The battle of wills between OPP Commissioner Julian Fantino and Caledonia political activist Gary McHale continues, with no checkmate in sight.
Fantino regained significant ground yesterday, however, when a senior lawyer with the Crown Law Office in Toronto withdrew a criminal charge against him involving the use of threats to influence, or attempt to influence, the elected officials of Haldimand County.
The charge had been brought privately by McHale, founder of Canadian Advocates for Charter Equality, who anticipated the Crown's move and had already filed an application for a judicial review.
The activist had been pressing Ontario Attorney General Chris Bentley to bring in a prosecutor from outside the province, claiming the government was in conflict of interest because it had been determined from the start to block his private charge and keep Fantino from being prosecuted.
"I had no confidence in the Attorney General's office over the last four years -- looking at Caledonia -- that they were independent enough to want to bring in an outside prosecutor," McHale said yesterday outside the courthouse.
"I mean, what could have been the harm? Three weeks ago they could have brought someone in from another province to look at the evidence. He could have stood up and said the same thing and it would have had a different perception to the public."
Haldimand Mayor Marie Trainer's testimony at McHale preliminary hearing (pages 20-21)
Fantino and McHale have been at loggerheads for the past three years and have sometimes appeared obsessed with having each other charged and hauled before the courts.
McHale currently faces an obscure charge of counselling mischief not committed that was laid by the OPP in December 2007. He is seeking to vary the terms of his bail that prohibit him from stepping foot in Caledonia.
The allegation of inciting civil disobedience stems from a public rally that turned violent, with native and non-native protesters facing off over the issue of an illegal native smoke shop on Argyle Street South at Highway 6. Prominent native activist Clyde Powless was also charged that day with mischief and with assaulting McHale.
In an e-mail to a supervising officer regarding the tense standoff that day, Fantino said of McHale: "I feel like doing what L.A. Police Chief Daryl Gates (does) -- go out an arrest the goof myself."
Two years later, McHale had the commissioner charged with a criminal offence over an e-mail Fantino sent to Haldimand County Mayor Marie Trainer and council, in which he blasted the politicians for suggesting that McHale had the right to freedom of speech.
Fantino wrote: "And now, apparently, we have Councillor (Craig) Grice commending someone that he knows is a lightning rod for confrontation and potential violence."
The commissioner warned that if any OPP officer was injured as a result of McHale's forays into Caledonia, he would hold Grice, council and McHale accountable. Fantino said he would support any injured officer who filed a lawsuit, pass additional policing costs on to council and "strongly recommend to (his) Minister that the OPP contract with Haldimand County not be renewed once the current contract expires."
McHale has been a vocal critic of the OPP, claiming they routinely looked the other way when native protesters committed offences, even violent assaults, but were quick to charge non-native protesters.
"What the government has been doing in Caledonia is completely illegal, completely against democracy, against the rule of law, and against the Charter of Rights," McHale said outside court.
"Everyone has the right to equal protection under the law. Can anyone honestly believe that the people in Caledonia have actually experienced equal protection under the law?"
McHale has cited the lack of law enforcement during the early days of the native occupation of the Douglas Creek Estates in Caledonia, when native protesters from the Six Nations reserve and members of the Mohawk Warriors seized the housing subdivision then under construction, barricaded roads, burned a rail bridge, tore down hydro towers and tossed vehicles over the Caledonia bypass.
In the midst of the turmoil, a Hydro One transformer was destroyed. Power was knocked out in the region for two days and damages were pegged at close to $1 million.
"There's not a single court in the land that's going to exempt an entire group of people -- based on their race or skin colour -- and say that they can break the law," McHale said.
As for the charge withdrawn against Fantino, Milan Rupic, chief counsel for the province's justice prosecutions unit, told court there was a low threshold, in terms of the strength of the evidence, for a justice of the peace to lay a charge brought by a private citizen.
Rupic said the test for the Crown in determining if there was a reasonable prospect of obtaining a conviction was "a significantly higher and stricter standard" than the test to issue process on a private charge.
Fantino was not in the courtroom yesterday, but in a press release expressed "satisfaction" with the withdrawal of the charge against him, saying it was the logical outcome to an unsubstantiated allegation.
"I remain proud of the difficult work done by the OPP over the last several years in Caledonia. Our efforts have resulted in a relative calm and minimized potential violence. The results speak for themselves," Fantino said.
CHRONOLOGY
July 7, 2009 -- A private information is sworn by Gary McHale, seeking to have OPP Commissioner Julian Fantino charged with using a threat in the attempt to influence elected officials.
Aug. 11, 2009 -- A in-camera hearing is held before justice of the peace David Brown in Cayuga. Brown refuses to issue McHale's request for a summons for Fantino.
Nov. 5, 2009 -- McHale brings a mandamus motion before Superior Court Justice David Crane, seeking an order from the higher court compelling the JP to lay the charge.
Dec. 31, 2009 -- Crane orders Brown to issue summons for Fantino to appear in court.
Jan. 8, 2010 -- Brown issues a summons for Fantino to appear on Feb. 3, 2010.
Jan. 15, 2010 -- The Crown fast tracks the case before the court on Jan. 15, only to adjourn it to Feb. 3.
Feb. 3, 2010 -- Crown withdraws charge against Fantino.
See the Crown's reasons for withdrawing the charge and Haldimand County Mayor Marie Trainer's testimony at Gary McHale's preliminary hearing.