McHale hearing: ERT officer “alarmed” at lack of OPP resources for Dec 01/07 protest


UPDATED 1948 EST June 19/09: Regional News, June 10/09: Officer Hartless speaks out in Court

UPDATE 1640 EST April 26/09: In the initial version of this story I stated incorrectly that Dave Hartless was originally scheduled as a Crown witness. 

In my last story I reported a number of items including Fantino’s testimony at the McHale preliminary hearing on Wed, April 22/09, and the fact that court adjourned early to give McHale time to study some startling new evidence that will be entered when Fantino retakes the stand next Tuesday April 28/09  at 0900 (changed from 1000).

Here are the highlights from Thursday and Friday, including some shocking testimony from an OPP officer regarding the lack of resources provided for the Dec 01/07 protest…

Thurs, April 23/09

1. Crown witness, DWAYNE ROLLINS, former Turtle Island News reporter

  • Employed by Turtle Island News from March 2007 until Dec 23/08.
  • Fired by TIN because “for several months” he was providing stories to the Caledonia Cafe discussion board in exchange for information on the activities of non-natives. Knew that people on the board were trying to paint McHale as a criminal and white supremacist who had committed numerous crimes. Was caught when he provided a story to the Cafe that was posted prior to publication in the TIN.  Owner/editor Lynda Powless killed the TIN story, but Rollins was exposed when it appeared on the Cafe. Couldn’t remember what screen name he used on the Cafe.
  • He wanted to ‘provide balance’ to his stories.
  • Lynda Powless is a ‘challenging individual.’
  • Took video on Dec 1/07, including 5 second clip of McHale allegedly counselling Doug Fleming to get residents to help him block the road. 
  • Video was not in chronological order; a segment from the beginning of event appearing at the end of the video after a blank screen.
  • Handed video camera to TIN employee Jim Powless (son of Lynda Powless) at approx. 6pm after the protest.
  • Video recording was placed on disk by TIN employee Clyde King.
  • McHale was usually ‘calm and composed’ but on Dec 01/07 he was ‘agitated’ and ‘swore a couple of times.’ Under cross-examination however, he admitted that nowhere in his video does McHale swear, and the only time he was really agitated and upset was when he expressed his concern for wife Christine while being led away by police after being attacked by Clyde Powless.

VoC Note:

Mr. Rollin’s 43 minute video was played for the Court. In it you can hear a woman screaming, “Gary McHale assaulted me” an event we now know did not take place. Clyde Powless screams at McHale, “It’s all on you! You stupid arrogant fucker!” Timothy Sywyk (Timmer) is seen and heard taunting McHale about his bloody face as are other members of the crowd. In contrast to the disgusting comments and physical assaults by the native side, Merlyn is seen holding a CANACE sign that says, ‘Two tier justice hurts native people too.’  Gary is seen calmly drinking a coffee and talking about how no one is going to be hurt.

Friday, April 24/09

1. Crown Witness, CLYDE KING, former Turtle Island News computer technician

  • In charge of editing & videography work: take videos, move videos of others onto main computer; edit clips for publication.
  • Left TIN Jan 2008
  • Received camera from Jim Powless at 0830 on the Monday morning following protest.
  • He was responsible for misplacing the clip at the end of the video, but didn’t know how to fix it.
  • Made 5 disks for Lynda Powless who turned them over to OPP when he was not present.
  • Noticed the video was out of sequence shortly after burning the disks.
  • It was possible that he could have missed another file.

2. Admin matters: 

  • After Mr. King testified, the Crown advised Judge Zabel that, despite being subpoenaed, Crown witness Turtle Island Employee Jim Powless had refused to show up to Court all week. The judge asked the Crown if an arrest warrant was required whereupon the Crown informed it was not necessary since the Crown had decided not to call him.
  • McHale argued against the video being entered into evidence, but was overuled by the judge who informed him that questions about the video could be raised if the matter went to trial.
  • Crown announced that its case was closed.

3. Defence Witness, DAVE HARTLESS, Detective Constable in Hamilton Police Service, Caledonia resident

  • Lives in Caledonia near occupied Douglas Creek Estates.
  • Experienced occupation by natives: April 20/06 raid when natives pushed OPP off DCE. Saw axe handles; masks; 3 smoke plumes from fires around town; OPP tactical units up and down street; part of incident where natives had stolen truck and attacked police/US agents. Truck returned with ‘contents of a porta-potty inside.’
  • Group of 10 masked natives near mailbox on his street yelling and swearing at him, yelling ‘He’s a cop!’ Threatening to burn his house down.
  • Assaults on residents; he was assaulted by natives while coming to their aid.
  • Wheel nuts loosened twice on his wife’s car.
  • Reported to OPP Inspector Ross that he saw a camoflaged native with a rifle.
  • OPP stationed in marked cars 24/7 until late spring/early summer 2007, but took no direct action except to use cell phones when incidents occurred.
  • McHale got involved shortly after the day when natives attacked the seniors, CH camera crew and OPP officers went down 6th Line by mistake.
  • (Before McHale got involved) the situation in Caledonia was ‘abhorrent.’
  • When asked by McHale what he meant by ‘abhorrent’ he said, “Policing was suspended in that town.”
  • People placed under threats, intimidation, assaults and vandalism.
  • McHale got involved in late Spring/early Summer.
  • Buffer zone between occupied DCE and residents strictly enforced against non-natives, but not against natives.
  • Was present when a large group of natives in the ‘buffer zone’ pelted a senior citizen’s home with rocks. OPP refused to intervene to stop natives. Residents lined up to protect the ‘old man’s’ house, but were driven back by natives throwing rocks, some using lacrosse sticks. Lasted 6 hours in total. Mayor was present. OPP told residents to go home and that once they left, ‘the natives would get tired and leave.’  He does not think McHale was present.
  • Wife arrested the next day after the rock-throwing incident. She and 4 other women took lawn chairs and sat in the buffer zone drinking coffee. 53 OPP officers arrived on scene to demand they leave. Video was taken. showing natives yelling at them. Counted the officers to be sure how many were present. 4 women left, but Hartless’s wife refused and was arrested for ‘breach of the peace.’ Informed the OPP on scene that their arrest of his wife was ‘unlawful.’
  • As a police officer he defines ‘Breach of the Peace’ as someone “caught up in a moment; aggressive; acting in a disorderly manner.” Police arrest the aggressor – the person about to break the law.
  • Doesn’t particularly like McHale.
  • On Oct 15/06 (inaugural March for Freedom) says, “I saw you on Oct 15/06 several times demand peaceful movement through town. You said not to engage in conflict.”
  • When asked for his response to Commissioner Fantino’s comments that Caledonia would be a peaceful place except for McHale: “I’m trying to think of a polite way to say it. (pause) I think that would be an extreme exaggeration on the part of the Commissioner.”
  •  OPP have complained about Hartless to Hamilton Police Service 4 separate times: 1. a sign on his lawn; 2. a letter to the editor of a paper; 3. formal complaint by Fantino which resulted in an 8 month investigation which cleared him; 4. a new complaint by Fantino because he signed Ken Hewitt’s petition.
  • Was told complaint #3 was from Fantino “because I criticized the OPP.”
  • When asked if an email from Haldimand OPP Commander Inspector McLean that formed part of the investigation shows McLean felt that mere association with McHale is discreditable conduct, Hartless replied, “Yes.”
  • When asked if the use of ‘police discretion’ can be influenced from above, Hartless said, “Discretion cannot be influenced from above – that’s following orders.”

4. Defence Witness, WILLIAM JEFFREY BIRD, Haldimand Detachment OPP, Caledonia resident (Originally listed as a Crown witness, but Crown decided not to call him.)

  • Previously served as Constable w/Hamilton-Wentworth Police: CID, Gangs, Tactical Unit.
  • Joined OPP in 2000, performs general patrol duties and serves on ERT (Emergency Response Team).
  • Lives in Caledonia.
  • Was  present at smokeshack protest on Dec 01/07.
  • ERT is a public order unit (riot squad); can operate in ‘soft tac’ blue uniform or ‘hard tac’ with riot gear.
  • Present at approx 90% of public protest events in Caledonia.
  • Aware that a protest had been planned for Dec 01/07 – read about it in the paper; was discussed at work.
  • Attended 20 min briefing on Dec 01/07. Main thrust was that Doug & Randy Fleming were holding protest at smoke shack. Slight recollection that McHale was discussed.
  • Q : “Were you concerned about the resources supplied by the OPP for the event?” A: “YES.” Arrived at Unity Road detachment at 0645. There were very few vehicles in the parking lot as in previous events. Became alarmed.”
  • “The lack of resources may have had an impact on how the day progressed.”
  • Normal response to anything happening in town since 2006 is to have 3 public order units. On at least one occasion the OPP had 4. Each unit has 20-30 ERT members plus less lethal members including a gas man plus one public order unit in reserve from other forces. Normally would be 90-120 public order officers plus support plus intelligence and video officers.
  • Normal to have video taken by officers. Became SOP as Caledonia progressed.
  • Helicopter used at several events.
  • Resources deployed on Dec 01/07: 7 ERT; 20 uniforms; several supervisors; other detachments had personnel aware of situation and might come if needed.
  • When asked if reinforcements were called: Only aware of “a few uniforms; it wasn’t a lot of people.”
  • Not aware of any officers videotaping as ‘pushing and taunting’ went on. Was a break in SOP.
  • No commander said specifically to focus on McHale, but he was a ‘person of interest’ and officers were told to make notes on him and his supporters.
  • Officers were also asked to gather intelligence on native leaders at protests.
  • Did not see any OPP officer approach the native driver who was the first to block the road as they did with Doug Fleming when he later blocked it. ART (Aboriginal Relations Team) members were on scene, and he assumed they would ask the native driver to move, but he didn’t witness them doing so.
  • Q: “Was the day captured based on my presence?” A: “No. The way you conducted yourself didn’t seem any different than any other event you were at.”
  • Q: “Is it fair to say that my presence had no impact on how the day unfolded?” A: “YES.”
  • When Doug Fleming blocked the road he heard Clyde Powless loudly announce, “If they want to close the road we’ll show them what that means!” “Sgt. Gutenberg asked me to speak to Doug to clear the road because if not the road would be closed or there would be repercussions.” He was also asked by a “very agitated” MELT (Major Events Liaison Team) member Tom Hodgins to get Doug to move his truck.
  • Q: “You were instructed by two officers to get Doug to move his truck or the road was going to be shut down?” A: “YES, Sgt. Gutenberg and Tom Hodgins.”
  • When asked what “closing down the road” meant in Caledonia, he talked about how natives had closed Argyle Street for 5 weeks, and had blocked roads for several days on other occasions. 
  • On Dec 01/07 natives blocked Argyle at Highway #6 and dragged a hydro tower across Argyle Street at 6th Line. The road blockages began early in the day when the “scuffles broke out” and the hydro tower was removed some time in the evening.
  • The native occupiers keep the hydro tower at the main entrance to DCE, and it was used in 2006.
  • Not sure if Clyde Powless was charged regarding the tower being used to block road. Wasn’t part of that investigation.
  • Witnessed the attack on McHale.
  • When asked if he had any concerns about how the event would unfold after McHale was led away (after being attacked by Clyde Powless) he said that his greatest concern were comments by Clyde Powless and a native lady who were saying things like, “Get the gun belts!” “Get the whites out of here!” “You cops are ours!” Was concerned that McHale’s car would be burnt along with police cars. “I wanted people to leave. In my experience it didn’t take much to set off a confrontation.”

Officer Bird will resume his testimony at 1000 Monday, April 27/09 in courtroom 2000 at the John Sopinka Courthouse on Main St. at John in Hamilton.

5. Admin matters:

  • McHale asked for and received permission to call additional witnesses. The judge advised that the earliest they could be heard would be in 201o as the court is dealing with a a backlog of cases due to a shortage of judges.

VoC Notes: 

  • Officer Bird’s testimony about the lack of impact of McHale’s presence on events differs sharply from that of Sgt. Gutenberg who blamed the entire’s day’s events on McHale and said everything was fine once McHale left the scene (after being attacked by Powless and others).

VoC Comment:

1. In Part 1 of my complaint to the Minister of Community Safety and Correctional Services I allege that the evidence suggests that senior OPP officers may have intentionally allowed the Dec 01/07 protest to become violent by deliberately providing insufficient resources. Officer Bird’s testimony seems to confirm this. Jeff Parkinson and Gary McHale were both injured that day while I was assaulted twice without suffering injury. OPP officers were also assaulted by native smokeshack supporters with not a single charge being laid against the perpetrators. The break from SOP, coupled with Fantino’s obvious obsession with targetting McHale, seems to point to a sickening conclusion.

2. As mentioned above, the backlogged court system means that the earliest McHale can call his remaining witnesses for this preliminary hearing is 2010. One cannot even guess when the trial will take place and how long it will take given the depth of the evidence McHale will present in support of his Charter argument that he was charged, not because the police had a good faith belief in his guilt, but because OPP Commissioner Fantino wanted to silence an effective critic of OPP policy. I simply cannot believe the Crown hasn’t put an end to this outrageous affront to justice by now. If this were anyone but McHale, this charge would never have been laid, and the Crown would not have wasted so many resources on it.

By the time the trial is over, taxpayers will likely have spent over $1M to fulfill Julian Fantino’s obsession with trying to silence McHale’s voice. There is a benefit to taxpayers, however: the truth about both Dec 1st and race-based policing is now being placed on record for all to see thanks to McHale’s unwillingness to plead guilty to an offence he doesn’t believe he committed. It should be noted that McHale provided the Crown and judge with a Supreme Court decision in the case of a man who was acquitted of selling bomb-making and credit card fraud instructions on the internet. The court made it clear that in order to obtain a conviction for a ‘counselling’ offence, the mere uttering of the words is not sufficient. In order to preserve free speech, the Crown must also prove that the ‘counsellor’ intended that the offence be committed and knew his words were likely to convince the ‘counselled’ party to commit the crime. In McHale’s case, lots of people were yelling advice at Doug Fleming that day, and no other resident had ever blocked the road in the past with their vehicle. There was no reason for McHale to believe they would do so now. Since the video shows McHale’s comments lasted but a few seconds it will be hard for the Crown to convince a jury that he made any serious effort to ‘counsel’ Doug Fleming into committing a crime – if it does make it to trial. Besides, if McHale wanted the road blocked, all he had to do is hand his car keys to Doug (or anyone else) and ask them to do so, something he did not do.

I’ll be in court tomorrow for the remainder of Officer Bird’s testimony, and on Tuesday for Fantino’s final day on the stand (begins at 0900) when McHale will question him regarding the new evidence he just received via Crown disclosure.

3. Judge Zabel made it clear that that he is not allowed to weigh the evidence. His job is merely to decide if there is enough evidence to warrant sending the case to trial. He cannot consider conflicting testimony or judge the credibility of witnesses. This means, for example, that if one witness testifies that McHale committed a crime and McHale produces proof that the witness was out of the country at the time he supposedly witnessed the event, the judge is not allowed to discount the false evidence. This means that there is a very low standard of proof required in order to send a case to trial.

In all likelihood McHale will be required to stand trial despite the outright lies of Crown witnesses, despite the heavy-handed directions of Julian Fantino to target McHale and despite the obvious influence of racial policing policies. The trial, if any, will be in front of a jury, and I wouldn’t want to be the Crown who ripped them from their lives for a 3 month trial to hear evidence for a trumped up charge for an offence where no one was hurt, no damage was done and no one was inconvenienced. 

Unfortunately, we will likely have to wait until some time in 2010 or 2011 to see whether the law will put an end to this circus. Thanks to McHale, however, the evidence revealed during this preliminary hearing is being exposed today. As I have noted before, he could have taken a deal at any time, but he refused due to his belief that the injustices of racial policing needed to be exposed. 

Caledonia, Ontario and Canada owe Gary McHale a great debt of gratitude for not taking the ‘easy’ way out. He has paid a heavy price to bring the truth to us.

Mark Vandermaas, Editor

4 responses to “McHale hearing: ERT officer “alarmed” at lack of OPP resources for Dec 01/07 protest

  1. Dear Mark,

    I don’t know where Gary has found the intestinal fortitude to carry on in this mess. It would have been so easy to take a deal. Amidst the insults hurled at him through residents and media, OPP and Government officials, he has displayed a strength not many of us can profess to have. I applaud his determination, ambition, and honesty in truly trying to show the truth of what has occurred in the past and now in regards to policing based on race.

    In civil rights movements in past history, not too many people favoured those valiant enough to speak up. However, it is because of those individuals willing to undergo all the agony involved in the fight for justice that we must thank every day of our lives for the rights we do enjoy.

    Race based policing policies are the most detrimental policies that have been employed in this Province. These policies have prohibited long enough the protection of the safety of person and possessions of innocent third parties caught in land claim disputes. These policies have enabled a Commissioner of the OPP to act as though he is above the law instead of serving and protecting all of us who pay the salaries of the OPP to do just that.

    The victimization of Gary McHale by Fantino will I am sure go down in history as the worst methods a policeman could use against innocent citizens.


    VoC REPLY: Thanks for the comment; I’ll pass this on to Gary. I can’t add much other than to tell you that Fantino was really loopy today after Gary exposed how he made the Assault Police charge against Powless go away. The contrast between his bizzaro-world fabrications and testimony from other witnesses couldn’t be more different. Thanks, Mark

  2. Andre Lafond

    The law is so blind in trying to protect one of their own by calling Gary McHale a trouble maker . Tapes and videos do not lie and for
    that reason Mr MacHale will be shown to be a person who just wants to see everyone treated the same no matter what color his
    or her skin is. If he was always in the front lines of all this mess, where was Gary when the natives shut down the rail lines, or the
    401 highway not to mention all crimes being commited by the natives in Brantford in which Powless and other notables were?

    So the question still remains the same, is there a two tier system of law when it comes to the rest of us and the native community ? You bet there is, and it’s sad to say but Fantino has a problem and he has made it personal in his own mind and that is to make Gary MacHale look bad in any way he can, and as a person living and paying taxes in this Province we should never ever allow one such as Mr Fantino use his office ever again to discredit a person for
    whatever his reason is.

    Andre Lafond
    Brantford, Ont

    VoC REPLY: Today, I hope to be posting info from this week’s testimony from an OPP officer that confirms the existence of race raced policing in Haldimand. We always knew it, but now we have testimony from the horse’s own mouth. Thanks for the comment, Andre. Regards, Mark

  3. Pingback: Caledonia Lawsuits – R. v. Gary McHale (Counselling Mischief Not Committed) « Caledonia Victims Project

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