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Ruling clears way for threat charge against Fantino

Danielle Wong
The Hamilton Spectator

(Jan 2, 2010)

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 ruling a few months ago 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 required qualifying elements.

McHale, who received the court ruling Thursday afternoon, said the ruling would set a standard for others laying private prosecutions.

"I think it's a huge ruling," he said. "It's really a slap across the face of the government."

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

This was in response to an e-mail Fantino sent to Haldimand County council in April 2007 stating he would "strongly recommend" to his minister that the OPP contract with Haldimand County not be renewed if his officers were injured "as a result of further forays into the community by McHale and his followers."

Fantino sent the note after Haldimand Councillor Craig Grice sent what McHale calls a "semi-positive" e-mail to a resident in his riding about McHale's efforts in Caledonia. The message was then posted on the Caledonia Wake Up Call website.

Toronto lawyer and past Ontario Bar Association president James Morton said he does not see the charge going very far.

"I would not be surprised at all if there's a stay in the proceedings by the Crown attorney," he said.

The allegations against Fantino do not seem to fit under what the Criminal Code normally considers threats, he said, adding the tone has to be closer to "if you don't do this, we'll shoot this puppy."

In August, justice of the peace David Brown decided Fantino's e-mail could be considered threatening to councillors, but there was not enough evidence it was intended to influence their public duties, McHale said.

The activist appealed the ruling. In overturning the decision, Crane acknowledged the actions Fantino's e-mail intended to sway could be considered official acts.

The judge noted it was part of Grice's public duties as a councillor to communicate with a resident in his riding, McHale said.

Sergeant Pierre Chamberland of OPP corporate communications said he could not comment because he had not seen the court ruling.

"The tricky thing is ... there hasn't been a case like this," McHale said. He added the ruling is a landmark for citizens fighting for free speech or trying to lay private charges.

McHale and the OPP commissioner have a history of facing off.

The activist, who is representing himself on a charge of counselling mischief not committed in a separate case, has suggested Fantino unfairly targeted him for arrest.

On the other end, Fantino has accused McHale of having "baited police" and "agitated" between native groups and townspeople during the Douglas Creek Estates occupation.

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