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OPP boss must face influence charge: judge

Caledonia Dispute; Alleged email threat over land occupation

Kenyon Wallace and Matthew Coutts,  National Post 

January 2, 2010

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 Commissioner Julian Fantino, after the former Toronto police chief sent an allegedly threatening email to politicians in Caledonia, Ont., about supporting protests against aboriginal land occupation.

Under the Dec. 31 Ontario Superior Court 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 Commissioner wrote that he would hold the county directly accountable for any injuries suffered by OPP officers during protests by a contentious 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.

The accusation of influence peddling had been dismissed by a lower court earlier this year, but was ordered to be processed by Judge David Crane this week.

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

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

The ruling was hailed as "huge" by Mr. McHale, 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, leading to citizen protests. 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.

In his email, Commissioner Fantino called Mr. McHale a "lightning rod for confrontation and potential violence" and took umbrage with apparent support shown by Haldimand Councillor Craig Grice.

"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 fallout," he wrote.

Mr. Grice said on Thursday Commissioner Fantino's letter was sparked by an email he had sent to a local citizen -- later posted online--in which he criticized Mr. McHale but commended the activist for bringing attention to the Caledonia standoff. He said Commissioner Fantino's letter intimidated him.

"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," Mr. Grice said.

Earlier this year, a justice of the peace refused to issue a summons to Commissioner Fantino, finding that while he had no doubt Mayor Marie Trainer and Mr. Grice saw the email as threatening, there was no evidence they were influenced by it.

However, Ontario Superior Court Judge Crane said in his ruling on Thursday that determining whether the Mayor and county council had been influenced was not an essential element in deciding whether to issue the summons. He therefore ordered a 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.

Steve Skurka, a partner at Toronto law firm Skurka & Spina LLP, said the case will now return to lower court so a judicial officer can "issue process." The case will be turned over to the Ministry of the Attorney-General and, as in any other prosecutions, it will be up to the Crown to determine how to proceed with the charge.

"They could still withdraw the charge and not proceed with it, that's a different issue... but that adds a layer of accountability. That's not something to be done capriciously, when you have a Superior Court judge saying issue process," he said.

Valerie Hopper, spokeswoman 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."