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Judge rules that Caledonia activist can proceed against Fantino

December 31, 2009
Danielle Wong
Hamilton Spectator

An Ontario Superior Court judge has ruled OPP Commissioner Julian Fantino can be charged with trying to influence municipal officials by means of threats.

Justice David Crane's decision overturns a previous ruling by a Justice of the Peace who argued Caledonia activist Gary McHale's attempt to lay a private charge against Ontario's top cop did not meet all the qualifying elements required for the charge.

McHale, who received the court ruling Thursday afternoon, says it is the first time this particular charge has been laid in Canada. "I think it's a huge ruling. It's really a slap across the face of the government," he said.

In September 2008, McHale, who is known for publicly challenging the OPP for not always charging natives for alleged acts of civil disobedience, filed an order of mandamus stating Fantino should be charged under Section 123 (2) of the Criminal Code of Canada, which constitutes "influencing or attempting to influence a municipal official ... by means of threats" as an offence.

This was in response to an e-mail Fantino had sent to Haldimand County Council in April 2007 stating he would "publicly hold accountable Councillor (Craig) Grice AND Haldimand County along with McHale" in the event any of his officers "are injured as a result of further forays into the community by McHale and his followers."

The commissioner had sent the note after a "semi-positive" e-mail Grice sent a resident in his riding about McHale's efforts in Caledonia was posted on the "Caledonia Wake Up Call" website, McHale said.

The first court hearing was in August, but the charge was not permitted because Justice of Peace David Brown decided the e-mail could be considered threatening to council members, but there was not enough evidence the e-mail intended to interfere with the municipal officials' public duties, McHale said.

The activist appealed the ruling and Crane overturned the initial decision, acknowledging Fantino's email could influence councillors' public duties.

OPP corporate communications Sergeant Pierre Chamberland said he could not comment Thursday night because he had not seen the court ruling. "The tricky thing is ... there hasn't been a case like this," McHale said, adding the ruling is a landmark for citizens fighting for free speech and who are trying to lay private charges.

"Politicians have a legal duty, in my mind, to speak out on public issues," McHale said. "And this was clearly a public issue."