by Gary McHale - The Regional
April 1, 2009
It is not hard to remember Commissioner Fantino's claims over the past two years that Gary McHale was the cause of all the violence in Caledonia. Nor will the public forget that Mr. Fantino provided a character reference for Clyde Powless during his guilty plea for assaulting me on Dec. 1, 2007. The Commissioner claims he was concerned about the safety of his officers but it didn't dawn on him that perhaps he should not support someone who has been videotaped assaulting OPP officers in 2006 and 2007.
On March 25, 2009 a Cayuga Superior Court judge ordered Clyde Powless to be charged with four Criminal Code offences: Assault of a Peace Officer, s270(a); Obstructing a Peace Officer, s129(a); Being a Member of a Riot, s65; and Assault Causing Bodily Harm, s269(a). These charges stem from the smokeshop protest of Dec. 1, 2007 in Caledonia.
It should be noted that Superintendant Cain signed an affidavit on Dec. 14, 2007 telling the court that a Native protester was already charged with assaulting a police officer. This charge, however, was never filed - someone at the OPP intervened. A charge of assaulting a police officer was to be filed against Clyde Powless, but it is not the one ordered by Superior Court last week. Mr. Powless was videotaped assaulting at least 10 different OPP officers on Dec. 1, 2007 over the course of two hours but the OPP refused to lay any charges.
An OPP officer testified in Oct 2008 that he was hit twice by a Native driving a van on Dec. 1, 2007 and considered drawing his weapon. He and his partner were then assaulted by 10-13 Natives from the nearby smokeshop. Unbelievably, the Aboriginal Relations Team (ART) arrived at the scene of the crime and escorted the driver through the police road block without getting his name or licence plate number. Eleven months after filing his report to have the Native driver charged, he still had not been contacted by any OPP investigator.
How can the Commissioner be truly concerned about his officers if he endorses the very person who has assaulted so many of them while other officers turn a blind eye to assaults by native protesters?
The latest charges against Mr. Powless resulted from private prosecutions originally filed by me in March 2008. At the time the Crown directly interfered with the laying of the charges to ensure that the Justice of the Peace did not issue process. As a result I filed an Order of Mandamus to be heard in Superior Court to compel the charges to be issued. It was heard on March 25, 2009. As a result of our landmark Parkinson v. R ruling from Jan. 12, 2009, the Crown consented to my Order of Mandamus application and stated that the Justice erred when process was not issued in 2008.
In 2008 the Crown showed little interest in whether crimes had been committed or not, but whether the charge was being filed by a member of CANACE. John Pearson, Director of Crown Operations, appeared to personally try to paint CANACE founders as abusers of the Court. Justice in Ontario, from the Attorney General’s point of view, appears to be dependent on who you are versus what the Criminal Code states. Fortunately, our recent court victories have ended this silly Crown tactic.
The new approach by the Crown in stopping prosecutions is to agree to issue the charges then Stay them after certification in hopes that we will be not be successful in overturning the decision via a Judicial Review. Readers may remember the Crown dropped the charges of Extortion and Intimidation against Floyd and Ruby Montour; a Judicial Review of this case is currently scheduled before Judge Marshall on April 20, 2009 as part of my attempt to re-instate the charges.
On March 25, 2009 the Crown Stayed the charges of Mischief against the two OPP officers that Judge Marshall had ordered charged. In order to have a Superior Court Judge issue process for criminal charges one must provide the court with evidence for each of the essential elements of the charge. Judge Marshall reviewed this evidence, including the Crown's argument that the Officers were merely ‘doing their duty to keep the peace,’ and ruled that the case law is clear regarding Mischief, and thus the charge was issued against both officers.
The Crown has been forced to accept the right of citizens to file criminal charges against people the Crown doesn't want charged. Now it is our job to create the case law to ensure that the Crown cannot be allowed to abuse the system by dropping charges merely because of the politics involved.
It was Crown Attorney Dave Foulds from London who appeared during the pre-enquette hearing in March 2008 where he convinced the Justice of the Peace not to issue charges against Clyde Powless. Now the Crown is claiming the Justice erred which must mean the Justice should never have listened to Mr. Foulds.
Mr. Foulds was the Crown scheduled to prosecute Clyde Powless, Steve Powless, Camille Powless and Brian Skye for assaulting me on Dec. 1, 2007. I appeared in court on Dec. 4, 2008 to witness Clyde Powless plead guilty and watched as Mr. Foulds presented the evidence so the Judge could determine a sentence.
As a direct result of what I saw I filed a complaint with the Crown's office on Jan. 12, 2009 regarding my view of Mr. Foulds inability to present the evidence in court. Not only was he so disorganized he wasn't able to find relevant videos for the Judge, he provided inaccurate information to the Court. The Judge asked Mr. Foulds two questions: Is there any evidence to support Mr. McHale's statement that Clyde Powless wrestled his way through police officer to attack McHale? Was Mr. McHale on the wrong side of the police line at the time of the attack?
Mr. Foulds did not answer either question correctly, and he refused to allow me to take the stand to testify.
My biggest problem with Mr. Foulds was that it was he who originally convinced the Court that Clyde Powless shouldn’t be charged with assaulting police, yet he would be the Crown prosecuting Powless for the assault on me. He was also the Crown who argued that Camille Powless should not be charged with assaulting me, but was scheduled to prosecute her for Public Mischief regarding her false statement to police accusing me of Assault. I had no confidence in his ability or willingness to conduct effective prosecutions against my other attackers.
In Jan. 2009 I demanded Mr. Foulds be removed from any case where I was the victim and in February new Crown Attorneys were appointed to prosecute Steve Powless, Camille Powless and Brian Skye. Despite Foulds’ reluctance to prosecute Ms. Powless for Assault, the Judge hearing the Steve Powless case last week stated he would have no hesitation in finding her guilty, stating the video clearly shows her assaulting me twice.
In March 2008 Mr. Foulds, as the Crown Attorney, told the Justice that the charges against Clyde Powless should not be issued due to the lack of evidence. In March 2009 the Crown told the Superior Court that Mr. McHale had provided the court with sufficient evidence and the Justice erred by not issuing process.
Perhaps the Crown should stop playing politics and start focusing on the 'Rule of Law' in Canada. Tens of thousands of taxpayers' money has been spent to force the Crown to focus on the law and not on the person before the law.
Restoring the 'Rule of Law' in Haldimand is a long, tedious job but the struggle is slowly being won – one victory at a time.