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CALEDONIA LAWSUITS

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NOTE: These are some of the more important legal actions filed in connection with the Caledonia/Brantford/et al crises. It is not a complete list.

For weekly info about ongoing court cases about racially-based corruption in the justice system and other Caledonia issues see Gary McHale’s weekly column in the Caledonia-based Regional News. Click here and then scroll down until you see a heading on the right called, ‘Court Beat & Regional News.’

1. Caledonia Class Action lawsuit – lawyer & Caledonia resident, John Findlay 

The June 12/06 Statement of Claim is most enlightening as an aid to understanding how the town and its residents were affected by native extremists and their violence in the first few months of the occupation of the Douglas Creek Estates.

All documents and updates related to the Class-Action can be found at www.caledoniaclassaction.com.

2. $12M lawsuit by Caledonia residents, Dave Brown & Dana Chatwell 

Several weeks before the Ontario election in Ocober 2007, VoiceofCanada and CaledoniaWakeUpCall received copies of the Statement of Claim for a $12M lawsuit filed by Caledonia residents Dave Brown and Dana Chatwell with respect to their suffering at the hands of native extremists, the OPP, and Liberal cabinet ministers.

The claim makes many shocking allegations: traumatic harassment by native occupiers of the Douglas Creek estates; false arrest of Brown for trespassing on his own property; deals by cabinet ministers with natives not to prosecute them for crimes, and not to call in the military to protect Caledonians from them; illegal surveillance inside the Brown/Chatwell home; refusal by OPP to respond to 911 calls; failure of OPP not to call 100 RCMP officers on standby at Hamilton Airport for assistance during the failed raid April 20/06; pressure by OPP to allow them to lay phony trespassing charges against non-native protesters using their property; etc. 

It is an eye-opening look at the effects of an illegal occupation on the lives of people who, through no fault of their own, have been forced to endure the consequences of native crime and intimidation without the full protection of the law.

See also:

3. Samuel & Sandra Gualtieri v. R., 2008: $5M suit re attack on Sam Gualtieri by native protesters, Sept 13/07

On Sept 13/08 Sam Gualtieri was viciously attacked by native protesters in a home he was building for his daughter at the Sterling Subdivision in Caledonia and suffered grievous injuries which left him with permanent brain damage. 

References:

4. City of Brantford v. HDI re: Brantford occupations, 2008

On May 23/08, the City of Brantford submitted a document to the Superior Court of Ontario seeking $110M in damages and asking the Court to notify the Attorney general that “the services of the Canadian Forces are required in aid of the civil power because a disturbance of the peace or riot is occurring or is likely to occur;” (p4, item (b)).

The Corporation of the City of Brantford – Plaintiff
- and -
Ruby Montour, Floyd Montour, Clive Garlow, Charlie Green, Mary Green, David Martin, Hazel Hill, Aaron Detlor, The Haudenosaunee Development Institute, Jane Doe, John Doe and persons unknown – Defendants

5.  1536412 Ontario Ltd. v. HDI re: Cayuga occupation, May-June 2008:

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.]  

Background

On May 12/08 members of CANACE were asked by a developer 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 explaining why they refused to enforce the law. The conversation was recorded on video:

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 for Mischief, Intimidation and Extortion. The Crown dropped the Intimidation and Extortion charges. At the time of writing (June 03/09) McHale was seeking an order to overturn that decision in the Ontario Superior Court.

On April 22/09, despite the clear rebuke to the OPP’s illegal actions, Julian Fantino testified in a Hamilton courtroom that, after watching the video, he fully supported Sgt. Michaud’s position of not protecting the property owners from the native occupiers.

6a. Parkinson v. R., 2008 re: Opposition of publication ban during judicial review of private prosecution 

This decision is related to a publication ban sought by the Crown regarding an Order of Mandamus Application hearing on the decision by a Justice of the Peace decision not to issue process for charges against two OPP officers who were videotaped assisting native occupiers to build a barricade to keep the legal owner out of his Hagersville property.

The Application succeeded, and the publication ban was not granted. The officers were, in fact, later charged as a result of Parkinson v. R, 2009 (see below).

6b. Parkinson v. R., 2009 re: Judicial review forcing issuance of process for private prosecution of OPP officers for aiding native protesters during illegal occupation

Background

Parkinson v. R. is a precedent setting decision whereby Jeff Parkinson, aided by Gary McHale (both co-founders of CANACE) used, for the first time ever in Canada, an Order of Mandamus to overturn a JP’s decision not to issue process on a private prosecution. 

Parkinson attempted to lay criminal charges of Mischief against two OPP officers who assisted native protesters to build a barricade on private property to keep the lawful owner out on May 23/07. He, along with Gary McHale, was opposed by the Crown Attorney who, instead of fulfilling his obligation to represent the people of Ontario, focused his efforts on trying to destroy Parkinson’s credibility before the judge in an effort to keep the charges from being laid.

The decision not only affirms that a Justice of the Peace is required to issue process when there is some evidence to support the charge, but it also vindicates Parkinson’s motives in the face of the Crown which had tried to paint him as a vexatious informant.

The Superior Court decision resulted in charges of Mischief being issued against the two officers however the Crown later dropped the charges. The Crown’s refusal to allow the prosecution to go forward, however, means the officers have not been cleared and they will be forced to answer in the affirmative if a defence lawyer asks them if they have ever been charged with a crime.

It should be noted that Parkinson was not represented by legal counsel for either of the above court proceedings associated with these decisions. He did, however, receive extensive assistance from CANACE co-founder Gary McHale. 

At the time, we believed that Parkinson v. R., 2009 meant that politicians, police and native protesters would not be able to prevent citizens from laying criminal future charges against them with respect to their illegal conduct during land claim disputes (or any other matter). We were wrong. When CANACE co-founder attempted to lay charges against 3 senior government officials the Crown decided on a new tactic – trying to prevent us from even presenting evidence of crimes to a Justice of the Peace. While initially successful, it was resoundingly defeated thanks to McHale v. R., 2009 in which the presiding Superior Court justice spoke to the importance of allowing citizens to bring government officials before the Court (see below).

7. John Voortman & Associates v. HMF re: Hagersville occupation, April 2009

  • Superior Court, April 03/09: Voortman injunction ruling
  • Superior Court, April 03/09: Voortman injunction, reasons for ruling.

    • On April 03/09 Hagersville developer John Voortman was granted an injunction against native occupiers from the Haudenausaunee Men’s Fire who had shut down his townhouse development and threatened violence if the court ruled against them.  It took Justice Henderson 45 minutes to read the reasons for his ruling, a ruling that completely vindicated the information that CANACE published nearly one year ago in our report, Legalized MYTHS of Illegal Occupations. Take some time to compare the judge’s comments with our MYTHS report and…be prepared to be amazed, especially since  the authors (Gary McHale & Mark Vandermaas) are not lawyers: 

    THE RULE OF LAW

    [84] Before I conclude I would like to emphasize the rule of law. All people in Canada are governed by the rule of law as confirmed in the preamble to the Charter of Rights and Freedoms. That is, all people in Canada are required to obey the law. As a corollary, all people in Canada are entitled to know that every other person in Canada will be required to obey the law. If any person in Canada does not obey the law, the courts will enforce the law. In that way the public has some assurance that they can live in peace without fear of those who might choose to disobey the law.

    [85] In the present case the representatives of the HMF delivered a message to this court that they did not accept the court process. Moreover, there was a veiled threat that if an injunction were to issue the HMF would have no choice but to continue their tactics of intimidation and criminal and civil disobedience. That threat does not alter or affect my decision today.

    [86] The HMF clearly have a choice. An injunction will be issued today. The HMF may choose in good faith to abide by the injunction, live within the criminal and civil law, participate in peaceful demonstrations, and pursue whatever claim they believe they have through their own negotiations and/or court actions. They are not compelled, as was suggested, to disobey the injunction and engage in further criminal and civil misconduct.

    [87] The rule of law means that the HMF will be required to obey any court order, just as any person in Canada would be required to obey a court order. The assertion of an aboriginal right does not permit any person, aboriginal or otherwise, to break the law.

    When time permits, the CANACE report will be updated to reflect the Voortman decision.

    8. Vandermaas/McHale v. Fantino re: Defamation (Small Claims Court)

    OPP Commissioner Julian Fantino has made numerous false allegations against Gary McHale and his supporters since taking office. This action concerns statements made between Nov 2007 to April 2008 that McHale and/or Vandermaas are ‘involved’ in violence and have a ‘violent agenda.’ 

    Other actions against Julian Fantino and Ontario Provincial Police Association President Karl Walsh for alleged defamation are before the Courts

    References:

    8. McHale v. R., 2009: Limits on Crown discretion during private prosecutions (see also, Parkinson v. R., 2009)

    In this important ruling Superior Court Justice Marshall limited the discretion of the Crown to prevent private prosecutions of government officials by ordering that a Justice of the Peace hear evidence from Mr. McHale against 3 senior government officials. He called private prosecutions a ‘bulwark of democracy’ and cited one of the fathers of the U.S. Constitution to emphasize his point:

    [45] This case raises the important issue of a citizen’s right to lay criminal informations against public officials and for those informations to be heard before an independent judge. This is a long and hard fought right.”

    [46] Indeed, Alexander Hamilton wrote in The Federalist Papers at page 78: “Considerate men…ought to prize whatever will tend to…fortify that temper in the courts (independence); as no one can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today.”

    The combination of the Parkinson/McHale v. R. rulings means that two CANACE founders have now defined Canadian law with respect to the issuance of process for criminal charges filed via private prosecutions, and that no one is immune from that process no matter what position they may hold. Justices of the Peace are required to issue process where this is some evidence to support the charge (Parkinson v. R., 2009) and the Crown cannot prevent citizens from presenting evidence before a Justice of the Peace (McHale v. R., 2009).

    9. R. v. McHale re: ‘Counselling Mischief Not Committed’

    Gary McHale is conducting his own defence against a criminal charge of Counselling Mischief Not Committed arising out of the Dec 01/07 Caledonia smokeshop protest where he was viciously swarmed by Six Nations residents and sent to hospital. Although a Mischief charge was dismissed against a native man – Clyde Powless – for actually blocking the road and not a single charge for assaulting police officers were laid against the native perpetrators the Crown is vigorously pursuing McHale for a 14 second conversation in which he suggested to Doug Fleming that he ask other Caledonia residents to help him block the road, which he did not do. Commissioner Fantino later submitted a character reference for Mr. Powless to the Court to help him obtain a lighter sentence for leading the swarming attack on McHale.

    Fantino emails show that he ordered his officers to target McHale for charges before the investigation had even begun. Despite being a victim of the violence McHale was targeted for a dubious charge while the man who led the swarming attack received a letter of reference from Fantino to aid in his guilty plea for assaulting McHale; and Fantino intervened to stop a charge of Assault Police from being laid against him.

    When ordering his officers to target McHale at the outset of the ‘investigation’ Fantino ordered his officers not to get ‘bogged down with legal nuances’ and to work around ‘timid’ and ‘feeble’ crown attorneys. Truth is much stranger than fiction. He actually told his officers that even if they couldn’t make the charges stick the effort would be worthwhile according to Fantino because they would be able to ‘expose’ McHale.

    McHale has elected a trial by jury. The preliminary hearing began in November 2008, resumed in April/May 2009 and is scheduled to resume again in Sept 2009. It will have taken a total of 17 days of court time when finished. The trial, if any, will be held sometime in 2010 and it is estimated to require approximately 3 months of court time for the jury.  

    Other unrelated actions by CANACE Executive Director Gary McHale are continuing, including a judicial action to overturn the decision by the Crown to drop Extortion and Intimidation charges against two native protesters, and criminal charges against government officials.