by Gary McHale - The Regional - Opinion
January 11, 2012
Mayor Ken Hewitt is following in the footsteps of the OPP where he believe court orders are not to be obeyed by people like himself. Hewitt was ordered by a Justice of the Peace to appear in court last Friday but he refused to appear. Instead of obeying the court order Hewitt chose to send the County Lawyer, at taxpayer's expense, to speak in court - such a move isn't legal in Canada. The criminal code states that any person required by law to be in attendance in order to give evidence and fails to do so is guilty of 'contempt of court'.
While Hewitt claims to believe in the rule of law and equality before the law, it now appears he believes he, as Mayor, is above the law. Failing to obey a court order, like a subpoena, is a grounds for a person to be arrested which does occurs every day across Ontario. The County Lawyer never told the court why Hewitt refused to appear.
I told the court, "Haldimand County was not subpoenaed but Ken Hewitt had been subpoenaed, and it is clear Mr. Hewitt decided to disrespect this court. The subpoena is not issued by Gary McHale but by a Justice of the Peace whereby Ken Hewitt decided to defy this court by not appearing. If I or anyone else did this there would be an Bench Warrant issued for our arrest. The fact that Ken Hewitt is in a position of influence and can send a lawyer here doesn't change the fact that he disobeyed the court."
In Dec. of 2006 I subpoenaed Insp. Dave McLean who refused to appear in court. The Crown stood up and spoke on behalf of Insp. McLean claiming he had previous vacation plans and was unavailable for court. The Justice of the Peace simply accepted the story from the Crown and moved on as if everything was okay.
I appealed this and Judge Marshall ruled that the Justice of the Peace was wrong and that Insp. McLean was legally bound to appear in court himself. While the Crown attempted to explain why Mclean failed to obey the court order ,Marshall repeatedly rebuked the Crown for covering for McLean. The Crown stated that the subpoena was for Dec. 24, 2007 and not surprisingly McLean was out of the country.
Marshall stated, "I frankly am offended by that. I don't think that argument holds water at all. If anyone's subpoenaed they should come to court, fail heaven or earth, they should come to court. You know that as well as I do." The Crown responded by saying, "I hear Your Honour's comments. I will make sure that the OPP is aware of Your Honour's comments."
Our legal system requires that every citizen respect the courts and the orders they issue. In Haldimand we know just how destructive it is when anyone believes they can simply defy the courts and act as if they are above the law.
Since Judge Marshall's rebuke of the Crown and the OPP, I have subpoenaed dozens of OPP officers and every time they were there in court. Ex-commissioner Fantino was forced to appear three times in court - the highest ranking police officer in Ontario was forced to obey the authority of a subpoena, but somehow Ken Hewitt believes that he, as Mayor, is above the courts.
Sometimes when you are subpoenaed there may be reasons why you can not appear - short of a medical emergency you must be in court. In one case, I had subpoenaed 12 OPP officers, who all waited 10 days in the hallway of the court to be called to testify, and a case arose in Ontario where a little girl went missing. The OPP approached me and asked that one of the officers be released in order to start up a task force to find the girl - I consented. Unfortunately the girl was found dead and the parents were charged and convicted of murder.
In another case, one OPP officer phoned me the night before court and told me his wife had been seriously ill and he wanted to be released from the subpoena in order to attend his wife in the hospital. Again, I consented and changed the order in which I would call witnesses so that he could appear on a different date.
The point being that while I fight to restore the rule of law and justice in Haldimand we are all still human beings and must show proper respect towards one another and for the legal system. My battle isn't against individual human beings but against a system of racist policies.
It may surprise people but many of the OPP officers and Crown lawyers have come to show a great deal of respect to me. In some cases they don't. In one case, a Crown lawyer from Toronto spent 30 minutes defaming me in court - something you cannot sue for because court statements are protected. I told the court, "I don't know where to start in responding." The judge interrupted me and stated, "Mr. McHale, you have always been polite and respectful in court so I can tell you I didn't hear anything that was just said." I thanked the judge and moved on to present my case.
Hewitt could have gone to court and had the subpoena lifted or he could have contacted me and provided a reason to have me lift the subpoena. He could have demonstrated a proper respect for the court but instead choose to act as if he is above the law.
Mayor Hewitt has placed me in a difficult position. For 5 years I have been fighting to ensure all people are equal before the law and many Natives claim I will only hold Native people accountable. If a Native person had defied a subpoena I would be in court to ensure he was criminally charged - now what am I to do about Mayor Hewitt's defiance?
What should be noted is that the three OPP officers subpoenaed to be in court last Friday all appeared - even the OPP knows they must obey a subpoena.