OPP Officers contradicting each other in court

by Gary McHale - The Regional

October 28, 2009

As various OPP officers take the stand at my preliminary hearing it is quite amazing the contradictions that are being made in officers' testimonies.

Sgt. Ben Gutenberg was the senior office at the rally on Dec. 1, 2007, and while he was on the stand he was asked about what steps he took to indentify Native Protesters engaged in illegal activities. It was clear from his testimony that he spent a fair bit of time that day writing in his notebook every word and action that non-Native Protesters did but what about Native Protesters?

He testified he ordered various officers to follow up and get people's names, etc. In one case Native Protesters had blocked Argyle St. right at the bypass for quite a while with no charge against any of these Native protesters ever being laid.

Sgt. Gutenberg testified he ordered an officer to go and identify these Native Protesters who were blocking the road and to remove them. Officer Paul MacDonald was the officer who received the order from Sgt. Gutenberg. Officer MacDonald testified he was NEVER ordered to identify who was blocking the road nor ordered to remove them. He testified his orders were simply to setup a road block in front of the Natives to stop traffic.

OPP radio transmissions entered into evidence support Officer MacDonald's version of the story. Sgt. Gutenberg is heard over the radio saying, "You can block Argyle where you see the three vehicles there. You can park on the outside of them [Native Protesters blocking the highway] and take over the traffic control and if they don't leave voluntarily then that is fine but you can stay there and continue to do it but we are going to have a marked vehicle presence there.

At no time does it appear Sgt. Gutenberg ever ordered these Native Protesters to be identified, arrested or removed. Just to remind the public that a Native Protester did drive his van into Officer MacDonald twice causing him to threaten to pull his gun. Of course, this Native person isn't identified or arrested. In fact, he is escorted through the OPP road block by the OPP ART team and then allowed to leave.

So it appears Doug Fleming can be arrested and prosecuted for blocking the road on Dec. 1, 2007 and I can be charged and prosecuted for allegedly suggesting to block the road but... according to Sgt. Gutenberg's orders Native Protesters are allowed to voluntarily leave or continue to block the road without any interference by the OPP.

Another example of contradiction in OPP testimony is when Sgt. Steven Sloan and Sgt. Gutenberg both testified that they were ordered on Dec. 1, 2007 to go and 'find Gary McHale and arrest him for assault'. Sgt. Sloan testified that this order came from the lead investigators that were in Cayuga - Sgt. John Murray and Insp. Bill Renton testified they were the lead investigators in Cayuga. However, both of these officers testified that at no time did anyone order my arrest on Dec. 1, 2007.

Sgt. Murray repeatedly testified that at no time was there even a possibility that I would be charged with assaulting Camille Powless. She was later charged with public mischief for filing a false police report. The very next witness was OPP officer Jeff Christopher who testified that Sgt. Murray and Insp. Renton ordered him to prepare court papers against me on the charge of assaulting Ms. Powless. He also testified that he was told by both officers they had reasonable and probable grounds to lay the charge.

So what is the truth? Did Sgt. Sloan and Sgt. Gutenberg make up the story that they went out to  to arrest me on Dec. 1, 2007? Was Sgt. Christopher also incorrect about spending a day preparing the paperwork for court on the assault charge as ordered by Sgt. Murray and Insp. Renton?

While both Insp. Renton and Sgt. Murray received copies of Commissioner Fantino's rants ordering officers to 'explore every avenue' by which the OPP 'can bring McHale into court', they testified these instructions by the Commissioner didn't influence them in their investigation. Even though Insp. Renton took a FULL one minute to decided to lay the counselling mischief not committed charge, he was clear that he wasn't rushed to lay a charge.

Sgt. Murray testified that there was an eagerness within the OPP to arrest me but told officers to 'slow down', that they had lots of time to do the investigation . Insp. Renton also testified that he was telling officers to 'slow down'. Of course, neither officer could remember any names of any OPP officers who were attempting to lay a charge before an investigation was completed or even started.

Why is this important?

If senior OPP officers ordered my arrest regardless of whether an investigation lead to a charge then this would be illegal. Within 20 minutes of Camille Powless giving her statement to the OPP that I had assaulted her, two OPP officers, Sloan and Gutenberg, were ordered to find and arrest me. Not surprisingly no officer wants to admit they gave the order. Such an order would be illegal and would directly prove the OPP was more than willing to lay a charge they had no legal right to lay.

We should expect more contradictions as officers are forced to explain why they treat Native and non-Native Protesters differently. Instead of applying the law equally, we have numerous examples of the OPP targeting non-Natives for arrest yet allowing Natives to go unidentified.

The reason for this is quite simple - in my view, it allows the OPP to say they cannot make an arrest because they don't know who committed the crime. No arrest for burning down the Stirling bridge, no arrest for the attack on the power station, no arrest for blocking the highway for 6 weeks in 2006, no arrest for blocking the bypass for four days in 2008, and each time you ask the OPP why there has been no arrest they give the same answer.

We cannot identify who committed these acts.