Daniel Nolan
The Hamilton Spectator
CALEDONIA (Dec 31, 2009)
Dave Brown and his family aren't wasting any time vacating their one-time dream house.
A day after reaching an out-of-court settlement with the province over a lawsuit claiming they were abandoned to lawlessness during a native occupation of a neighbouring housing site, they were talking with a realtor.
"We've already got another house," Brown, 42, said last night on the front step of his Argyle Street South home, which is right beside Douglas Creek Estates that is now owned by the province, but remains in native hands.
In the background, his wife, Dana Chatwell, 46, was signing papers for their new Caledonia home. Brown couldn't say how quickly the family, including their teenage son Dax, 18, would leave the home they once considered a dream house, but which they told court became a nightmare.
"We're working on that right now," he said.
The family holds the Ontario government and Ontario Provincial Police responsible for ruining their health and financial security, claiming the OPP effectively abandoned them to the chaos and lawlessness that surrounded the native occupation of Douglas Creek Estates. They were seeking $7 million in general, punitive and aggravated damages.
Members of Six Nations occupied the site Feb. 28, 2006, because they claimed the development was being built on unsurrendered land. Ottawa says, however, the land was surrendered in the 1840s.
The dispute eventually grew to encompass an abortive OPP raid, highway and rail line barricades, fisticuffs between natives and non-natives, assaults, court fights, the intervention of numerous high-profile former politicians (David Peterson, Jane Stewart, Barbara McDougall) and boisterous rallies. And it all basically unfolded out front of or not too far from the Browns' house.
The out-of-court settlement was finalized Tuesday afternoon and part of its condition is that the financial settlement be confidential. It was also struck without any admission of liability by the government and the OPP.
Brown said he felt "great" a settlement was reached and his family can move on.
Court heard of one night where Brown sat at his kitchen table with a shotgun because he feared for his family's safety. He dosed off and shot a hole in the ceiling. In another episode, Brown was arrested by the OPP after he crossed a native barricade coming home from a hockey game in Toronto.
Court also heard about their home being ransacked in December 2006, and police initially suspecting the couple. The OPP, which now say they are no longer suspects, installed a hidden surveillance camera in the family's home and pointed it at their kitchen table.
And, in another episode, Chatwell told of the time on Labour Day weekend in 2008 when a protester began swinging a two-by-four at her, and she saw two OPP cruisers turn and drive off.
"I feel relieved," Brown said, admitting the couple had a small celebration with some champagne. "It's been a long four years. I'm tired of being bitter. I've had enough bitterness to last three lifetimes. We still have some friends on the (Six Nations) reserve. Dax's best friend lives on Six Nations."
As to the future of his old home?
"It belongs to the province now, or it's going to," Brown said.
Superior Court Justice Thomas Bielby heard four weeks of dramatic, often emotional testimony from Brown and his wife. The couple testified about the overwhelming stress on their marriage caused by almost daily confrontations with native protesters. They said they have lived in fear nearly four years, unable to sell their home and unable to live in the house with anything resembling a normal life.
The government was expected to start calling witnesses in the trial in about a month. David Feliciant, lawyer for the province, said the situation in Caledonia was complex and, at times, volatile. He said it was difficult for the defendants to predict what would happen next or how native protesters might react to any action by the police.
"It will be apparent throughout the trial that the OPP and province of Ontario attempted to manage this situation through negotiation, with every effort made to preserve the safety of the public, which included the safety of the protesters, the residents of Caledonia and the police officers involved," Feliciant told court when the trial commenced in Hamilton on Nov. 9.
He said the strategy adopted by the government and OPP -- which was essentially that endorsed by Justice Sidney Linden, commissioner of the Ipperwash Inquiry -- "was successful to the extent that no member of the public or protester has been seriously hurt as a consequence of the occupation."
Lawyer Michael Bordin, who represented the Browns, and Rosemary Parker, a spokesperson for the Ministry of the Attorney General, said settlement discussions had been ongoing during the trial, though Bordin said talks over the last couple of weeks lead to the resolution.
Parker said the province is taking steps to transfer the Browns' property to the Crown as part of the settlement.
It will be handled by the Ministry of Energy and Infrastructure.
Ministry spokeswoman Sylvia Kovesfalvi said last night the government will "then consider next steps (sic)" after it has taken possession of the property.
The province bought Douglas Creek Estates for about $16 million from its Caledonia-based developers.
Asked if the government felt badly exposed during the trial -- with testimony OPP officers turned away from some incidents involving native protesters -- Parker said: "As the statement indicated, this agreement was reached without any admission of liability from any of the parties."
She wasn't worried this has set a precedent for similar lawsuits against the province and OPP.
Residents along the Sixth Line, which borders the southern border of Douglas Creek Estates, have complained they've lost OPP protection because of the land claims dispute.
"Each action is approached on an individual basis," Parker said. "At this point in time, no decision has been made with regard to the potential for settlement in other areas."
The lawsuit was the talk of Caledonia when it was unfolding in a Hamilton court. Some said it reaffirmed their belief the OPP practised two-tier policing in Caledonia, treating natives differently than non-natives, and created a new round of anger.
Cynthia Trimble, 48, who owns a car dealership in town, wasn't sure authorities will learn anything from the lawsuit and the Browns' tale, but was happy they are finally getting something out of it.
"I hope they can move on and get a bit of joy back," she said. "It took away four years of their lives."
Bill Donovan, 28, couldn't, however, fault the police with the way they behaved.
"I think their hands were kind of tied," he said.
"They didn't want to start a war or anything. I think, if they had intervened, there would have been more trouble than there was. It was kind of a sticky situation."
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-- With files from Barbara Brown, The Hamilton Spectator
What was said during the civil trial
Dana Chatwell:
* "Every day I wake up and I still fear for my life."
* "I've had enough of everybody. I'm tired of fighting the government. I'm tired of fighting with the police. I'm tired of fighting the natives. I'm tired of fighting Caledonia. I'm tired of fighting with Caledonia people who say just keep quiet ... I'm not going to keep quiet."
David Brown:
* "They (the native protesters) come and go, do whatever they want, whenever they feel like it, without any disciplinary action or arrest ... I swear to this day, I'm so exhausted I can't even see straight."
* "I still live in a situation, sir, where I believe the natives are in charge and not the OPP," to government lawyer David Feliciant.
* "I've lost my motivation, my mojo I guess you'd call it. I have no pride. I have no dignity. ... It seems like I've been waiting and waiting, trying to get out of this ridiculous nightmare."
Government lawyer David Feliciant
* "Why wouldn't you put your camera away, clearly you were agitating them?" to David Brown, referring to Brown videotaping protesters shining lights at his house.
* "It will be apparent throughout the trial that the OPP and province of Ontario attempted to manage this situation through negotiation, with every effort made to preserve the safety of the public, which included the safety of the protesters, the residents of Caledonia and the police officers involved."
John Evans, lawyer for the plaintiffs
* "It is unequivocally true that for over a month the plaintiffs had no protection by the police. They lived a terrified existence between the two sets of barricades on Argyle Street."