Judge asked, "Why are you pursuing this case?"

by Gary McHale - The Regional

September 2, 2009

On May 26, 2008 Judge Hawke, from Hamilton, presided over my pre-trial in Cayuga which started an interesting chain of events that would provide independent legal opinion regarding the Crown's prosecution of me on the charge of Counselling Mischief not Committed.

Normally pre-trials are conducted in the Judge's chamber with the Crown and Defence lawyer. One advantage of being self-represented is the fact that everything that happens must be done in court before a court reporter.  This means there are transcripts available regarding what was said during pre-trial.

The Charter of Rights contains 28 defined rights. Sections 7 to 14 directly relate to criminal prosecutions, with section 10 divided into three parts and section 11 divided into nine parts. When you add in section 1, 15 and 24, which are often related to criminal cases, it is not hard to see that half of the Charter of Rights is written to ensure individuals have certain fundamental rights when they are prosecuted.

One of the main problems in criminal cases is the issue of disclosure. The key point of a pre-trial is to ensure that such issues have been dealt with prior to any case proceeding to trial. It is not surprising that the main issue on May 26, 2008 before Judge Hawke was the fact that I was claiming the Crown was refusing to provide proper disclosure.

The Crown's position was that they had already provided so much disclosure that I was just asking for too much. My position was quite simple - I had the notebooks of police officers directing traffic 2km away from the crime scene while the Crown was refusing to provide the notebook of the officer who ordered my arrest on Dec. 1, 2007.

Judge Hawke's position was also quite simple - she asked the Crown why they were refusing to hand over this disclosure. Over the course of 30 minutes she repeated the question several times to the point that the Crown stated, "Your Honour, I have already answered that question four times". Clearly Judge Hawke didn't like the answer, nor did I.

During pre-trial the judge has no authority to order disclosure but Judge Hawke did order a new pre-trial which is very unusual.  She also asked me whether I wanted the case moved to Hamilton to which I immediately said yes. My view was that once my case was moved into any large city the court would be upset with the Crown for bringing such a petty case forward.

On July 2, 2008, Judge Cooper Sr. presided over my second pre-trial which was held in Hamilton. He set the tone of the pre-trial with his introduction in which he stated, "Here in Hamilton we have serious cases before the court including murder, rape and crack dealers. Tell me why this case is serious enough to use up court time?"

His second question was, "I see this is scheduled for a 5 day trial, tell me why this is serious enough to use 5 days of my time?" His third question was, "Why is the Crown even pursuing this case?"

The Crown's answer to this question was, "Your Honour, it is in the Criminal Code" to which Judge Cooper responded, "I have never heard of such a charge." The Crown then stated, "to tell the truth we have never heard of it either until now."

I remained silent during these questions but decided to tell the court why I believed the Crown was prosecuting this case. I told Judge Cooper that the Crown was following the direct orders of Commissioner Fantino, and their political masters in McGuinty's Government, who are not interesting in getting a conviction but in having travel restrictions against me. I informed the Judge that back in Dec. 2006 Commissioner Fantino had emailed the Government to get them to find some way to arrest me and force travel restrictions upon me. On Dec. 16, 2006 I was arrested but Judge Boon in Hamilton ordered my release after the OPP failed to provide any legal reason for holding me in jail.

I further told the court that since that time Fantino had started a public campaign to smear me and target anyone who associated with me. A year later the OPP created the current B.S. charge that is before the court. As Fantino stated in his email the Crown is 'timid' and 'feeble' and he ordered his officers to overlook 'legal nuances' and he didn't care if the court agreed because, as he stated, 'it will allow us to publicly expose him [Gary McHale] as a mischief-maker'.

Pre-trials are normally very short - about one hour. Judge Cooper wasn't happy with the Crown's decision to prosecute this case. He ordered us to return after lunch break because, as he stated, 'this case is not going to trial". We spent the afternoon with  Judge Cooper trying to find ways to get the Crown not to take this case to trial. Each suggestion the Judge gave the Crown was met with a 'no'. At one point the Crown told the Judge that he didn't have the authority to authorize any deals and would have to check with his superiors.

Judge Cooper was also very unhappy with the Crown's continued refusal to provide full disclosure. By this time the Crown had finally provided me with the notebook of the officer who ordered my arrest on Dec. 1, 2007. The problem was that almost every page was completely blacked out.

I held up the disclosure so Judge Cooper could see and showed him about 6 pages - every page had every line blacked out. The Crown was trying to claim this was proper disclosure.

During the preliminary hearing each officer taking the stand repeated the same answer - "I did not know anything about Fantino's orders directing our attention to Mr. McHale." It is almost a scripted response.

It is also very hard to prove wrong doing when the Crown has blocked out all names that are copied on emails. Also text messages sent by OPP officers during the Dec. 1  protest had suddenly been lost.

On Aug. 26, 2008, I received a fax from the Crown stating that OPP cell phone messages were still being compiled and would be forwarded to me - a year later I have not received them.

OPP officers rarely use police radio anymore. Most officers use cell phones at the rallies and I believe it is because they have learned that police radio is taped by the public. Several people in Caledonia have bought police radio systems and listen in on what the OPP are saying - this is completely legal. The OPP have been caught too many times saying the wrong thing so they switched to cell phones.

The Supreme Court has already ruled that police radio and 911 calls from the public are primary evidence and must be disclosed.

The OPP is hoping to get around this fact by using cell phones. The case law is clear that the police have a duty to preserve this evidence for disclosure.

Which officers knew what and when is vital in a criminal investigation. Did the investigators do an independent investigation or were they ordered to lay a charge?

One is legal while the other is illegal.