Three Years Later: Fantino, McLean and Kwinter

by Gary McHale - The Regional

Jan 12, 2011

Just before Christmas Superior Court Judge Gilthero issued an order that the Crown in Cayuga was to serve notice to Julian Fantino, ex-Insp. Dave McLean and ex-Minister Monty Kwinter that on April 8, 2011 the Superior Court will hear evidence regarding a criminal allegation against them. As such, they are permitted to have legal counsel present in court to argue against the allegation.

According to the Application filed in court, the original allegation was filed in Aug. 2008 on a charge of Common Nuisance which states that anyone who "... fails to discharge a legal duty and thereby endangers the lives, safety, health, property or comfort of the public" has committed an offense.

It is alleged that ex-Insp. Dave McLean, then detachment commander in Haldimand and thus considered the Chief of Police, failed to perform his duties and thereby endangered the life and safety of Sam Gaulteri who was seriously beaten at the home he was building for his daughter at Stirling Woods in Caledonia. While the OPP knew the dangers of allowing another illegal occupation they took no steps to end the month long occupation which resulted in the near death of Mr. Gaulteri.

It is alleged that McLean failed his duty according to the Police Service Act which states that all officers must preserve the peace, prevent crimes and other offences, assist victims of crime and apprehend criminals and other offenders. For the one month prior to Mr. Gaulteri being attacked the OPP, under Mr. McLean's command, neither prevented crimes nor apprehended criminals which then endangered the people of Caledonia.

It is alleged that ex-Commissioner Fantino had a duty under the Police Service Act to ensure all OPP detachments fulfill their duties. Mr. Fantino had continually failed to ensure that crimes were prevented and criminals were apprehended. Neither did he order the end to the illegal occupation at Stirling until after Mr. Gaulteri was attacked.

It is alleged that Monty Kwinter, Ex-Minister of Community Safety & Correctional Services, which is responsible for the OPP, failed to do his duty to ensure adequate and effective police service was provided at the municipal level. Mr. Gaulteri was attacked in Sept. 2007 a full 18 months after the occupation of DCE started in Caledonia. The Minister had plenty of time to fulfill his duties to ensure police service in Haldimand County.

The Crown in Cayuga has done its best to frustrate the course of justice by directly interfering with this case since I filed it back in 2008. In the first pre-enquete the Crown withdrew the Information [pre-charge paperwork]  before any evidence was given in court. They stated in court, "it is the position of the Crown that the charges that have been laid by Mr. McHale constitute an abuse of process and accordingly the Crown is withdrawing them."

I appealed the case and Judge Marshall heard it in June 2009 and the Crown repeated their allegation that I was abusing the court system and that the Crown has "... unfettered right to withdraw informations that are before the court... "

On July 2, 2009 Judge Marshall strongly ruled against the Crown and stated, "This case raises the important issue of a citizen's right to lay criminal informations against public officials and for those informations to be heard before an independent judge. This is a long held and hard fought right."

The Crown didn't like Judge Marshall's ruling and appealed the case to the Ontario Court of Appeals. Again the Crown presented the argument that I was abusing the court system but on May 14, 2010 the court upheld Judge Marshall's ruling and ordered the case to be re-instated and for a new hearing to be set before a Justice of the Peace.

The Crown had frustrated the course of justice for two full years but the case was finally heard in Cayuga and on Sept. 28, 2010 the Justice of the Peace refused to issue process of the charge. According to the court Application the Justice refused to issue process because of his understanding of the Ipperwash Inquiry and the position of the Provincial Government on the issue of policing Aboriginal occupations.

The Application, to be heard on April 8, states that the Justice is barred from considering either the Ipperwash Inquiry and/or the Provincial Government's position on policing. Neither of these change the duties of a police officer as stated in the Police Service Act. The Justice can only review whether there is some evidence for each of the essential elements of the alleged charge and is compelled to issue process if the evidence exists.

At issue is whether the decision to allow a second sub-division in Caledonia to be illegally occupied endangered the public. While the acts of the OPP may have served the purpose of the McGuinty Government in order to appease Native Protesters, these decisions did not enforce the law nor provided protection for the residents of Caledonia.

By the time the Superior Court rules on this Application, this case will have been in the court system for three years. Some may see the process as hopeless and designed to discourage people from seeking justice.

While there is no doubt in my mind that the Crown in Cayuga has acted to cover for OPP Officers and will do everything they can to discourage non-natives from using the system, what are the alternatives? I guess your options are to give up, turn a blind-eye to the suffering of your neighbours and get bitter and cynical over the issues as many Canadians do when it comes to political issues. Optionally, you can become radical and pick up arms and take the law into your own hands just as Native protesters have done.

The only real option is to stand up for your rights. You stand up to the abusers and the bullies and send a powerful message that it doesn't matter if it takes ten years, those who abused their authority will be held to account - they can run but they cannot hide.

Fantino, McLean and Kwinter remain innocent of any allegations and the above is merely an allegation of a criminal act which the court must decide on based on the merit of the evidence.