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Ontario to appoint Crown to prosecute OPP chief

Shannon Kari,  National Post 

Jan 12, 2010

The Ontario government is going ahead with plans to appoint one of its own Crown attorneys to prosecute Julian Fantino, even though it tried to stop criminal charges against the Commissioner of the OPP from going ahead.

A provincial Crown will first address the matter in court on Friday morning.

The province also indicated yesterday that it will not ask the Commissioner to step aside while he fights allegations that he tried to intimidate municipal politicians.

Mr. Fantino is facing a criminal charge of attempting to influence municipal officials as a result of an email he sent in 2007 to a councillor in Haldimand County in Southern Ontario, related to the Caledonia land dispute.

In the email, Mr. Fantino pledged that he would recommend that the OPP policing contract with the county "not be renewed" if it continued to support Gary McHale. The private citizen has been an outspoken critic of the OPP and its handling of the native protests in Caledonia. A copy of the email was sent to other senior OPP officers, the secretary of the provincial Cabinet, as well as the communications director and chief of staff for Ontario Premier Dalton McGuinty.

A justice of the peace issued a summons last week that requires Mr. Fantino to appear in court to answer the charge, following a Dec. 31 ruling by a Superior Court judge.

The content of the email sent by the OPP Commissioner "contains evidence on each of the essential ingredients" of the offence, said Justice David Crane. The judge ordered the justice of the peace to "issue process" against Mr. Fantino, which is the same as approving the filing of a criminal charge.

The case began as a private prosecution under the Criminal Code by Mr. McHale. The Supreme Court of Canada has described private prosecutions as being similar to grand jury proceedings in the United States. Despite the unusual route, the legal weight of the charge is no different than if filed by police, explained James Stribopoulos, a professor at Osgoode Hall law school in Toronto. "Now that process has issued, Mr. Fantino is indeed facing a criminal charge," he said. Mr. McHale was informed by the Ministry of the Attorney-General that it intends to appoint a Crown from its Justice Prosecutions Unit to handle the case. However, when Mr. McHale appeared before Judge Crane, two senior Crown lawyers representing the Attorney-General argued that the motion brought by Mr. McHale should be dismissed.

The prosecution of Mr. Fantino will be assigned to a Crown attorney "with no previous involvement with his file," said Brendan Crawley, a spokesman for the Ministry of the Attorney-General.

"The fact that the charge involves a senior police officer does not in itself give rise to a conflict of interest," said Mr. Crawley, who added that the Attorney-General is "independent" from the Community Safety ministry, which oversees the commissioner of the OPP. It is a long established doctrine though, that the Crown is considered "indivisible" in law.

While the ministry has "absolute discretion" as to how to proceed with the case, it should retain a lawyer from outside the province to prosecute, Mr. Stribopoulos said. Otherwise, if the provincial Crown decides to drop the charge, "it would be feeding the very unfortunate impression that Mr. Fantino received special dispensation," said the criminal law professor.

The decision of the province is not a surprise, Mr. McHale said. "It shows you the double standard in the McGuinty government." He promised to resume his legal battle if necessary. "If the charge is stayed it becomes my option to bring it back before the Superior Court and show the Crown has acted inappropriately," he said.