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OPP head Fantino could face charge of threatening public officials

Kenyon Wallace and Matthew Coutts,  National Post 

December 31, 2009

Julian Fantino, the Commissioner of the Ontario Provincial Police, must face an accusation that he illegally tried to influence public officials by threatening them, a Criminal Code offence, a court has ruled.

A judge has ordered a justice of the peace to issue a charge against Ontario Provincial Police Commissioner Julian Fantino, after the former Toronto police chief sent an allegedly threatening email to Caledonia politicians

Under Ontario Superior Court Judge David Crane's Dec. 31 order, Commissioner Fantino will face one count of attempting to influence a municipal official in relation to an April 7, 2007 email to Haldimand County's mayor and councillors. In the email, Commissioner Fantino warned the politicians not to support anti-occupation protests. The Comissioner wrote that he would hold the county accountable for any injuries suffered by OPP officers during protests by a group known as "Caledonia Wake Up Call."

He also warned that he would advise the Ministry of Community Safety and Correctional Services not to renew the OPP's contract with Haldimand County for policing once it expired if councillors supported the protest group, led by activist Gary McHale.

OPP spokesman Sergeant Pierre Chamberlain would not comment on the decision, saying that the force had not received formal notice of Judge Crane's ruling.

"It's not a finding of guilt, it doesn't have that weight," Andrew Bell, the lawyer who represented the Attorney General of Ontario, told The Canadian Press on Thursday. "There's a charge before the court that will have to be dealt with."

A conviction for influencing or attempting to influence a public official can carry a sentence of up to five years in prison.

Judge Crane's order was hailed as "huge" by Mr. McHale, a private citizen who brought the criminal charge against Commissioner Fantino.

"The OPP and the Crown have acted as though somehow the police and government are exempt from criminal charges," he said. "This is an attack on democracy itself. Because there's a hands-off approach to Native crime, citizens aren't protected by the Criminal Code."

In 2006, members of the Six Nations of the Grand River began demonstrating in Caledonia, about 20 kilometres southwest of Hamilton, purportedly to raise awareness about land claim issues in Ontario. They have been in control of a disputed parcel of land since then, resulting in clashes between Native protestors, residents and police. Residents caught in the crossfire have complained that the Ontario government and OPP have failed to protect them.

Commissioner Fantino's email, which appears to have been copied to 11 senior provincial officials, including Premier Dalton McGuinty's chief of staff, takes issue with comments allegedly made by Haldimand Councillor Craig Grice in an email in which the councillor appears to support the protest organizer.

"Now, apparently, we have Councillor Grice commending someone that he knows is a lightning rod for confrontation and potential violence," wrote Commissioner Fantino. "When I appeared before you several months back I came away believing that we had a mutual understanding about the detrimental effect that McHale and his followers were having on Caledonia. I know that Councillor Grice has some personal issues that he finds particularly aggravating, however, we never expected that he would fall prey to McHale's propaganda and it is now up to you as a Council to deal with the fall-out."

Mr. Grice said Thursday the incident that sparked Fantino's letter was an email Mr. Grice had sent a local citizen, which ended up posted on Mr. McHale's website.

In his email, Mr. Grice told the resident he did not think the attention that Mr. McHale's protests brought to the issue was a bad thing, but he also voiced concerns about the activist. He said Commissioner Fantino's letter intimidated him.

"It shocked me, [but] it never stopped me from voicing my opinion against the OPP on certain issues. It never stopped me from patting them on the back when they had done the job I believe my residents wanted to see done either," Mr. Grice said.

"I believe there is no doubt that the email sent was inappropriate. It shocked me, coming from the commissioner. It was disappointing to see it happen."

In August of this year Justice of the Peace David Brown refused to issue a summons to Commissioner Fantino for allegedly violating Section 123 (2) of the Criminal Code of Canada, which states it is an offence to influence or attempt to influence a municipal official in municipal activities by means of threats. In his ruling Justice of the Peace Brown stated "there is absolutely no doubt in my mind that this email was perceived as threatening by the Mayor and by Councillor Grice." He ruled he could not determine whether the threats influenced the politicians acting in their official roles and therefore refused to issue the summons.

However, Ontario Superior Court Judge Crane said in his ruling Thursday that determining whether or not evidence existed that the Mayor and County council were influenced by Commissioner Fantino's letter was not an essential element in deciding whether to issue a summons. He therefore ordered the justice of the peace to sign the charge brought forward by Mr. McHale in a process known as mandamus, a rare order compelling a lower court to perform its duties properly.

Mr. McHale claims that as soon as council received Commissioner Fantino's letter, official support for his efforts dried up.

"The intimidation did work," he said.

Speaking to the National Post in April 2007, Haldimand County Mayor Marie Trainer said she took Commissioner Fantino's email as "threatening."

"I thought it was very inappropriate," she said at the time.

In 2007, Ontario's minister of community safety appointed a lawyer to investigate the circumstances.

Caledonia resident Merlyn Kinrade spoke to the lawyer, and was one of several residents designated as witnesses when Mr. McHale first launched his private prosecution against Commissioner Fantino. He said he felt his mayor and councillors had been spooked by the email.

"What the man has done to our representatives here, he has pretty well put the muzzle on them. Nobody says anything bad," he said.

"OPP officers, police officers of any ilk across this nation, have no right to try and influence... elected officials. That was a blatant disregard for his office."

Valerie Hopper, spokesperson for the Ministry of the Attorney General, said the ministry was aware of the ruling and would be reviewing it.

"But as this matter is before the courts, we won't be commenting further at this time."

Steve Skurka, a partner at Toronto law firm Skurka & Spina LLP said the case will now return to lower court so a justice of the peace can "issue process." Following that, it will be up to the Ministry of the Attorney General to decide how to proceed with the charge.

National Post