In Court: Fantino, McLean and Kwinter

by Gary McHale - The Regional

May 25, 2011

This Friday the case against ex-Commissioner Julian Fantino, ex-Insp. Dave McLean and ex-Minister Monty Kwinter will be heard in Cayuga (10 am Open to Public) in Superior Court. I have alleged that each violated s. 180 of the Criminal Code (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.

In Aug-Sept 2007 Native Protesters illegally occupied Stirling Woods while the OPP stood by and watched as the seriousness of the situation increased to the point that Sam Gualtieri was attacked. The court must now decided whether there is evidence to support whether each of the named accused is criminally liable for failing to protect the public.

This case has taken 3 years to bring forward after numerous attempts by the Crown failed to label me as abusing the courts. Judge Marshall and then the Ontario Court of Appeals ordered the evidence to be heard.

The evidence is overwhelming that the OPP knew their duty as defined by the Police Service Act and by several court rulings. Senior OPP officers decided to not uphold the rule of law in Haldimand with the understanding that the non-Native public would be endangered by the OPP's lack of action. Such a decision was done for political reasons instead of concern for the residents of Haldimand. Throughout 2006 McGuinty proudly proclaimed he would handle the situation differently than Mike Harris - referring to Ipperwash.

While Fantino's goal in early 2007 was to paint me as the one endangering the public, his words are now being used in court to prove he knew that ongoing illegal occupations did endanger the public. On Sept. 20, 2007, the week after Gaultieri was attacked, Fantino sent out a press release which listed out 9 Native Protesters that were arrested for occupying Stirling. In the release Fantino states, "The OPP is working hard to maintain a safe and secure environment in which issues can be dealt with peacefully. Our job is to ensure that the rule of law prevails and this is what we are doing... strictly and absolutely enforcing the law to maintain public peace and order. We will continue to ensure that law-breakers, including anyone intent on provoking conflict in Caledonia, are identified and held accountable."

Great speech but too bad it was a week too late. By his own words he knew his duty was to "ensure the rule of law prevailed", that "strict and absolute enforcement of the law" does "maintain the public peace and order". He understood that illegal occupations and demanding money from builders does "provoke conflict in Caledonia". However, after one month of an illegal occupation at Stirling the ex-Commissioner, ex-Insp and ex-Minister in charge of the OPP had refused to uphold the rule of law and arrest the "law-breakers".

If the OPP had moved in and removed the protesters two weeks earlier then Sam Gaultieri would not have been hurt. This case is asking the court to hold key OPP Officers responsible for sacrificing people, like Sam, at the altar of political correctness.

The OPP and McGuinty like to tell the public that they are just doing what the Ipperwash Inquiry stated were "best practices" during Native occupations. However, a review of the Ipperwash Inquiry report demonstrates that the OPP is refusing even to follow the Ipperwash Report.

Supt. John Cain summed up the Ipperwash Report in the affidavit he filed regarding Edwards Landfill occupation. Quoting the Report he stated:

"A final best practice is strategic exercise of police discretion. Police discretion is fundamental to reducing the potential for violence at Aboriginal occupations and protests. Discretion may involve whether, when, or how enforcement action is taken to address alleged breaches of the law. This concept is easily misunderstood. It does not mean that anyone is above the law or that police services should have different standards for Aboriginal people. Nor does it mean that the rule of law and public order are somehow subservient to Aboriginal interests. On the contrary, the strategic exercise of police discretion is a legitimate practice of police services across the country and in almost every area of law enforcement."

"Police discretion allows police services to balance the often competing demands placed upon them and to decide, in appropriate circumstances, that it is wiser to delay the enforcement of a particular law or the laying of charges against specific persons in the larger interest of public safety or public order. For example, no reasonable person would suggest that the police should immediately execute an arrest warrant against a dangerous criminal if doing so would mean putting innocent bystanders at risk. Everyone would agree that the better approach would be for police to use their discretion to ensure that the arrest can be made safely. Police discretion at Aboriginal occupations and protests does not mean that law-breakers are never charged. It simply means that law-breakers should be charged when it is neither dangerous nor needlessly provocative to do so."

I think we would all agree that if a bank robber was holding a hostage in a bank the police shouldn't just rush in to make an arrest. However, the OPP goal isn't to make arrests when it is safe but to ensure that arrests are not done.

We are now five years after the Stirling bridge was burnt down, Natives pulled guns on the fire department when they attempted to put out the fire, numerous tire fires were set, Argyle St. was blocked for six weeks, railway lines were blocked for two months, there was a kidnapping of two OPP officers and two residents and many more crimes where the OPP still have refused to lay any charges. The OPP isn't waiting for when it is safe to make arrests they are simply refusing to enforce the law.

In Canada, there is no time limit on criminal prosecution so there will be many opportunities over the next few years to remind individual OPP officers that they too are required to obey the law.