UPDATE March 17/10: Senior OPP officers charged w/Obstructing Justice in McHale case.
UPDATE 1033 EST June 18/09: Additional court evidence supports allegations in Part 1 of Fantino complaint:
- McHale hearing: OPP officer confirms existence of race-based policing (also, Fantino testimony re evidence showing he interfered to get charge dropped against native man who assaulted his officers at same incident.)
- McHale hearing: ERT officer “alarmed” at lack of OPP resources for Dec 01/07 protest
UPDATE 1031 EST Feb 19/09: as of yesterday, our complaint to the Minister (right) had been downloaded over 5,600 times.
UPDATED 1534 EST Jan 23/09
This article explains how the McGuinty government refused to investigate allegations of criminal conduct by OPP Commissioner Julian Fantino, following which lawyers for the Attorney General of Ontario then used the complaint document in what would prove to be a spectacularly unsuccessful attempt to impugn the motives of CANACE founders during criminal and civil proceedings in unrelated actions.
The consequences of their failure will have far-reaching benefits to us and to the victims of Caledonia. One benefit is that this story can now be told…
Allegations against Commissioner Fantino
On May 30/08 I filed a 71 page complaint on behalf of Gary McHale, Jeff Parkinson and myself with the Minister of Community Safety and Correctional Services Rick Bartolucci asking for an RCMP investigation into the evidence in our possession that we believe supports the laying of 3 Criminal Code charges against OPP Commissioner Julian Fantino:
- Obstruction of Justice, s.139
- Influencing Municipal Official, s.123
- Breach of Trust by Public Officer, s.122
Police Services Act complaint, May 30/08: Vandermaas-McHale-Parkinson v. Fantino
We were not asking that charges be filed against the Commissioner; we were reporting what we considered to be highly improper behaviour which we also believed – in good faith – may have crossed the line into criminality. We wanted a transparent, independent investigation, failing which we would use the only means remaining to seek justice – private prosecution. (By this time Gary McHale had been successful in having the court certify 9 charges of Mischief, Intimidation and Extortion against two native protesters via private prosecutions.)
Important evidence not available at time of complaint
Keep in mind when reading Part 1 of the complaint that, at the time of submission, we did not yet have the smoking gun emails that prove conclusively that Commissioner Fantino ordered his officers to target Gary McHale for arrest on Dec 01/07 before the investigation into the violent smokeshack protest had even begun:
- Crown disclosure to McHale, Volume 7, Tab 3, p19: Fantino email, Dec 01/07
- R. v. Gary McHale, Nov 10/08: Amended Application of Charter Challenge (see emails beginning p12; p14 of PDF doc)
- Voice of Canada, Nov 11/08: McHale Charter application alleges Fantino misconduct
Also keep in mind when reading the emails that on Nov 26/08 Fantino testified under oath that the OPP had not charged McHale with any crime prior to Dec 01/07 because they had no evidence to support any charges. This means that at the time he was ordering his officers to target him for arrest Fantino had NO evidence that McHale had committed any crime during our efforts to oppose racial policing prior to that day.
- Voice of Canada, Nov 27/08: Fantino testimony at McHale trial: what the media didn’t report
Clearly, the Fantino emails bolster our claim in Part 1 of the complaint that he perverted the course of justice by tainting the investigation which resulted in racially-driven charges in connection with the Dec 01/07 smokeshack protest at which peaceful non-natives and OPP officers were attacked by various violent natives.
The emails, coupled with his Nov 26/08 testimony, also support our claim in Part 3 that Fantino lied to the public and to Haldimand Council about McHale and his followers in order to suppress non-native opposition to OPP racial policing practices.
Had the Minister asked for and examined our evidence and then referred our complaint to the RCMP this additional evidence – and likely more – would have certainly have come to light. I would argue that given the previous complaints against Fantino – all dismissed by the previous Minister Monte Kwinter without investigation – he had a responsibility to use due care and diligence in reviewing and acting on allegations of misconduct against the Commissioner. Unfortunately, this was not to be.
Instead of doing the right thing, the Minister chose to cover Fantino’s back.
Minister dismisses complaint without investigating
The Minister of Community Safety and Correctional Services is appointed under the Police Services Act to receive complaints against the Commissioner of the OPP. Unfortunately, Bartolucci did not call the RCMP as we requested. He did not even ask for our supporting evidence. He simply dismissed the complaint and its allegations out of hand.
As shocking as the complaint itself is, the Minister’s eagerness to downplay the Commissioner’s role in targetting non-natives for minor charges while allowing natives who had atttacked OPP officers to go uncharged as explained in Part 1, and his refusal to even acknowledge the existence of Part 3 of our complaint speaks volumes about the government’s willingness to overlook Fantino’s outrageous conduct:
- Vandermaas letter to Minister, July 10/08: Request for response to complaint
- Minstry letter to Vandermaas, July 14/08: Acknowledgement of request for response
- Ministry letter to Vandermaas, July 18/08: Dismissal of complaint
- Vandermaas letter to Minister, July 25/08: Request for response to Part 3 of complaint
- Minstry letter to Vandermaas, Aug 26/08: Confirmation of dismissal of complaint (no answer to request for response to Part 3)
- Attorney General Of Canada letter to Vandermaas, Jul 31/08: Unable to provide assistance
- Attorney General of Ontario letter to Vandermaas, Jun 26/08: No authority to act
Attorney General uses complaint to attack credibility of complainants
Instead of investigating the allegations in our complaint, the Minister instead passed it on to the Attorney General’s office; you can see that the source of the document was Minister Bartolucci’s office by the two ‘RECEIVED’ stamps on the title page of the complaint itself.
On Aug 14/08, less than one month after Minister Bartolucci dismissed our complaint, the Civil branch of the Attorney General began to use it without permission by filing it at the Cayuga courthouse against CANACE co-founder Jeff Parkinson and Mr. McHale in an attempt to prove that CANACE members were abusing the judicial process. We have attached the affidavit sworn for this very purpose to the front of the complaint document.
This action by the Attorney General put our private complaint into the court system and into the public domain.
Our complaint was also used, again without permission, by the Criminal branch of the Attorney General against Jeff Parkinson to stop him from laying criminal charges against OPP officers. This second attempt to smear CANACE members in the eyes of the court failed miserably when Judge Marshall ruled on Jan 12/09 in the case of Parkinson v. Regina. Not only did Marshall order a new hearing into the charges, he also vindicated Parkinson’s motives:
- Voice of Canada, Jan 19/09: Victory in Cayuga Court for CANACE founders
The lesson is clear: if you file a complaint against the Commissioner with the Minister of Community Safety and Correctional Services as per your right under the Police Services Act, 1. It will NOT be investigated; 2.You should not expect it to remain confidential, and 3. You should expect the document to be used against you or your associates in unrelated proceedings.
All this, of course, defeats the very purpose of police oversight. For all practical purposes, there seems to be no oversight whatsoever on the Commissioner of the OPP.
Why we waited to publish this complaint
Part 1 of the complaint contains evidence obtained under Crown disclosure to Gary McHale to assist him in the defence of the ‘Counselling Mischief Not Committed’ charge laid by the OPP in connection with the Dec 01/07 protest by residents at an illegal smokeshack in Caledonia. It would have been improper therefore, for us to have released the document to the public. Once the Crown filed it in their defence to an unrelated legal action by Parkinson and McHale however, the document then entered the public domain.
Had it not been for the Attorney General’s silly and persistent attempts to help the OPP evade accountability by smearing CANACE founders instead of responding to the issues we have raised, we would not been able to publish this important document, and we would not have achieved an important victory in Parkinson v. Regina.
Not the first time a McGuinty minister has covered for Fantino
As you will read in the May 30/08 complaint, this is not the first time a Minister has rejected complaints against Fantino without investigating them, including several by Caledonia residents who must remain un-named. The complaints below were all dismissed by the former Minister of Community Safety and Correctional Services Monte Kwinter:
Other instances where government lawyers have tried to deny access to justice by attacking motives of non-native activists
1. On July 22/08 the MoAG lawyer for Julian Fantino and the two officers who arrested me while trying to raise a Canadian flag finally responded to my complaint to the Ontario Human Rights Commission. They refused to attend a scheduled mediation session, told the OHRC they were not going to provide a substantive response to the allegations, and then proceeded to argue that my claim should be dismissed as frivolous, vexatious, groundless, made in bad faith, etc. The only problem was that the evidence they provided to the OHRC actually supported my allegations. Unbelievably, Fantino’s lawyer tried to justify their actions by telling the OHRC that they believe they have the right to arrest innocent potential victims of violence as an alternative to protecting them and their rights:
“Mr. Vandermaas’ actions in relation to the situation at Caledonia have made him a potential target of the more extreme element who do not share his views. It is the Respondents’ position that any actions it has taken in relation to Mr. Vandermaas have been to preserve the peace and to protect Mr. Vandermaas and his supporters from harm.”
“The Respondents do not dispute that on December 16, 2006 and January 20, 2007 OPP officers objected to Mr. Vandermaas erecting or attempting to erect a Canadian flag across the street from the occupied area.”
“It was the Respondents’ honestly held belief that the placement of the flag could provoke others to breach the peace and put Mr. Vandermaas and others in harms way.”
- Voice of Canada, Sept 16/08: Human Rights complaint forces Fantino to tell truth (Part 1)
- Voice of Canada, Sept 16/08: Human Rights complaint forces Fantino to tell truth (Part 2)
Clearly, by the government’s own admission, my complaint was anything but frivolous. I submitted a 45 page response to the OHRC arguing against dismissal on Sept 02/08 along with even more supporting evidence. The good news is that the OHRC did not dismiss my complaint; the bad news is that the Commission is transitioning from an investigatory role into a tribunal function; all complaints not set for a hearing by Dec 31/08 will die with the complainants being forced to start all over again by filing a new complaint to the Human Rights Tribunal of Ontario no later than June 30/09. Unfortunately, my complaint is one of them.
2. On April 23/08 Commissioner Fantino told a Toronto radio audience that Gary McHale and I were ‘involved’ in violence and had a violent ‘agenda.’ After giving Fantino the opportunity to apologize we each filed Small Claims Court suits for defamation.
- Notice under Libel and Slander Act, April 24/08: Vandermaas v. Fantino
Fantino’s lawyers however, wrote back to insist his statements were true, and again they trotted out the same, tired ‘frivilous’ claim argument:
“7. The Defendant pleads that the plaintiff’s claim discloses no reasonable cause of action, and is frivolous, vexatious and an abuse of process. Furthermore, the plaintiff’s claim has been brought for the improper purpose of furthering the plaintiff’s political agenda.”
McHale and I didn’t just fabricate an imaginary radio interview story to make the Commissioner a target of a phoney lawsuit. For two years, we have been trying to stop him from making false statements about us without success. The Minister has refused to silence him, so a Small Claims action seemed like the most expeditious way to force Fantino to ‘put up or shut up.’ How can it be an abuse of process to demand that the Commissioner of the second largest police force produce evidence in a court of law to back up his statements against two people who have never been charged with a violent crime?
Why Attorney General lawyers attack our motives
There can be no doubt that the McGuinty government knows full well that Fantino is using his office to try to silence non-native opposition to the disgusting practice of race-based policing. As citizens of Ontario we and others from Caledonia have done our democratic duty to bring the truth to their attention. Since two separate ministers have now refused to act on the information we can only assume the obvious – that Fantino is doing exactly what he was hired to do.
One might argue that we owe Minister Bartolucci, Minister Kwinter and the Attorney General’s office a huge debt of gratitude in that their conduct shows just how utterly devoid the government and OPP are of any lawful justification for the conduct of Fantino and the OPP.
- CANACE report: Legalized MYTHS of Illegal Occupations
- CANACE report: The Human Costs of Illegal Occupations
Certainly, if the Liberals or OPP had any legal basis (thankfully, the tainted Ipperwash Inquiry does NOT have the force of law) for allowing the OPP Commissioner to lie to the public and enforce race-based policing against non-natives they would be shouting it from the rooftops. Their silence betrays them. The fact that they feel the need to use their legal muscle to try to prevent non-native activists from gaining access to the courts speaks volumes.
Why Attorney General lawyers will be unsuccessful in attacking our motives in the future: Parkinson v. Regina
Jeff Parkinson is a co-founder of CANACE (Canadian Advocates for Charter Equality). It was his persistence – with research assistance from Gary McHale – that resulted in an Order of Mandamus being certified by Judge Marshall in Superior Court on Jan 12/09. The Order forces a new hearing into private prosecution charges brought by Parkinson against two OPP officers. As discussed earlier, the Crown was initially successful in stopping the prosecutions by trying to paint Parkinson as a vexatious complainant due in no small part to his association with CANACE and the May 30/08 complaint discussed herein.
In granting the Order of Mandamus, Judge Marshall had this to say about Parkinson’s motives and those of reformers generally:
…the incriminating evidence or intent, is virtually all in the video of the police helping to erect the barricade. It is hard to see how animosity in the informant could taint the video.
 Besides this, and in any event this discretion to not issue because of vexation or ulterior motives should in my respectful view be very carefully exercised. If it is not, I would expect there would be few private prosecutions. These cases are after all, generally brought by people because the crown or police for reasons of their own apparently have not proceeded in the usual manner through the police and the crown. A private prosecution such as this is an important part of the public duty to oversee the administration of justice. This is clear on the authorities I have referred to.
 Often, much public good is done by people wishing to advance their own ends. The great example outside the law is of course the “invisible hand” of Adam Smith and much philanthropy is, one expects, undertaken with some less laudatory motives than the public good. If one were to pursue motives — one can always find ad hominem motives in a reformer.
 We should look – except in the clear case – at public benefit not private demons.
 I note, in reviewing the transcript there is evidence of good motive too. Mr. Parkinson stated at line 20, page 23 of the transcript: “I’m not here out of vengeance, I’m here because of what I saw that day” and finally at page 24, line 15: “And, I’m here simply because I believe that these people should be held as accountable as anyone else would be for their actions.”
Superior Court decision, Jan 12/09: Parkinson v. Regina
- Voice of Canada, Jan 19/09: Victory in Cayuga Court for CANACE founders
- CaledoniaWakeUpCall.com feature: ‘Parkinson v. R. 2008′ (links to other court docs)
Thanks to Jeff Parkinson, Gary McHale and Judge Marshall the Crown will no longer be able to impugn the motives of CANACE members – or other activists -as a means to deny access to the courts, and citizens are now free to file criminal charges against those the police refuse to charge including police officers and politicians. As Gary McHale wrote in his Regional News Column of Jan 13/09:
The Crown worked hard to ensure that Mr. Parkinson and Mr. McHale were not able to get a Justice of the Peace to issue process of criminal charges because they are well aware that paperwork had already been filed to lay criminal charges against senior OPP officers and a cabinet minister in McGuinty’s government on the charge of Common Nuisance for failing to protect Sam Gaultieri at the Stirling development. The Government had already received paperwork accusing senior OPP officers of Breach of Public Trust.
This ruling by Marshall truly means that if any citizen has evidence that a crime has been committed they will see those charges laid and if not they can use an Order of Mandamus to COMPEL the Justice to issue process.
Regional News, Gary McHale, Jan 13/09: Judge Marshall Rules in Favour of Mandamus
Even Fantino and McGuinty must see the writing on the wall: race-based policing is a disastrous experiment in politically-correct, bizzaro-world policing that never had any chance of success. The fact that CANACE founders have scored key victories in the courts should be a clue.
The fact that MPP Toby Barrett, MP Diane Finley, three members of Haldimand Council and a couple thousand people have signed a petition condemning Fantino’s conduct and calling for an inquiry into Caledonia should be a clue.
- Ken Hewitt, Dec 26/08: Open Letter to Commissioner Julian Fantino
- Dunnville Chronicle, Jan 17/08: Petition asks for inquiry into Fantino and OPP (4 paras quoting Mary-Lou LaPratte from Ipperwash)
The fact that Gary McHale got 4,821 votes in the last federal election, winning every poll in Caledonia except the two in which he came second should be a clue.
- Gary McHale election website: www.garymchale.ca
The fact that lawsuits against the OPP from Caledonia’s victims are piling up should be a clue.
- VoiceofCanada feature: Caledonia Lawsuits
The fact that MPP Toby Barrett drafted a proclamation calling for an end to race-based policing should be a clue.
- Voice of Canada feature: The Barrett Proclamation
The fact that artists are creating works condemning McGuinty and Fantino’s racial policing policies should be a clue.
- Voice of Canada feature: Caught in the Middle (Barb Patterson-Tuck painting)
- James Irvine w/Caledonia residents: Caledonia: a Protest Song
The problem, however, is that even if their egos allowed it the purveyors of race-based policing in Caledonia simply cannot now admit they were wrong because it would expose the government and likely some individuals to enormous liability. It is not inconceivable that total civil claims associated with racial policing practices could exceed 500,000,000 dollars, not to mention the possibility of criminal liability for those who refused to carry out their duties to protect the innocent. And, of course, all this scandal and waste might affect Liberal chances in the next election.
No wonder they won’t call in the RCMP to investigate Fantino. No wonder they have tried so hard to silence the voices raised against them.
“In a time of universal deceipt, telling the truth becomes a revolutionary act.”
George Orwell (Author of 1984 and Animal Farm)
Let the revolution continue.
Mark Vandermaas, Editor
Voice of Canada