Will the Court Order Charges Against Fantino?

by Gary McHale - The Regional

November 11, 2009

Last Thursday, an Order of Mandamus was presented at the Cayuga Courthouse seeking to have Commissioner Fantino charged with Influencing Municipal Officials in violation of section 123 of the Criminal Code. Since neither the Crown nor Fantino's lawyer requested a publication ban the media is free to report on the evidence that was presented.

Superior Court Judge Crane was presiding with AnneMarie Carere and Andrew Bell appearing for the Crown along with Chris Diana representing Mr. Fantino.

The court was told that on Aug. 11, 2009 a pre-enquette was held and evidence presented regarding a threatening email sent by Fantino to Mayor Trainer and Haldimand Council and that this email constituted a criminal act as defined by s. 123(2)(b) which states:

"Everyone is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years who influences or attempts to influence a municipal official (d) by... threats or deceit to... (d) to perform or fail to perform an official act."

The evidence presented was an email, dated April 5, 2007, sent from Councillor Grice to Jason Smith who lived in Mr. Grice's ward, an email from Fantino to the Mayor and Council sent on April 7, 2009 and two sets of transcripts of Mayor Trainer's testimony from Dec. 24, 2007 and Nov. 25, 2008 - in both transcripts Mayor Trainer describes the email from Fantino as threatening and as an attempt to intimidate council.

On Nov. 25, 2008 Mayor Trainer was asked, "Is it not true, in your view, that what the Commissioner of the OPP is saying to elected officials in this county is that you cannot speak in a positive way about Gary McHale?" Mayor Trainer answers, "Yes".

Fantino's email was a response to an email sent by Councillor Grice who stated the following in his email to Jason Smith:

"I have never once stopped Mr. McHale from coming to Caledonia. I have never spoken to Council about not letting Gary come to town, in fact the opposite is true. I do believe Gary brings media attention to our situation and I do support his stance on two tier justice... On the flip side of this, every positive has a negative and I've talked to Gary about it... Do I commend Gary for some of [his] actions and standing up? Yes, I do. Do I have concerns about how Caledonia is seen and how others I represent feel when he comes to town? Yes I do..."

Because of this email Fantino felt compelled to send an email to Haldimand Council and send a copy to Tony Dean (Deputy Primer for Ontario), Peter Wilkinson (McGuinty's Chief of Staff) and Chris Morley (McGunity's Press Secretary) - of course, we are told there is no political involvement in the actions of the OPP.

Fantino's email included the following statements:

"I have been made aware of a deeply disturbing communication... [McHale] received from Councillor Grice which among other strange comments, Councillor Grice commends McHale on his efforts in Caledonia... It is also very relevant and worthy of note that I highlight the extraordinary policing costs that are borne by Ontario taxpayers every time the situation in Caledonia escalates. And now, apparently, we have Councillor Grice commending someone that he knows is a lightning rod for confrontation and potential violence. Just as troubling, Councillor Grice has now added another aggravating political dimension to his previous 'anti OPP' rhetoric."

Mr. Fantino then proceeds to state 4 actions he is willing to take: 1) publicly hold accountable Councillor Grice AND Haldimand County along with McHale; 2) support any injured officer in the pursuit of civil redress; 3) forward the ensuing related costs of policing to Haldimand County, and 4) strongly recommend to the Ministry that the OPP contract with Haldimand County NOT be renewed.

The court was told that Justice of the Peace David Brown had ruled that Fantino's email was 'characterized as threatening, ill-conceived and ill-advised' and 'Frankly, I [Justice Brown] found it shocking'.

The Crown informed the court that Justice Brown had not erred in ruling that Fantino's email was a 'threat' as understood under the criminal code. However, according to the Crown the email was not sent to influence municipal official in the performance of an 'Official Act' therefore no crime was committed.

Mr. Diana told the court that Justice Brown had erred in ruling that Fantino's email was a 'threat' and offered various dictionary meanings of the word along with how the word 'threat' is used in other sections of the criminal code. However, when asked by Judge Crane to provide the court with a definition of the word 'threat' that the court could apply Mr. Diana was unable to come up with a clear definition.

In the end the Crown undermined their own case by pointing out that Mayor Trainer and Council had no control over whether 'Mr. McHale did any more forays into Caledonia', and when they told the court that the email could be summed up by saying that Fantino was just saying 'Give your head a shake, think before you open your mouth.'

I pointed out to the court that the Crown had just agreed with my case. That Fantino's email was meant to tell council that before they speak they need to 'think' and remember Fantino's threats before they speak. Clearly the intent was to control the free speech of council members.

The court was told that this intent to control is also shown by the fact that Council could not legally control whether I did a rally in Caledonia therefore the email makes no sense unless Fantino is pressuring the Council to act to stop me from coming to town. It was pointed out that the threats were against Haldimand County and not against Gary McHale.

The court was told the only way to understand Fantino's email was in response to Mr. Grice's statement in his email when he stated, "in fact the opposite is true". This phrase tells us that Mr. Grice had not been trying to 'stop McHale from coming into Caledonia' but that the 'opposite is true'.

Judge Crane raised the issue of whether Councillor Grice was free to speak out at council meetings, which the Judge stated were public meetings, and whether speaking out at such meetings was an 'official act' as a council member - the Crown said no it is not an 'official act'. I stated it was.

In the end the Judge must decide whether Justice Brown was correct in declaring Fantino's email was a criminal threat and whether that threat was to influence the 'official act' of an elected municipal official.

Amazingly, what Fantino was trying to do through a threat (control free speech of council members), Haldimand Council just did by voting to silence individual councillors. Our freedoms and our democratic rights are under attack and unless we stand against it we will wake up one day and find that we have no rights at all.