by Gary McHale - The Regional
September 23, 2009
I am quite sure that you have never heard of Judge Hoffman before, but he has had a large influence in Haldimand County for the past 3 years. On Wednesday last week Mr. Hoffman was merely the Assistant Crown Attorney who had spent the past two years prosecuting me for Counselling Mischief not Committed. The next morning I learned Mr. Hoffman was now Judge Hoffman which suddenly forced an adjournment of my preliminary hearing while they find another Crown Attorney to take on the case to prosecute me.
This may surprise people but my immediate response to hearing that Mr. Hoffman was now a Judge was to state that he deserved the appointment. In my view, Mr. Hoffman represented the hope I have for the justice system.
Don't get me wrong, Mr. Hoffman was brutal in court. He got down right angry at Jeff Parkinson, a CANACE founder, who was on the witness stand. Mr. Hoffman cross-examined Mayor Trainer to the point that Judge Zabel told him he was badgering the witness.
I think I have demonstrated a willingness to name those in the Crown's office and within the OPP that I believe are part of the problem and not part of the solution. There has been more than one occasion in court, when the judge is not in the courtroom, that I have torn a strip off one of the Crown Attorneys - in fact, I have filed criminal charges against a few government lawyers.
I know there are those in Caledonia who dislike Mr. Hoffman because he has prosecuted several residents over the past three years.
In my mind, justice would never have been served if Mr. Hoffman had half-heartedly prosecuted the cases brought before him. In fact, isn't that the exact reason so many people are upset by Race Based Policing? In the minds of the Politicians and the OPP racial policing is somehow justified because of some historical wrong that was done to Native people.
The job of the Crown Attorney is to prosecute those cases he believes meet the conditions of a crime as expressed by Parliament in the Criminal Code. The Rule of Law means that Justice is blind to the surrounding politics. It is just as wrong for the Crown to stay a charge simply because the accused is a resident of Caledonia and has been victimized over the past three years as it is wrong for the Crown to stay a charge against a Native person because of some perceived victim status for past wrongs.
What was great about Mr. Hoffman was that he worked just as hard to ensure that I had every opportunity to present my defence as he did to ensure he got my conviction. I am sure he took a lot of heat from the OPP and from his superiors for some of his decisions regarding my case.
I think what happens to many lawyers, whether Crown lawyers or defence lawyers, is that the courtroom becomes merely a game to get the best deal for your client or simply to move the case along.
Justice is not merely a person having a lawyer and standing before a judge - if that were the case then there was justice in Nazi Germany. People should never forget that what was done to the Jews was made legal, at the time, by the lawyers and judges. The same could be said to a lesser degree in Southern USA when there was no way a White man would be found guilty for killing a Black man.
I have stated several times to government lawyers that racial policies, like those found in Haldimand County, can only continue to exist because the lawyers and judges allow it. It is the Court that brings both the Police and Politicians under control, and if not, institutional racism will become part of the culture for generations.
On this point I do agree with Native people that institutional racism against Native people has been part of Canadian history. But the solution can never be institutional racism against Non-Native people. Creating current victims of racial policies can never address the evils of the past.
The Supreme Court of Canada has defined the role of the Crown Prosecutor as the following:
"It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty... It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."
In my view the problem Mr. Hoffman had in prosecuting my case is the fact that he had no authority to stay the charge. In my second pre-trial Judge Cooper pressured Mr. Hoffman not to take my case to trial but Mr. Hoffman informed the court he didn't have that authority and would have to check with his superiors.
There is little doubt that the OPP repeatedly withheld evidence from Mr. Hoffman as the case proceeded. The Crown cannot disclose to the defence what the Crown doesn't know exists. By law the police force functions as one with the Crown during the prosecution of a case. Although the police and Crown are separate organizations, the Courts have ruled that the police and Crown have the same obligations to the defence to disclose evidence. In fact, the latest Court Rulings place the added responsibility on the police to preserve evidence that could help in the defence of an accused.
The case against me should never have been filed, but now that it has, the OPP and Crown are duty bound to provide every piece of evidence that I could use to clear myself. This is why the Crown has provided me with 23 volumes of disclosure and more is coming. This is why emails, text messages, notebooks and briefing notes from Commissioner Fantino, Deputy Commissioner Lewis, Supt. Gentle and other very senior officers have been turned over to me.
Of course, I would have none of this disclosure if these officers had not played a role in the events that led to my arrest. Within the first 20 minutes of the protest on Dec. 1, 2007 these officers were starting to email each other. The message could be summed up as simply, "Get Gary McHale".
Contrary to what some people may think, I do not believe all OPP officers or Crown Attorneys are corrupt.
I believe Judge Hoffman will serve Ontario well. He has seen firsthand what happens when a police force runs amok and when a Crown's office is too timid and feeble (Fantino's words not mine) to ensure that wrongful prosecutions do not occur.