Officer Hartless speaks out in Court

by Gary McHale - The Regional

June `0, 2009

Mr. Dave Hartless lives within 100 feet of Douglas Creek Estates (DCE) with his wife and three young children.  He is a Hamilton Police Officer who has been the target of Native Protesters as well as the OPP over the past 3 years. Both Insp. McLean and Commissioner Fantino tried to silence Mr. Hartless by directly approaching the Hamilton Police to get Dave's superiors to take action against him.

Mr. Hartless was subpoenaed by me and appeared in court on April 20, 2009. His perspective as an officer living near DCE was important. Mr. Hartless witnessed various criminal acts committed against residents and has been assaulted himself. The attempted murder of an OPP officer occurred in front of his home.

He testified as to how residents were assaulted, how he was threatened by a group of 10 Natives, how his wife's van had the lug nuts loosened twice, how he witnessed OPP officers surrounded by Natives with axe handles and 'other forms of weapons' and what he saw when the OPP and USA agents were attacked and their van was stolen.

During this attack upon the OPP and USA agents Mr. Hartless testified that there were OPP officers stationed 24/7 at the end of his street approx. 100 feet away from his home. He watched as Natives drove the unmarked OPP van towards DCE and came within 'four feet' of this 24/7 OPP post without any officer making any attempt to stop the van. No officer moved his vehicle to block in the Natives who just attacked OPP and USA officers. OPP officers stood watching their fellow officers be assaulted and the van stolen without coming to their aid.

Residents wondered what hope there was that OPP officers would help a resident in need if they would not even help one of their own?

Mr. Hartless also testified that he had reported to the OPP the fact that Natives were sitting in a tree behind his home with a rifle. He testified that 'camouflaged individuals' had built a 'tree stand' at the edge of the tree line and would have a rifle sitting across their lap.

Commissioner Fantino had been telling the public that everything in Caledonia was peaceful but for Gary McHale. I had started my website mid-June 2006 so I asked Mr. Hartless about the state of Caledonia prior to my involvement and here is his sworn statement:

"The situation in Caledonia to that point was absolutely abhorrent; I would never have imagined something like that happening in this country... I believe that policing was in effect suspended in the town. The people surrounding the area 'the zone' which is the bordering houses, were placed under constant intimidation, threats, physical attacks, property damage; and all of it was unmitigated by any policing action.'

At this point I asked the Mr. Hartless to define for the court the duties of a police officer which he read off directly from section 42(1) of the Police Service Act which states the duties as including '(a) preserving the peace, (b) preventing crimes and other offences, providing assistance and encouragement to other persons in their prevention, (c) assisting the victims of crime, (d) apprehending criminals and other offenders, (e) laying charges and participating in prosecutions...'

When asked whether an officer can pick and choose which of these duties he will obey, Mr. Hartless offered to the court an interesting viewpoint. He had brought into court one of his wife's cookbooks and read out how to make cashew and coconut cookies. He read out all the ingredients for these cookies and asked what would happen if you stopped after the first ingredient which was 2.25 cups of flour.

Of course the answer was that you wouldn't have very good cookies if all you had was flour. In the same way you cannot have true policing if officers are refusing to follow all the duties required by law in the Police Service Act.

Mr. Hartless testified just how two tiered the OPP policing is in Caledonia with the example of how his wife got arrested. In Aug. 2006 'Natives arrived in force and pelted the house of one of our area senior citizens with rocks', he stated, which 'continued for probably 2-4 hours while the police remained at the front of the house' which was 'nowhere near where the rocks were coming from'.

So the next day four women from the neighbourhood took 'lawn chairs and a thermos of coffee and went and sat in the... buffer zone'. The OPP who had refused to enter the buffer zone the night before to stop Natives throwing rocks now entered with 53 officers to arrest Mrs. Hartless and physically carried her out of the area as she continued to sit in the lawn chair.

In Caledonia residents were arrested for sitting in the buffer zone as they drank coffee but the OPP did nothing when, for hours, Natives were in the buffer zone 'pelting' a home with rocks. Mr. Hartless testified, "the buffer zone was strictly enforced against non-Natives; Natives were regularly within that buffer zone, and were essentially allowed free access unfettered.'

Mr. Hartless then testified to a police officer's authority to arrest someone to 'prevent a breach of peace' - something the OPP repeatedly used against residents while allowing Natives to do anything they wanted. He testified that as an officer he would arrest the person who was about to break the law. He stated he would arrest the 'aggressive one, the one calling a person out to fight'.

The OPP have repeatedly arrested non-Natives because Native Protesters have told the police they will attack non-Natives. So instead of arresting the Native Protester who was threatening violence the OPP arrest the non-Native claiming the non-Native is 'breaching the peace'. Mr. Hartless and an OPP officer, who had 30 years of experience, testified that such arrests are not legal based on their experience. This however has not stopped the OPP from targeting non-Natives to appease what the OPP called 'extreme elements' from Six Nations.

The Crown attempted to show in their cross-examination that police discretion allows officers to overlook offenses. On my re-examination I directly asked whether police discretion is applied based on who you are and here is Mr. Hartless' answer:

"If you're asking whether I believe it should be applied because of political stripe or stature within a community or anything that would define you as a minority or a majority or sexual orientation, et. cetera, then no... In fact, that would be completely alien to every fundamental rule of justice that I'm aware of.'

Asked whether a police officer can be influenced under pressure from above Mr. Hartless stated, "No, discretion's an individual - it's an individual ownership. Each officer will exercise discretion based on their personal experiences, the time on the job, various other factors that would be individual to that person. You can't legislate or direct discretion - that's not discretion, that's following orders."

While the OPP brass claim individual officers are exercising their own discretion it is truly amazing how each officer provides the exact same answers when asked questions and each exercises their discretion the exact same way - stand by and watch native protesters commit crimes.

This is not police discretion - this is blindly following orders.