a Government lawyer that law students will be studying it for years to come.

As a direct result of this ruling the court has issued an order of process against officers Fraracci and Galeazza on the criminal charge of Mischief for their role in building a barricade to stop Dan Valentini, the owner, from using his own property.

Judge Marshall also responded to the personal nature of the questioning of Mr. Parkinson's association with McHale and Vandermaas and stated in his ruling, "A private prosecution such as this is an important part of the public duty to oversee the administration of justice… I note, in reviewing the transcript there is evidence of good motives..."

CANACE founders have succeeded in laying criminal charges against native protesters and now, against OPP officers who have assisted in illegal occupations. As these officers appear in court (March 25th) there are two more Orders of Mandamus also being heard today. In one case senior OPP officers along with a former cabinet Minister in McGuinty’s government have been accused of 'Common Nuisance' for failing to protect Sam Gualtieri during the illegal occupation at the Stirling development. The definition of Common Nuisance is:

'every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (a) endangers the lives, safety, health, property or comfort of the public; or (b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.'

Did the OPP have a duty to protect Sam Gualtieri and did the OPP fail to do their duty? We believe so.

The Crown refused to allow us to even present the evidence before the Justice during the pre-enquette, so our Mandamus is asking the Superior Court to order the lower court to issue process on this charge.

It has been my view from the beginning that until OPP officers and government staff face the possibility of criminal charges they will continue to follow illegal orders in the government's effort to appease Native criminals who use Land Claims to justify illegal actions. Now they know the Crown cannot stop us from having criminal charges issued against them.

OPP Detective Sergeant Fraracci and OPP Constable Galeazza are the first but will certainly not the last to face criminal charges for their actions in Haldimand. Every single line officer in Haldimand should understand one thing - if you follow an illegal order from OPP brass you will face criminal charges.