Published on Saturday, Nov. 14, 2009 12:00AM EST Last updated on Saturday, Nov. 14, 2009 3:19AM EST Globe and Mail
There it was, in lawyer David Feliciant's opening statement yesterday, a glimpse of the dark heart of the government case.
Mr. Feliciant was attempting to put lipstick on the pig of the defence case in the civil trial that started here this week before Ontario Superior Court Justice Thomas Bielby.
The government of Ontario and the Ontario Provincial Police are being sued by Caledonia, Ont., residents Dave Brown and Dana Chatwell for their alleged failure to protect them during the notorious native occupation of the former Douglas Creek Estates, which on Feb. 28, 2006, was seized and occupied by protesters from the nearby Six Nations reserve.
The couple's home is bordered by the disputed land on two sides.
In July of that year, Ontario bought out the developer for about $12-million and effectively turned the land over to the native occupiers, though the government is still the lawful owner.
Mr. Feliciant was discussing Mr. Brown's arrest that May.
On the night in question, Mr. Feliciant alleged, Mr. Brown, who was returning home from a Blue Jays game in Toronto, appeared to be intoxicated and, when he was denied entry to his home by the native protesters who were then running things, he got belligerent.
"He squealed his tires," Mr. Feliciant said - good God, the horror - and drove through the barricade, and when he got to his house, instead of going directly inside, Mr. Brown dared to confront the protesters who had followed him there.
He was arrested "to prevent further breach of the peace," Mr. Feliciant said.
Mr. Brown spent the night in jail and was released without charges in the morning.
Not mentioned was the fact that the natives were there illegally, were illegally blocking a public road, illegally demanding the couple present native-issued "passports," illegally imposing a curfew, illegally turning Mr. Brown away from his own home.
Not mentioned was the fact that by this time, Mr. Brown and his family had been living under this state-condoned oppression for three months, had been driven nearly mad by the threatening conduct of the natives, and had been left enraged and bewildered that the OPP and the government regularly turned a blind eye to it all.
Not mentioned was the fact that by then, the OPP had made but a single effort to arrest natives - this in a raid on April 20 which saw protesters repel the police and drive them off the land.
And there you have it: One single incident of tire-squealing by a non-native Caledonian equalled a night in the clink; conduct by natives that was recognizably criminal was somehow counted as part of their land claim.
It was clear from Mr. Feliciant's opening that the government will play hardball at this trial.
While he acknowledged that the couple's "peaceful enjoyment of their home was affected from time to time," Mr. Feliciant said they sometimes provoked the natives and are to blame for some of what happened to them, that the whole thing has to be viewed through the lens of aboriginal land claims, that the couple did receive policing, albeit within the context of the so-called "aboriginal framework" that was the OPP bible, and that if bad things happened, well, it wasn't the fault of the government or the OPP.
And natives were arrested, Mr. Feliciant said - 75 people charged with 160 offences in relation to the occupation, though notably, he did not say when these arrests were made.
Yet one of the key police witnesses, OPP Inspector Brian Haggith, who was at the time the commander of the nearby OPP detachment at Cayuga, appears to disagree with Mr. Feliciant's sunny assessment.
One of Mr. Brown's lawyers, Michael Bordin, yesterday engaged in a process called "read-ins," where he read aloud from testimony taken earlier at a pretrial process called discovery.
Insp. Haggith was familiar with the force's aboriginal
framework, the document that emphasizes mediation with native protesters. "I think this was a good document," he testified. "I believe in that document, and I believe in the principles behind it.
"But what happened was that as time progressed, I could see that the - I could see as a police officer that the natives on that site were becoming more bold and that laws were being broken, and a lot of discretion was being used by us to deal with it.
"And I understood it at first, but as I said, as [the occupation] progressed, it became bolder and bolder and more things were occurring. So at one point, I started to suggest instead of investigating and charging later, which is not conventional policing, I suggested maybe we should start arresting some people while the offence is being committed."
He raised that novel concept with his superiors; he was "disappointed" by their response.
Insp. Haggith also believed that the OPP's failure to make arrests in a timely way, as they would in the normal course of duty, was empowering the protesters.
By June, he knew protesters had burned an old wooden bridge, and that when the Haldimand firefighters arrived to fight the blaze, threatened them with death. Fire Chief Dan Robinson refused to allow his men to return to the fire because, as he told Insp. Haggith, "he didn't believe we would protect him." He knew protesters had thrown a vehicle off another bridge and damaged a Hydro transformer to the tune of $1-million plus.
As he said in testimony, the normal OPP reaction to such wanton lawlessness would be quick arrests; at Caledonia, that wasn't possible. "That area was off limits to the police," he said.
On June 9, 2006, an elderly couple had stopped their car to have a look into the now-famous occupied lands. They were followed by protesters into a nearby Canadian Tire parking lot, surrounded and bullied. The man suffered a heart attack. Two local cameramen arrived and began filming the scene; OPP officers who were watching it all, but not stopping it, advised them not to get too close. When the protesters spotted the TV crew, the cameraman was assaulted and videotape removed.
Insp. Haggith arrived to see the cameraman with his bloodied face and heard from spectators what had happened.
The turning point came when he overheard a woman talking on the phone to a police dispatcher, saying she wouldn't give her name because she was afraid. "The police won't do anything," the woman said, "Who is going to help us?"
It was, he said, "a perception I could share."
The trial resumes Monday.