Ontario Superior Court: OPP refusal to aid Cayuga land owner an ‘abuse of power & police discretion’

1536412 Ontario Ltd. v. HDI re: Cayuga occupation, May-June 2008:

Ontario Superior Court, June 10/08: Injunction Endorsement

Of particular interest in this remarkable order are paras 28-29 in which Justice Ramsay chastises both the government and the OPP for failing to protect the rights of the property owner:

[28] The remaining defendants’ resort to self-help, taken with the authorities’ refusal to defend the plaintiff’s property rights, has put the plaintiff in a most unfair position. The same government that advises the plaintiff not to pay extra-governmental development fees refuses to enforce its property rights and threatens to arrest its agents if they try to enforce these rights on their own.

[29] I would be the last person to interfere with the proper exercise of discretion by the authorities. I do think that it might be helpful to clear up some misapprehensions that they appear to have.

1. The police have the right to remove unwanted persons from private property at the request of the owners with or without an injunction.

2. The police have the right to use their discretion in the enforcement of the law and private property rights. A blanket refusal to assist a property owner or a class of peroperty owners, however, would be an abuse of that right.

3. The police have no right to prevent the plaintiffs from acting within their rights under s.41 of the Criminal Code. Their warning to the plaintiff that they would arrest anyone who is involved in a physical confrontation, regardless of the circumstances, is an abuse of the power conferred on them by s.31 of the Criminal Code.

[VoC NOTE: s.41 of the ‘Defence of Property’ portion of the Criminal Code gives property owners the right to remove tresspassers w/reasonable force. S.42 gives owners the right to enter their property.]

Ontario Superior Court, May 22/08: Order (OPP to assist Sheriff in enforcement)
Ontario Superior Court, May 21/08: Injunction Order
Ontario Superior Court: Plaintiff’s Factum

Background

On May 12/08, after attending a CANACE presentation featuring our latest report ‘Legalized MYTHS of Illegal Occupations‘ a developer signed a document authorizing CANACE founders to gather evidence for the purposes of laying criminal charges against native protesters who had blocked access to their Cayuga townhouse development.

The property owners were having serious financial issues due to the delays and were frustrated because the OPP refused to remove the occupiers. While on scene, we recorded OPP site commander, Sgt. Michaud (right) explaining the OPP position that land title deeds are NOT sufficient proof of ownership for law enforcement purposes during land claim disputes, and that the Crown was giving them direction not to enforce the law. The conversation – and the subsequent refusal of the police to act on the owner’s request to remove protesters – was recorded on video available in this report:

CANACE news, July 13/08: OPP tell CANACE: Land Title deeds do not prove ownership

CANACE Executive Director Gary McHale used the private prosecution provisions of the Criminal Code to convince a JP to certify 9 charges against two of the protesters (including Ruby Montour, shown in top photo) for Mischief, Intimidation and Extortion. The Crown dropped the Intimidation and Extortion charges. McHale is currently seeking an order via Judicial Review in the Ontario Superior Court to overturn that decision .

The Rule of Law triumphed over the OPP’s abuse of power…

Jeff Parkinson, Gary McHale and VoC took a tour of the property with one of the builders. Two OPP officers ran after us to ask why I was taking pictures. Apparently the native protesters were upset because the OPP didn't tell them we would be taking their pictures. I replied, "I told you before what we were doing - we're gathering evidence to lay criminal charges." After a short discussion during which I suggested that they harass the people committing the crimes instead of us, they walked back, presumably to get more instructions from the protesters.

Not only did they fight in the courts, they were willing to accept help from CANACE in holding the protesters criminally accountable. The combination worked – there are now families living in the Cayuga homes built by gutsy builders who refused to give in to the illegal OPP-enablement of extortion, intimidation, and mischief.

…but Fantino still supports the illegal actions of his officers.

Despite the strongly worded rebuke of the OPP by a Superior Court judge, Julian Fantino was more interested in attacking Gary McHale instead of admitting the obvious when he testified in a Hamilton courtroom on April 22/09 that, after watching the video, he fully supported Sgt. Michaud’s position of not protecting the property owners from the native occupiers. It was during this same court session that Fantino actually made his ridiculous statement that, “But for you [McHale] Caledonia would be a peaceful place.”

Not only did Fantino not have the good sense to be embarassed or ashamed over his force’s illegal conduct, he actually had the temerity of accusing Gary McHale of ‘agitating’ because he dared to ask Sgt. Michaud to explain his reasons for refusing to enforce the law.