Too important for one Judge

by Gary McHale - The Regional

October 14, 2009

I was scheduled in court on Oct. 5 to 7 to present the legal argument for a Judicial Review of the actions of the Crown's Office for staying the Extortion and Intimidation charge against Floyd and Ruby Montour. Judge Marshall heard a day of oral presentation in July 2009 before removing himself from the case and requesting an outside Judge be brought in.

On Oct. 5. Judge Gordon, upon entering the courtroom stated he had read my Application and immediately raised the question which court has jurisdiction to hear this case.

The Crown also wanted to raise the issue about whether the Court should even waste it's time with this Application. The Crown argued the court had no authority to review the discretionary authority of the Crown and that if the court heard the Application it would open the court up to numerous other similar applications. The Crown argued that it makes thousands of decisions everyday and the court cannot allow people to question every decision they don't like.

I informed the court that the actions of the OPP and the Crown have caused harm to the public's view of the administration of justice and pointed to the fact that every elected official in Haldimand had already publicly denounced what had been happening. This included Councillor Grice, Mayor Trainer, MPP Toby Barrett and MP Diane Finley.

Judge Gordon then said to the Crown, "considering what was just said would it not be better for this case to be heard before a panel", [referring to a panel of 3 judges].  Judge Gordon expressed his view that this case was 'important to Mr. McHale and others and ordered the case transferred to Divisional Court to be heard by a panel of 3 Superior Court Judges.

The Crown wanted the case dropped but in the end the Judge believed this case was too important to be heard by only one judge.

So the question is why would this case be so important? Here are some direct quotes from the Application.                                                                                  

Instead of upholding the rule of law, the OPP informed the public that they could not stop Native Protesters from blocking or occupying construction sites. In direct violation of the criminal code (s. 41 and s. 31 see Voortman ruling) the OPP threatened the legal owners that they would be arrested if any confrontations occurred. This effectively allowed the Native Protesters to illegally block the construction site with the full knowledge that the OPP would arrest the legal owners, not Native Protesters, if any confrontations occurred.

These actions by the OPP only increased the intimidation the owners were experiencing and further forced the owners to comply with the demands of Floyd and Ruby Montour that they meet with HDI.  The OPP’s actions violated the Charter of Rights and Freedoms regarding 'security of person' and also denied the owners legal access to justice... The unwillingness of the OPP to lay charges for two years and the current staying of these charges directly undermines the 'Rule of Law', the Administration of Justice and the rights of individuals to 'security of person' as guaranteed under section 7 of the Charter.

The recent Superior Court ruling regarding an injunction sought by Voortman in Hagersville demonstrates both the seriousness of these cases as well as willingness of certain individuals to violate the law. The Judge stated:

"I also find that the actions of the Men's Fire amount to both criminal and civil misconduct. Their actions have interfered with the property rights of Voortman and can be characterized as nuisance, trespass, extortion, intimidation, and inducing breach of contract. Before I conclude I would like to emphasize the rule of law. All people in Canada are governed by the rule of law as confirmed in the preamble to the Charter of Rights and Freedoms. That is, all people in Canada are required to obey the law. As a corollary, all people in Canada are entitled to know that every other person in Canada will be required to obey the law. If any person in Canada does not obey the law, the courts will enforce the law. In that way the public has some assurance that they can live in peace without fear of those who might choose to disobey the law."

The actions of the Crown to stay the charges constitutes 'flagrant impropriety' on the part of the Crown for the following reasons:

1) The Crown’s actions demonstrate a lack of independence from the policies and practices of the OPP.

2) The Crown has demonstrated that they don't review the evidence on a case by case basis before deciding on criminal cases.

3) The Crown has failed to consider their responsibility to the victims of these crimes as required by the guidelines.

4) The Crown has failed to 'embody' the image as 'models of fairness and transparency in decisions' as required by the guidelines.

5) The Crown's actions also demonstrate a support for 'institutional discrimination' against non-Native people who seek justice within Haldimand County.

6) The Crown has failed to understand the level to which the public believes the Crown is no longer independent of OPP policies and practices.

7) The Crown has failed to understand the level to which the public will lose faith in the justice system due to their actions. Such loss of faith will directly encourage people to seek self-help methods of seeking justice instead of appealing to the court.

For these reasons the Crown’s actions constitute a 'flagrant impropriety' in regards to the principles of 'fundamental justice' and the 'Rule of Law' when they stayed these criminal charges against Floyd and Ruby Montour.

-- end quotes --

Judge Gordon was correct to understand that this case is very serious and must be heard by the court. By sending the case to Divisional Court it will make it much harder for the Crown to appeal a ruling.

The fundamental question the court has to answer is whether the Crown, in exercising their discretion, can base their decision on a person's race or on the political will of the current government. Furthermore, the court needs to address whether all other people in Canada automatically forfeit their rights just because Floyd and Ruby decide to do an occupation.

Will there be another Caledonia somewhere in Ontario if the court doesn't correct the racist policies of the OPP and Crown's office? You can guarantee that it is only a matter of time before another town becomes a victim of political correctness because of an absolute disregard of the Charter of Rights and Freedoms.

There is only one way to ensure the Government learns from Caledonia and that is to hold each person involved accountable for their actions. No longer can a lawyer for the Government, a Crown Attorney or individual OPP officer merely state he was following orders or the policies of the Government.

The 'I was only following orders" defence went out with Nazi Germany, and institutional racism within Government policies and police practices can only result in further victimization of average citizens in Ontario.

Everyone knows what has been happening is wrong - few are willing to stand against it.

If the court rules in favour of the Crown's racist decisions then you ensure that Ontario is firmly heading toward total anarchy.

When you deny people the right to use the justice system they will resort to violence.

This case before Divisional Court will be heard in February 2010.