Fantino's intent essential, not his influence

by Bill Jackson - The Regional

January 13, 2010

Whether OPP Commissioner Julian Fantino influenced municipal councillors in a letter is not as important as whether he tried to.

Fantino has been charged with influencing or attempting to influence members of Haldimand Council in an official capacity after a Superior Court Justice granted Gary McHale's mandamus application last  month.

According to Justice David Crane who issued process for the charge, proving causality isn't necessarily an essential element of such an offence.

"I observe on the record in this application there is evidence of influenced behaviour by the Mayor and County Council in response to the Julian Fantino letter," wrote Crane in his Dec. 31 decision. "However, in my view this is not an essential element of the offence..."

Crane referred to the Superior Court judgement of R. v. Gyles (2003).

The court stated that: "It is irrelevant whether or not the resultant actions of Mr. Gyles were altered by the receipt of money. It is clear from the decision... the Crown is not required to prove that any official actions were altered as a result of the benefit. One can well understand the principle underlying Parliament's decision not to make proof of a change in action an essential element of the offence. If officials could take money for doing what they were elected to do, it would, as the Crown put it, 'reward the subtle'."

The charges against Fantino relate to a letter he sent to Haldimand Council in April of 2007 in which he promised to sue Haldimand Council, bill the municipality for the costs of policing and recommend that the Ministry of Community Safety and Correctional Services not renew the contract between the OPP and Haldimand County if any of his officers were injured during a flag raising march organized by McHale.

He also encouraged municipal officials not to attend any of McHale's rallies and said he would hold them publicly accountable.

McHale organized several rallies and protests to illustrate what many perceived as two-tiered justice that was predominant in Caledonia during volatile disputes involving natives and non-natives.

Fantino's controversial letter to council was in response to an email sent by Coun. Craig Grice to one of his constituents that essentially supported anyone's right to free speech, Trainer noted.

"He (Fantino) misinterpreted what Craig was meaning," she said. "He took it as if council was supporting Gary McHale and what he was proposing."

Councillors soon learned that OPP cannot refuse to provide policing to a municipality under Ontario's Police Services Act.

"A municipality has to have policing and if you don't have it via contract under section 10 you have it via section 5.1 of the Police Services Act," according to Haldimand Corporate Services GM, Karen General. "You're essentially billed for actual costs of services being delivered but they essentially can't abandon the municipality."

The county also received a promise in writing that the province would not bill the municipality for the cost of policing Caledonia during the Douglas Creek Estates standoff.

"Never was I influenced or intimidated," said Grice, who received a legal opinion to see if Fantino's ultimatums were plausible.

The commissioner's letter was "disappointing" and a "Major overreaction," the councillor told The Regional News.

In a follow-up message to Fatino, Grice stated that council "stands accountable only to our Constituency with our autonomy never to be compromised...

"To appear to intimidate or threaten a particular Councillor or Council as whole, sends an irresponsible message. Mr. Fantino, you and your lead officers have asked for open communication and advice on how to deal with any number of issues and followed your own direction for which you will remain accountable. This letter can be seen as an effort to shift that blame through your words of reaching an 'understanding' with this Council. I would like to reiterate to you, that my only understanding was that we all wished that no one ever gets hurt and would send out a message, that anyone who wished to cause unrest to the situation from either side, is not welcome in Haldimand County."

Following Fantino's letter, council took more caution, Trainer conceded.

"I took it as a threat," she said.

"I think we were very cautious about what we did and what we said. We always were, but we began thinking 'Whew, we have to really be careful here.'"

Last week the Ministry of the Attorney General informed McHale that it will be taking over the prosecution of the case against Fantino.

The Crown could stay and withdraw the charges, but McHale hopes that won't happen given the public scrutiny and media attention that has been focused on the issue.

If charges are withdrawn, McHale said he will appeal to a higher court to have the charges reinstated.

"Some people don't believe that charges are important because they're fuelled by a public citizen, but what's interesting to note is that a Superior Court judge has already reviewed the essential elements," he said.

"Evidence has already been pre-screened and in one sense has the backing of a Superior Court ruling."

If found guilty of the charges, Fantino could face up to five years in jail.