by Gary McHale - The Regional
June 15, 2011
While the Crown appeared so noble last week by withdrawing the charge against me and claiming how the police and Crown have distinctive roles, they didn't tell the court (thereby the public) that it was the Crown that gave their approval for the OPP to arrest me.
In my case before the Ontario Court of Appeals they stated, "Pre-charge screening, or pre-charge approval, is the exception and not the rule in this province." However, it appears in Haldimand the Crown's office is directing who the OPP can and cannot charge.
One OPP officer was surprised to hear me tell him that it is illegal for the Crown to order/control who the OPP charge. He demanded that I prove this to him. I was shocked that this officer was unaware that the Supreme Court has ruled on this many times and has made it clear that individual officer's discretion to lay a charge cannot be controlled by the Crown, his superiors and/or police or government policies.
The Beaudry case of 2007, where a police officer was convicted for obstructing justice for failing to take a breth sample of a drunk driver, proves the point. The Supreme Court rejected the idea that police policies supersede officer's discretion. The court stated, "It should be pointed out that these directives [police policies] do not have the force of law. They therefore cannot alter the scope of a discretion that is founded in the common law or a statute... My conclusion is that the officers’ responsibilities were not circumscribed by the RCMP policy..."
What this means is that the Ipperwash Inquiry, McGuinty's views on Caledonia, OPP policy contained within their Framework document and directives issued from above have NO FORCE IN LAW and cannot control/limit individual officer's discretion. Any officer believing that his defence is that he is just following orders will quickly find out it isn't a defence.
Furthermore the courts are clear about the Crown not interfering with police discretion. The court stated, "In my opinion, the proper functioning of the criminal justice system requires that all actors involved be able to exercise their judgment in performing their respective duties, even though one person’s discretion may overlap with that of another person. The police have a particular role to play in the criminal justice system, one that was initially founded in the common law, and it is important that they remain independent of the executive branch... [the] hierarchical vision according to which a police officer’s discretion is limited by the discretion of the Crown prosecutor should therefore be rejected. In discharging their respective duties, both the police officer and the prosecutor have a discretion that must be exercised independently of any outside influence."
Back in 2008 we videotaped Officer Dan Machaud explaining to us how he could not arrest the occupiers of the development in Cayuga because the Crown had told the OPP not to. Several times in the taped conversation the officer stated what the Crown has told the OPP and that he had to wait until the Crown gave their permission before he could make an arrest.
It appears OPP officers are unaware or simply don't want to know that they have the independent authority to arrest anyone they believe is committing a crime regardless what the superiors and/or Crown say.
Of particular interest regarding these facts is how the Crown approved of my arrest while telling the OPP not to arrest Native people who assaulted people at the same rally.
On Feb. 27, 2011 I was swarmed by the radicals bussed in from York and Guelph Universities. I was on private property and they refused to leave. Under the authority of Parliament (i.e. Criminal Code) I touched one person to direct him off the property - 3 weeks later I was arrested.
On the same day a Native protester had to be restrained by an OPP Officer who give Crawford a bear hug in order to stop an attack upon Mark Vandermaas. No surprise to anyone the officer let Native go and the OPP has refused to lay any charge.
A month later at the second event the same Native then assaulted Jeff Parkinson who was videotaping Merlyn Kinrade being confronted by Native women as our Monument is being destroyed. Both Parkinson and Kinrade go to the OPP station and file a complaint - that was over two months ago.
This past week the OPP repeatedly told us how much the OPP has changed and how we can trust them to lay charges if people just cooperate with him. The very next day we find out the OPP are refusing to lay any charge again this particular Native because the Crown in Cayuga has ordered them not to.
A quick review of our videos shows that this same Native has assaulted other people at various events in Haldimand county including being part of the mob that attacked me on Dec. 1, 2007 resulting in Parkinson and myself being sent to the hospital - again he was never charged.
There is little doubt that this Native is aware that the OPP and Crown will not prosecute him for his involvement in crimes in Haldimand. Such knowledge only emboldens people to be willing to repeat their criminal behaviour and to escalate the seriousness of their actions.
We all know why the Crown and the OPP refuse to arrest Native protesters. The racist policies that have institutionalized themselves within the Crown and the OPP are a serious attack upon the fundamentals of justice.
In March a few Jewish people in their eighties/nineties, who had read Christie Blatchford's book, invited us to a lunch to talk about Caledonia. After a while one gentlemen paused and stated, "it is just like the Brown Shirts and the Night of Broken Glass."
The Night of Broken Glass (1938) is when Jewish businesses and homes were attacked in Germany while the police stood by and watched. The roots of Nazi Germany started with the politicians' racist views which then created race based policing policies which were then justified by Crown lawyers and judges.
What are we to think about Haldimand County's Justice System?