by Gary McHale - The Regional
January 6, 2010
On Dec. 31 Superior Court Judge David Crane granted my Mandamus application which was seeking a criminal charge to be issued against Commissioner Fantino for his threatening email he had sent to Haldimand Council back on April 7, 2007.
Soon after this email was sent Mayor Trainer repeatedly stated during media interviews that she felt threatened by it. Soon afterward Merlyn Kinrade and others filed police service complaints against the Commissioner.
It was the first time in the history of Ontario that anyone filed a complaint against a Commissioner of the OPP.
Monte Kwinter was the minister in charge of the OPP at the time and he hired an outside lawyer to review the case. Mayor Trainer expressed shock when Monte Kwinter publicly declared that after reviewing the investigation report Fantino was cleared of any wrong doing. The reason the Mayor was shocked was because the same day she was scheduled to meet the lawyer in order to provide more information. She testified in court that she received a call from the lawyer stating he had to meet with her again because he needed to "soften the report against Fantino". Later that day she stated she received another phone call telling her the meeting was cancelled because he had to "write the report the way he was told to".
Merlyn Kinrade invited Mayor Trainer to go with him to the Ontario Ombudsman to file a complaint about this waste of taxpayers' money on an investigation that had already been determined to clear Fantino. Mayor Trainer presented evidence at the Ombudsman's office but unfortunately by law the Ombudsman cannot review police issues.
The only option left to hold Fantino accountable was to file a criminal charge against Fantino. Therefore, I filed the charge using the transcript testimony from Mayor Trainer.
The original pre-enquete was before Justice of the Peace Dave Brown who stated, "I would characterize this e-mail as threatening, ill-conceived and ill-advised. Frankly, I found it shocking."
However, Justice Brown ruled, "I also find that there is no evidence of causation between the sending of the e-mail and the doing or not doing of any official acts by the elected officials... I decide not to issue process."
I filed an Appeal via an Application of Mandamus to have the Superior Court order Justice Brown to issue process of the charge. Judge Crane heard the Mandamus on Nov. 5, 2009. The following is part of his ruling on Dec. 31:
"The Fantino email states that Ms. Trainer and each of the named Councillors were not to support the public attendances of Gary McHale in Caledonia, nor to make statements of support of Mr. McHale to the residents of Caledonia."
"The issue before the Justice on the pre-enquete was whether Julian Fantino made a threat to influence or in an attempt to influence Mayor Trainer and/or the Council of Haldimand County to perform or fail to perform an official act."
"The evidence on the record is that Councillor Grice sent an e-mail letter to his constituent using the official communication facility of Haldimand County Council. The content of the Grice communication was upon that Councillor's position with regard to public rallies carried on by the complainant in this information, Gary McHale. The letter of Julian Fantino to Council made specific reference to the activity being the aforesaid Grice Letter as that which is to be stopped."
"This evidence (the Grice letter) may reasonably be categorized as communication by an official upon an official channel, under the duties of that official (Councillor Grice) to communicate Haldimand County municipal business, and in particular Ward 3 business (the Town of Caledonia), to a constituent with that Ward."
"The further evidence on this record is that Mayor Trainer and Councillors, including Mr. Grice, had appeared as Municipal officials of public rallies held or organized by Mr. McHale. These rallies broadly speaking involved Mr. McHale's critical views on the standard of policing and policing policies for the Town of Caledonia. This letter of Julian Fantino would be reasonably read as to enjoined and prevent further such support and appearances in the future."
Judge Crane concludes, "The learned justice of the peace declined to issue process. It is his duty to do so on this record..."
This means that Judge Crane has ordered the Justice to issue the charge of Influencing a Municipal Official by means of threats. Fantino is now charged but innocent until proven guilty in a court of law.
It should be understood it is fundamental to all democratic societies that elected officials be allowed to freely speak out on public issues. History has shown a pattern by Fantino whereby he uses his office to threaten, intimidate and slander people into submission.
It is unfortunate Haldimand Council caved into the threat however, many of us refused to.
It has taken us two years to bring this charge about. We had to establish the case law in Canada in order to firmly establish the rights of average citizens to hold public officials criminally liable.
We still have a long road ahead. The Crown has appealed one of Judge Marshall's rulings which requires me to present a legal argument on Jan. 14th. This case is vital to ensure that the Crown cannot stop people from presenting evidence before a judge. It is the Crown's position that they have the authority to stop people from appearing before a judge.
Another case has been sent to Divisional Court which was to be heard in Feb. 2010 but there was a court mix up and the case has being delayed. This case is also vital because the Crown has been staying charges against OPP officers and native protesters when there is solid evidence to support the charge.
It is the Crown's stated position that the Henco ruling from 2006 means the Crown should NOT be prosecuting natives and non-natives the same way. Divisional Court will hear that such a view by the Crown constitutes Institutional Racism and is a violation of the Charter of Rights and Freedoms.
There is still a full year of court action before the rights of average citizens are firmly safeguarded. This will ensure another Caledonia will never happen again.
The coming year will be interesting.