Timothy Appleby
Cayuga, Ont. — Globe and Mail Update Published on Wednesday, Feb. 03, 2010 9:35AM EST Last updated on Wednesday, Feb. 03, 2010 7:48PM EST
The citizen activist who laid a criminal charge against Ontario’s top cop vowed to keep fighting for Julian Fantino’s prosecution yesterday after the Crown withdrew the charge, saying it had no prospect of success.
Gary McHale sought to have the Ontario Provincial Police commissioner prosecuted for allegedly trying to influence municipal officials in the dispute over the Caledonia native occupation. It’s a Criminal Code offence that carries a maximum five-year prison term.
“There’s clearly a conflict of interest within the McGuinty government and this has to be exposed,” Mr. McHale said after the brief hearing inside Cayuga’s ornate, 19th-century courthouse, a half-hour’s drive southwest of Hamilton.
“The government directly interfered with this case.”
Special prosecutor Milan Rupic told Justice of the Peace Daniel MacDonald that because the criminal charge is an indictable, or more serious, one, the province was permitted to take it over from Mr. McHale – and had decided to abandon it.
Mr. Fantino was not inside the packed courtroom. From OPP headquarters in Orillia, he issued a statement saying he was “content that this vexatious allegation was dealt with in a just and appropriate manner.”
At the root of the unusual hearing was the sometimes volatile four-year native occupation of the former Douglas Creek Estates in nearby Caledonia.
Mr. McHale, 47, has repeatedly accused the OPP of being too lenient with the Six Nations occupiers, and has helped organize rallies citing a “two-tiered” standard of policing – one for the natives and one for the mostly white Caledonia residents.
He laid his charge in response to an e-mail Mr. Fantino dispatched in April, 2007, to Mayor Marie Trainer and members of Haldimand council urging them to shun the rallies, and warning that if any police officers were injured in clashes he would send the bill to Haldimand County.
The latter statement, and the interpretation that it constituted a threat, was the only possible basis for a criminal charge, Mr. Rupic told the court.
But he concluded that the evidence to support it is not there.
“I appreciate that … some members of the municipal council were angered or upset or felt threatened, so to speak, at receiving the e-mail,” he said.
But their reaction “does not affect the underlying fact that in Canada it is not criminal if you tell someone you might send them a bill for services.”
The setback was the latest twist in a string of legal hurdles navigated by Mr. McHale, the founder of a group called Canadian Advocates for Charter Equality.
Parallel to his efforts to target Mr. Fantino, Mr. McHale faces the extremely unusual criminal charge of “counselling mischief not committed,” for which he is currently on bail.
Disclosure material recently released to Mr. McHale in his defence on that charge, filed in Ontario Superior Court, show that over an eight-day period in December, 2007, Mr. Fantino wrote at least 27 internal OPP e-mails about Mr. McHale’s involvement in the land dispute.
When Mr. McHale launched his private complaint against Mr. Fantino last year, the justice of the peace who first heard it declined to issue a summons or warrant against Mr. Fantino.
But in a ruling released Dec. 31, Mr. Justice David Crane of the Ontario Superior Court upended that decision and ordered the charge to go ahead.
After Wednesday’s hearing, Mr. McHale contended that as a justice of the peace, Mr. MacDonald had no authority to reverse the ruling of a Superior Court judge.
“I don’t see this as a loss, I see it as the justice of the peace overstepped his jurisdiction,” he said.
“It means I have to file another judicial review. There’s no doubt in my mind the Superior Court will overturn what the [justice of the peace] did today.”
Mr. McHale also reiterated his demand that an independent prosecutor be brought in to assess the merits of the charge.
That opinion was echoed yesterday by Tory MPP Ted Chudleigh, opposition justice critic.
“We’ve always had the opinion that this should have had an outside prosecutor,” Mr. Chudleigh said.
“If the government influenced the Crown to drop the charge – that’s a big if – then that’s a huge concern.”