Judge Whitten: Just below Culpable Homicide

by Gary McHale - The Regional

September 7, 2011

Over the past four years I have heard many government officials, senior OPP officers and even judges and crown lawyers say, "at least no one got hurt" when referring to Caledonia. In court I have corrected judges and government lawyers remind them of Sam Gaultieri.

Last Friday's conviction of Richard Smoke of Break & Enter and Aggravated Assault, which Judge Whitten stated was "just below culpable homicide", is a case that our society should study for many years.

1) Gone is the public B.S. from Native Protesters, OPP and government officials that the ownership of property in Caledonia is in question. There was no argument presented in court about native land claims, colour of right or any other foolishness about property ownership - clearly Mr. Smoke knew the Gualtieris owned the property.

2) This case demonstrates the dangers of two tier justice. Sam Gualtieri was almost killed after the OPP refused, for a full month, to remove Natives from private property. The OPP's unwillingness to uphold the law, refusal to send a powerful message to occupiers that lawlessness is unacceptable, refusal to honour court rulings and their refusal to care about the safety of non-Native people directly allowed this attack to occur.

3) The OPP always did have the resources to restore law and order in Caledonia. Within days after this attack the OPP moved into the Stirling development with large numbers of officers. The result of this absolute use of force was that not one officer was hospitalized, no one was killed, several arrests were made, the illegal occupation ended, the development was finished, the law was restored and that has not been a singleĀ  problem with any occupier at Stirling since Sept. 2007. The equal application of the law, regardless of race, creates peace not destroys it.

4) The OPP and Crown, faced with the near death of a person and the media attention this brings, were forced to finally prosecute a case with the absolute intention of getting a conviction. I have been in court many times watching the OPP and Crown's so-called prosecution of Native Protesters and you wonder which side they are on. In many cases they are unclear about the evidence, virtually no officers are present to testify, and much of the available evidence isn't even presented in court.

I must admit that in this case the OPP and Crown worked overtime to ensure a conviction. Hundreds of exhibits were entered as evidence including photos, videos and even DNA evidence linking Mr. Smoke to the crime scene. What this case showed is that the OPPĀ  and Crown do have the ability to built a strong case if they want to.

5) This case should forever end the foolish debate about whether the OPP preformed their duties in such a way as to ensure public safety. It isn't because the OPP kept the peace that no one was murdered in Caledonia. As Judge Whitten states, "as Mr. Gaultieri was laying defenceless the accused continued to whale on him with brute force until he was stopped by Davies [Sam's employee]".

While Sam Gaultieri was being attacked the OPP were standing at the edge of the sub-division doing what they always did which was nothing excepting ensure no one, and I mean no one, interfere with the alleged rights of Native Protesters to illegal occupy private property. Day after day the OPP allowed Native Protesters to cross the police line with full knowledge that these protesters were committing crimes - i.e. mischief for being part of an illegal occupation and break and enter whenever they did enter someone's home.

The OPP were well aware that the occupiers were demanding money from the builders which makes it a crime of extortion. The police aided in the criminal act by providing security not for the public but for the occupiers. Justice Ramsay's ruling regarding the occupation in Cayuga demonstrates how clearly the OPP aided in the criminal acts of extortion when he stated the following:

"The same government that advises the plaintiff not to pay extra-governmental development fees refuses to enforce its property rights and threatens to arrest its agents if they try to enforce these rights on their own... The police have the right to use their discretion in the enforcement of the law and private property rights. A blanket refusal to assist a property owner or a class of

property owners, however, would be an abuse of that right... The police have no right to prevent the plaintiffs from acting within their rights under s.41 of the Criminal Code. Their warning to the plaintiff that they would arrest anyone who is involved in a physical confrontation, regardless of the circumstances, is an abuse of the power conferred on them by s.31 of the Criminal Code."

In truth, the OPP created a police line not to protect the public but to ensure that Natives could exercise their so-called rights to do illegal occupations and to violate several sections of the criminal code. The police line never stopped Natives from coming to/from a crime scene nor stopped Natives from committing additional crimes. The OPP repeatedly stood by and watched serious crimes being committed. However, if any non-native dared to stand on the side of the road with a Canadian Flag or dared to stand two feet on the road drinking coffee when the road was already blocked they would be handcuffed and taken to the police station.

6) Finally this case demonstrates the level to which Native Protesters were willing to lie to the public. For days after the attack Native spokespeople repeatedly told the media that Sam Gaultieri and others attacked the native youths and these youths were just defending themselves. They told the media that the subdivision was to be empty of builders so Natives had a duty to protect the houses from vandals. Therefore, the presence of someone in the house required the Natives to use force to remove the vandals - i.e. Sam Gaultieri and his workers.

Of course, not one main stream media attempted to question the outright stupidity of such statements.