Adrian Humphreys, National Post
November 19, 2009
HAMILTON -- Threats, kidnapping, intimidation, harassment, vandalism, mischief and theft by native protesters in Caledonia against a family whose house is almost surrounded by the contested site are not valid expressions of a land claims dispute said Julian Fantino, commissioner of the Ontario Provincial Police.
Even so, police typically did not pursue criminal charges against the native protesters during the ongoing occupation of land that was to be developed into a residential subdivision, court heard.
Evidence from the commissioner -- the most senior official within the force ostensibly policing the contested 70-acre site and the town of Caledonia within which it sits -- was entered in court on Thursday in a $7-million civil lawsuit.
David Brown, 42, along with his wife, Dana Chatwell, 45, and their son, Dax Chatwell, 18, are suing the OPP and the province for failing to protect them or enforce the law against native protesters around their home.
Court previously heard of dramatic and dangerous incidents of harassment by protesters against the Brown-Chatwell family throughout the occupation, particularly during a month-long siege in 2006 when their home, alone, was trapped inside native barricades that isolated them from the community and police.
On Friday, sworn testimony from Mr. Fantino, taken during pre-trial hearings, was entered into the official court record.
During his testimony he was asked about a litany of complaints made by the family, including threats from natives of bodily harm and threats to burn down or occupy their home.
"If the threats included threats: ‘Your property is next; we're taking over your property' -- not by a somber Confederacy chief but by young people yelling and shouting," asked John Evans, lawyer for the Brown-Chatwell family, "do you agree that that is not an act of asserting a valid native land claim?"
"I do agree," Mr. Fantino answered.
"And it's not an act of peaceful protest?" Mr. Evans continued.
"That's correct," he answered.
"And it's an act of unlawful intimidation?"
"Could be perceived as such and intended as such, yes," Mr. Fantino said.
"And likely to cause fear?"
"Yes."
And when asked if such behaviour by the native protesters was also criminal, Mr. Fantino answered: "In normal circumstances, yes."
Crown lawyer David Feliciant earlier said the allegations in the case "must be understood against the backdrop of the unique character of aboriginal occupations and protests," as well as the recommendations of the Ipperwash Inquiry into the death of a native protester shot by the OPP during a 1995 protest.
Mr. Fantino said, however, that government policy on aboriginal affairs was not the overriding factor in policing the Caledonia dispute.
When asked why OPP officers did not go onto the occupied land to arrest natives believed to be involved in crime he said: "The escalation of conflict and violence and so forth and safety of the officers as well.
"The fallback position always is the lawful use of force as prescribed in the Criminal Code, and that is especially relevant if there is an immediate or an apprehension or a belief that violence would erupt, that people's safety would be put at risk, including police officers of course.
"So that would be the overriding criteria, regardless of what other things might be spoken to or recommended or otherwise flow from even the likes of the Ipperwash inquiry," Mr. Fantino said.
When asked about negotiations between the government and the natives, Mr. Fantino distanced his force from the politics.
"It's got nothing to do with us," he said.
"Nothing to do with the police?" asked Mr. Evans.
"No. Our sole purpose is to preserve the peace to the best of our abilities, and not in any way, shape or form negotiate for land or on behalf of parties or deal with any of that."
Court heard that early in 2007, Mr. Fantino was driven around the perimeter of the site by First Nations members. During his testimony, Mr. Fantino was asked what he learned from the visit.
"It's an expanse of property," he said. "An extremely difficult situation for us to deal with if the situation escalated."
And he agreed that the situation of the Browns was of particular concern given that their home was "almost within."
Mr. Brown was expected to be on the witness stand on Thursday for continued cross-examination. On Wednesday, however, he was twice excused from the stand so he could make a dash for the washroom to vomit.
On Thursday court learned that Mr. Brown's condition had worsened during the night and was seeking medical treatment.
Amidst concerns he might have H1N1 flu -- Ontario Superior Court Justice Thomas Bielby, perhaps only half jokingly, said he might have to issue everyone masks to prevent participants from "dropping like flies" -- court later learned that Mr. Brown had viral gastritis.
The "read-in" evidence of Mr. Fantino was done in the interim before court was adjourned to Monday.