Fantino Intervenes to drop charges against Powless?

by Gary McHale - The Regional
May 6, 2007

OPP Officer Sgt. Sloan confirmed, while testifying at the million dollar hearing into my charge of Counselling Mischief Not Committed, that within minutes of Doug Fleming's Smoke Shop protest that Clyde Powless was upset and agitated. He testified Mr. Powless' agitation had nothing to do with me and was simply because residents had dared to protest against the smoke shop.

On Dec. 4, 2008 Commissioner Fantino provided the Court with a character reference for Clyde Powless which included the following statement, "...with respect, the honourable Court may wish to consider the volatility of the situation and provocation that simply could have been avoided but for the presence of Mr. McHale and his like minded followers."

Mr. Fantino repeatedly stated in court that Caledonia would be a peaceful place if weren’t for Gary McHale. Hamilton Police officer and Caledonia resident Dave Hartless was asked what he thought of this statement. Mr Hartless replied, “I’m trying to think of a polite way to say it. (pause) I think that would be an extreme exaggeration on the part of the Commissioner.”

OPP Officer Bird was also asked to respond to the Commissioner's view and, under oath, he stated, "There were incidents that arose in Caledonia that had nothing to do with you [McHale].”

What the Court has heard so far is that the officers in Caledonia knew full well that the protest was organized by Doug Fleming and it had nothing to do with me.  The OPP's morning briefing was titled "Doug and Randy Fleming Protest" and the hourly updates that Mr. Fantino received, as per his orders, were called "Fleming - Plank Road Smoke Shop Protest Update".

An early email sent out to OPP Brass on Dec. 1, 2007 states, "Today in the Town of Caledonia a protest organized by Doug Fleming turned into civil unrest this morning." What Fantino then sent out to his officers, however, read as follows: "Today we had another flare-up in Caledonia spearheaded by McHale."

Another email states, "Fleming has blocked road. McLean in contact with CP [Command Post] arranging Flemings arrest". However, what came out from the OPP Brass was the following email, "If we aren't going arrest the likes of McHale for blocking off the road on a Saturday before Christmas and causing total chaos that results in violence, we're going to lose all credibility."

There is a serious disconnect between the facts as recorded by OPP Officers in the field and the orders that came out from the Brass. In his instructions to target me for charges Fantino ordered his officers to overlook 'legal nuances' and told his officers the Crown was 'timid' and 'feeble' because they only wanted to pursue charges for which convictions were likely. According to the Commissioner’s email, even if the Court disagreed the charges would still allow the OPP to 'publicly expose' McHale.

According to his own testimony OPP brass has 'identified' 'Gary McHale as the leader' for everything that happens in Caledonia. The Commissioner's unrelenting rants, however, even caused Haldimand Counsel to say ‘enough.’ On Dec. 1, 2007 Fantino drafted a press release which was first shown to Haldimand Council. The message, of course, was the usual propaganda stating, 'Commissioner Fantino expressed his outrage at the interlopers'.  Fantino couldn't explain why this press release wasn't released to the media but emails entered into evidence state, "They [Haldimand Council] didn't like the Commissioners release."

Even Haldimand Council saw through Fantino’s attempts to twist the truth to make people believe that I am to blame for Caledonia’s misery. It is not surprising that Mr. Fantino would be a character reference for Clyde Powless, the man who assaulted me. What is equally disturbing is Fantino testified that prior to writing this reference he asked no officers nor reviewed any reports to see what other illegal activities Mr. Powless had been involved in. On April 22, 2009 he testified he was unaware of any other charges against Mr. Powless. After this testimony the court broke for lunch.

The court resumed 30 minutes late so the judge asked the Crown to put on record why the court was delayed. Court heard that during the break I had requested that the Crown disclose blacked-out content from several Fantino emails. The Crown told the court that based on Fantino’s testimony officers were now unblocking the emails.

After a quick look at the new disclosures I immediately requested an adjournment to review in depth what I viewed as new vital evidence regarding my case. The Crown agreed that I should be given more time and the court was adjourned. Mr. Fantino was ordered back into court on Tuesday April 28, 2009.

On April 28 I questioned Fantino about the new unblocked emails which provided the following evidence. First, Mr. Fantino knew full well what charges Mr. Powless was facing. At 4:44 pm on Dec. 6, 2007 Mr. Fantino received an email stating that Clyde Powless would be charged with "assault, assault PO [Police Officer], mischief". No further emails are sent to the Commissioner until he sends out an email at 5:52 pm on Dec. 6, 2007 which he states he has 'tinkered' with the charges.

The new list of charges sent out by Fantino states that Clyde Powless will be charged with Assault and Mischief - dropped is the ‘Assault Police Officer’ charge. On Dec. 7, 2007 the Commissioner sent out another email where he asks for the latest version of the press release 'minus the charges' that included his 'input'.

On the stand the Commissioner stated he could not recall anyone phoning him or informing him that the charge for assaulting a police officer was being dropped. Then he claimed he didn't know that 'Assault PO' meant  ‘Assault Police Officer’ until I reminded him. He also couldn’t remember what charges he wanted 'minused.’ He did, however, admit that the only charge that had changed on the list of charges was the dropping of 'Assault PO.' 

Since 2007 Mr. Powless has also been charged with another assault on a police officer, obstructing a police officer and being a member of a riot. All charges resulted from the same event on Dec 01/07 and were filed by me, consented to by the Crown and approved by a Superior Court.

What is clear from the evidence is that Mr. Powless repeatedly assaulted OPP officers, incited the crowd to pull the hydro tower across the road, threatened officers with bodily harm and attacked me.

My charge for Counseling Mischief not committed is solely based on a 14 second conversation with Doug Fleming who took no action based on my words. Evidence shows Powless actually did convince Mr. Porter to block Argyle Street for hours with the hydro tower. Mr. Powless, however, did not face the more serious charge of Counseling Mischief that was committed (an indictable offence punishable with up to 5 years in jail), and the Crown later dropped the less-serious charge of Mischief after telling the Court they were prosecuting both cases equally.

No amount of evidence is ever going to change the OPP Brass' mind or policy that targets non-Native people because of their race.

Subsequent columns will reveal how OPP officers have testified in court to Race Based Policing, and how Fantino ordered my arrest after being informed that there were no grounds for a charge.