Miscarriage of justice ends well

by Gary McHale - The Regional

May 11, 2011

Whenever I get ready for a court appearance I am up by 5 am to review the case and to consider what tricks government lawyers are going to try in court. Most of the time the tricks are legal nuances that are allowed, which any good lawyer should try to do, but in other cases the tricks are simply unlawful.

In preparing for my last week's court appearance I had rushed an order for transcripts at a cost of $230 in order to have exactly what OPP Officer Wesley Barnes testified to in court at my first bail variation hearing. Last week I reported on his poor testimony. I was expecting him to suddenly change his story and fill in the gaps in his testimony to justify travel restrictions.

Christie Blatchford has been a court reporter for 30 years and summed up Officer Barnes' testimony in the Globe by stating, "Now, it may be that there is somewhere a police officer who has looked more ridiculous by his own testimony, but I can’t think of one offhand."

On this appearance Justice of the Peace Dan MacDonald ruled, correctly in my view, that he didn't have jurisdiction to hear the case because of what was done in court three weeks ago. He stated that I had signed a document in court agreeing to the travel restrictions before another Justice of the Peace and therefore he could not change the document. I had to appeal the case to Superior court.

This is fair enough until you hear what happened three weeks ago. It was the Justice of the Peace and the Crown who talked me into signing documents claiming, on record, that my signing had no legal implication. In fact, before signing I stated, "I do not know the legal implications, you [the Justice will] have endorsed the restricted areas, because the document then will be between your signature and my signature for all the terms [travel restrictions]."

The Justice then informed me that there were no legal implications for signing the new document. I, the non-lawyer, was correct because logic tells you that any document that has a Justice's signature on it and your signature would be a legal commitment.

Any appeal to Superior Court would be automatically successful due to fact that I was mislead into signing the document. To the Crown's credit, senior Cayuga Crown Alex Paparella asked for a few hours to review the transcripts and after an adjournment she consented to lifting all travel restrictions placed on me by Officer Barnes.

It is unclear the reasons why the Crown did this - she certainly is not a big fan of mine. In all likelihood it is due to the error by the original Justice is convincing me to sign the court document. In this case, the Crown must be credited with quickly correcting a miscarriage of justice which ended well by all travel restrictions being removed.

There may be other reasons the Crown didn't want the case appealed to Superior Court. Before a Justice of the Peace police officers can say almost anything they want and it becomes the gospel truth. Officer Barnes' vague testimony about the facts appeared to be quite acceptable before the Justice but before Superior Court the Officer would have been held to a higher standard of evidence.

Also, in most cases police officers don't have to take the stand in Superior Court on bail variations because you are appealing the Justice's ruling to keep restrictions, not the police decision to place restrictions upon you. In my case, due to the error, it ensured OPP officers would have to take the stand in Superior Court and provide proper evidence to the court.

Furthermore, the Crown and Justice in the original hearing denied me my rights to challenge the strength of the Crown's case against me and denied my right to challenge the credibility of Officer Barnes. However, on appeal, a Superior Court Judge would not have made the same errors in law. According to the Supreme Court of Canada, during bail hearings, the court must review the strength of the Crown's case.

In my case, I was told about 25 times to stop raising questions about the strength of the Crown's case. Officer Barnes testified he didn't know what the criminal code says about trespassers on private property nor about what it says about removing trespassers. He testified that he didn't know what the criminal code states about who should be charged if there is an assault due to a trespasser. Also, he didn't take the time to review the criminal code before arresting me nor had any knowledge that Tom Keefer had any permission to be on the private property.

Both the OPP and Crown want to overlook the fact that the criminal code is clear that the trespasser, not the lawful user of private property, is to be charged with an assault if the trespasser resists being removed from the property. The law states, "a trespasser who resists an attempt by a person who is preventing his entry or to remove him, shall be deemed to commit an assault..." - it must be the trespasser who is charged with the assault not the legal user of property.

Regarding questioning the credibility of Officer Barnes higher courts have ruled that, "the crown must call evidence either in the form of viva voce testimony or affidavits and that the evidence must be subjected to cross-examination to test its credibility."

This case is perfect proof of how the OPP and the Crown's office will charge non-Natives without any hope of a conviction while allowing other crimes committed by Natives to go without any charge.

Not only did the OPP refuse to aid me in my repeated request to remove Tom Keefer, they were witnesses to non-Natives being assaulted by Natives and still remain unwilling to lay any charges.

Repeated requests by the victims to have them charged have resulted in no charges - No surprise there.