Charter challenge could be precedent-setting

By Bill Jackson – The Regional

November 19, 2008

Well-known local activist Gary McHale is challenging the policies of the Ontario Provincial Police under the Charter of Rights and Freedoms and says that a judge's decision could be precedent setting and have sweeping applications beyond Caledonia.

In a 32-page Amended Application of Charter Challenge dated Nov. 10, 2008, McHale argues that police operations based on policy outlined in the 'Framework for Police Preparedness for Aboriginal Critical Incidents' forces officers to operate under a two-tiered system of law enforcement by demanding that each officer treat "natives" differently than "non-natives".

Five days have been set aside by the Ontario Court of Justice to hear the case beginning this Thursday in Hamilton. Several senior OPP officers as well as Commissioner Julian Fantino have been subpoenaed to appear in court.

McHale, founder of the group Canadian Advocates for Charter Equality (CANACE) is asking that a judge declare the policing framework a basic violation of the Charter of Rights and Freedoms.

"If he orders that, that means the entire policies which the OPP have been operating under are now illegal," McHale said.

McHale, a Binbrook resident, is currently facing a charge of "mischief not committed" in relation to a Dec. 1,2 007 smoke shack protest on Argyle Street South in Caledonia and claims that he has been targeted by abuses of power that can be proven in email correspondence between Fantino and subordinates.

McHale is asking that charges against him be dropped and for a judge to forbid the OPP from laying any future charge on him without the consent of the Crown office.

That the "Commissioner ordered his officers to disregard the Crown and to disregard 'legal nuances' if for no other reason than to 'publicly expose' me is an attack on the very heart of fundamental justice," McHale argues.

McHale has had travel restrictions imposed on him and pointed out that as a result of a Human Rights complaint, the Ministry of the Attorney General has admitted to arresting Canadian flag-raisers in Caledonia because of "extreme elements that opposed their views".

It's important for people to realize that police never thought Canadian flag raisers were breaking any laws, McHale pointed out in an interview. These flag raisers were arrested to prevent breach of the peace but no criminal charges were laid, he said.

"Such actions by the OPP to arrest one group of people solely because a group of another Race is willing to use violence against them is a violation of people's Liberty," he argues in his application. "Such tactics in a multicultural democratic society are a violation of fundamental justice."

McHale's application outlines conflicts involving Six Nations protesters dating back to 2006 and cites many instances when politicians and lawyers spoke out about two categories of law and justice.

"The phrase Two Tier Justice was first used by OPP Association President Karl Walsh…"

In summary, McHale concludes that the OPP "has had ample evidence that their Framework was violating the 'Rule of Law' and other fundamental principles of justice in Canada. As such the OPP has had almost 3 years to adjust this policy to ensure that such violations did not occur. Instead the OPP has used full resources of their department and that of the Crown to enforce upon non-Natives, in general, and myself directly a two-tier justice system that discriminates solely based on the race of the person involved…

"The OPP has not accidentally violated fundamental principles of justice but has done so willfully to limit the free expression of anyone who is willing to hold the OPP publicly accountable."