The Regional - by Gary McHale
June 16, 2010
It is hard to imagine that a document passed into law over 300 years ago could have such a legal impact for the people of Haldimand County as the 1688 Bill of Rights. The Bill of Rights was established to ensure that people's 'Liberties might not again be in danger of being Subverted' by the Crown.
The Subversion the Bill of Rights speaks about is when the Crown - police and prosecutors - use their discretion to exempt certain people from criminal charges and/or prosecution. The Bill of Rights states, "the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal."
The 100 years leading up to 1688 is considered by some as a dark chapter in British history. In the 1640s there was a civil war which ended in 1649 with Oliver Cromwell having King Charles beheaded. Forty years later Parliament enacted the Bill of Rights in 1688 which directly affects all Canadians to this day.
The battle that ensued in the 1600s was whether the Crown or Parliament would rule Britain. For generations Kings had believed in the Divine Right of Kings which meant they were subject to no earthly authority, deriving their right to rule directly from the will of God.
The Crown, the King, and his agents (the army, police and prosecutors) believed they had complete discretion to do as they pleased while parliament was limited to dealing with taxation and writing laws. It was commonplace for the Crown to exempt individuals or groups from the enforcement of the laws passed by Parliament.
The Crown claimed, sounding much like the OPP and Crown prosecutors today, that they had the discretion to decide who to arrest and prosecute. The King believed that he was not accountable to any earthly authority.
While today we generally see the Crown and Parliament as the same - as one government - it is not true. In theory Parliament remains the Will of the People to enact laws and institute taxation while the Crown is the enforcement of those laws - i.e. Police and Crown Attorneys. Ontario has the Crown Attorneys Act which provides the legal basis for a lawyer to become a Crown Prosecutor.
The Crown, the OPP and Crown Attorneys, continue today to believe they have unfettered discretion to enforce or not to enforce the laws passed by Parliament which are enacted by the Will of the People.
In the 1970s the Province of Manitoba publicly stated they would not charge or prosecute native people who violated hunting and fishing laws. On Nov. 14, 1977 the Manitoba Court of Appeal (R. v. Catagas) ruled that such a policy was illegal. In this ruling the court quoted from sources back to the 1688 Bill of Rights. The following are some of their statements:
"The Crown may not suspend laws or the execution of laws without the consent of Parliament; nor may it dispense with laws, or the execution of laws..."
"In a civilized country priding itself on equality of all people before the law, a special dispensation in favour of a particular group would hardly be a matter suitable for public discussion."
"Not every infraction of the law, as everybody knows, results in the institution of criminal proceedings. A wise discretion may be exercised against the setting in motion of the criminal process. A policeman confronting a motorist who had been driving slightly in excess of the speed limit may elect to give him a warning rather than a ticket... And the Attorney General may in his discretion stay proceedings on any pending charge, a right that is given statutory recognition in ss. 508. But in all these instances the prosecutorial discretion is exercised in relation to a specific case. It is the particular facts of a given case that call that discretion into play. But that is a far different thing from the granting of a blanket dispensation in favour of a particular group or race. Today the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants, and the next day in favour of Jews. Our laws cannot be so treated. The Crown may not by executive action dispense with laws. The matter is as simple as that, and nearly three centuries of legal and constitutional history stand as the foundation for that principle."
It is not hard to see from these quotes that over 300 years the discretionary right of the police and Crown to exempt certain classes of people from criminal prosecution is illegal.
While the Ontario Government has not been so foolish as to publicly declare an exemption for native protestors and for OPP officers, the Crown has repeatedly stated in their factums presented in court that due to the Henco ruling in 2006 police and natives are to receive special treatment.
In all practical terms this really means that the Crown will not prosecute OPP officers who violate the criminal code and will not prosecute natives if they break certain laws.
While the OPP and the Crown had no problem charging and prosecuting Doug Fleming with blocking the road for 30 minutes, they have repeatedly refused to charge anyone for the six weeks of blockades of roads and railway lines in 2006. The Crown directly stopped me from laying mischief charges against Native Protesters who blocked the road for four days in 2008.
Meanwhile, the Crown spent 30 months and a half million dollars to prosecute me claiming that I suggested to someone to block the road.
So non-natives are prosecuted for merely suggesting blocking the road while natives who actually block the road for six weeks are never prosecuted.
The OPP and the Crown claim this is simply exercising discretion.
I believe it is the same battle that has been fought for the past 300 years to ensure equality of all people. The People of Haldimand County and of the whole province do not realize just how much the Crown has reversed 300 years of citizens' rights.
If we do not stand for our Rights today then what legacy will our children inherit?