Does the Crown have the Right to Violate the Charter?

The Regional - by Gary McHale

June 9, 2010

On August 20, 2008 the Crown withdrew criminal charges of exhortation, intimidation and mischief against Floyd and Ruby Montour. The charges were filed through private prosecution due to the refusal of the OPP to lay any charge against the Montours for their repeated actions of blocking construction in both Hagersville and Cayuga.

Prior to laying of the private prosecution charges against the Montours the two business owners of the property in Cayuga had meetings with the OPP, Mayor Trainer and Buck Sloat who is councillor for Cayuga. The business owners even provided the OPP with a written statement making them their agent to remove native protesters from the property.

Faced with continued occupation of their property and certain bankruptcy the builders asked CANACE (Canadian Advocates for Charter Equality) to help find a solution. On June 12, 2008 the owners, speaking to the OPP stated, "We have asked you guys [OPP] to be our agents and to remove these people from our property. You chose not to. Now I am authorizing these people [CANACE] to act as our agents and collect evidence and photographs to start laying criminal charges."

The same day we videotaped the owners telling the Montours to leave their property, which they didn't, and taped the owners asking the OPP to enforce the law which the OPP didn't. Since OPP Sgt. Dan Michaud was the site commander he was asked why the OPP were not laying charges and he replied, "because there’s no criminal offence being committed."

He was asked about the criminal offence of mischief for blocking construction and he replied, "because according to the crown attorney, there is no mischief being committed here yet... I have to know who owns the land." When asked who he thought owns the land he replied, "I have no idea."

When asked whether the land title deed would be sufficient for him to decide who owns the land he stated, "No". The next question was " when the Ontario government says they back the title deed, they really don’t mean that the OPP back it?" he replied, "I didn’t say that". When asked whether the county's property tax bill would help him decide who owns the land he stated, "Stop, stop".

When he was told that "Natives are going to jail around the province for doing exactly what’s going on here" he stated, "Absolutely". He was immediately asked, "that must mean it’s illegal. It didn’t become illegal in another jurisdiction, but it’s legal here. So how come they can go to jail in Sharbot Lake, or out by Thunder Bay, or down in Deseronto, but they can’t go to jail here? Is there a different criminal code in this jurisdiction?"

He replied, "See the crown attorney and ask him."

Several times during this conversation Officer Michaud stated the Crown office had instructed the OPP not to lay charges against Native Protesters. While the OPP have repeatedly told the public that individual officers all had independent discretion whether to lay charges or not, it was clear that Officer Michaud didn't have any discretion to make any decisions.

The Crown's office and the OPP are to be independent of each other with both operating using their own discretion whether to charge and prosecute cases. This has not been the case in Haldimand County. While Natives can be arrested and jailed in other parts of the province for blocking roads and construction sites, in Haldimand County they are not. The principle, as stated in the Ontario Police Service Act, that the police are to 'ensure the safety and security of all persons and property in Ontario' doesn't appear to apply to Haldimand County.

Sorry folks but people throughout Ontario have the right to safety and security of their property against Native occupations and blockades but not in Haldimand County. Since the Mayor, Haldimand Council and the Police Service Board have done little to correct the problem, there is little hope that next year Native Protesters, who have promised to block the road to collect tolls, will be stopped.

While the Crown and the OPP refuse to uphold the Rule of Law, steps have been taken to ensure the safety and security of the residents of Haldimand County.

Charges were filed against the Montours which ended the occupation of the construction site in Cayuga and the builders were able to finish the sub-division. The homes have been sold, families have moved in which has increased business in the community.

Repeated filing of criminal charges against the OPP and filing of Mandamus to compel the issuing of charges has greatly limited so-called police discretion to stand by and watch crimes being committed. Several Superior Court rulings and the recent Court of Appeal ruling have placed new limitations on the Crown.

However, the judicial review of the Mountour charges at the end of June is a vital case before the court. Can the Crown prosecute or refuse to prosecute someone based on their race? Can the Crown withdraw charges against the Montours in order to fulfill the political will of the McGuinty government? Can the Crown tell the OPP not to arrest certain people merely because they are Native?

No person in Canada has ever won a judicial review against the Crown for deciding to withdraw a charge. While many would find this hopeless it should be remembered that no person in Canada had ever won a Mandamus to compel criminal charges until we did it - now it is commonplace.

So common, in fact, that our cases laws are now being quoted in courts in B.C. and throughout courtrooms in Ontario.

What happened in Haldimand County is such an abuse of the Justice System and a complete failure by all in positions of authority that I believe it will not be hard to prove the Crown has violated the fundamentals of justice guaranteed under Section 15 of the Charter by withdrawing the charges against Native Protesters.

A win against the Crown would in effect handcuff them and force them to treat the people of Haldimand County with the same standard of justice other citizens in Ontario enjoy.

It would bring an end to any future occupations or threats of violence since Native Protesters breaking the law would no longer receive protection from the OPP and/or the Crown.

A win would finally restore the Rule of Law to Haldimand.