McHale hearing: OPP officer confirms existence of racial policing!

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UPDATE 1527 EST May 18/09: See Jeff Parkinson’s comparison of Fantino and his hero, former LA police chief Gates.

UPDATED 2322 EST May 03/09

Here are some notes of testimony at the McHale preliminary hearing heard on Monday, April 27 and Tuesday, April 28/09.

The purpose of the hearing is to determine whether McHale should stand trial for the charge of ‘Counselling Mischief Not Committed’ for telling Doug Fleming he should get other residents to help him block the road already blocked by Fleming’s own truck. 

Notables:

  • Key testimony from OPP officer Jeff Bird about the existence of racial policing. It does exist!
  • Bizarre accusations by Fantino vs. McHale after McHale shows him evidence that a charge against Clyde Powless for assaulting an OPP officer disappeared within one hour of Fantino being notified. (The Hamilton Spectator article recounting Fantino’s testimony somehow neglected to mention this critical bit  of evidence!)
  • Fantino says McHale was investigated for possible hate crime charges but never charged. Confirms the OPP had no evidence to charge McHale with any crime prior to Dec 01/07.
  • Testimony from Sgt. Sloan, the officer who refused to arrest the natives who pushed me down, but later made the the only arrest of the day – a non-native man quietly drinking coffee on the road.  Sloan also confirms the OPP were under-manned on Dec 01/07.

Please note that I am reporting the essence of actual statements made by the witnesses as well as any direct quotes to the best of my ability. I have attempted to point out obvious discrepencies in testimony, but keep in mind that since the Crown has closed its case, statements by any witness to date may (and likely will) be contradicted by Defence witnesses yet to testify. 

Monday, April 27/09

1. Admin

  • Crown stated he got message from Lynda Powless saying she just discovered the subpoena for Jim Powless. (Previously, the Crown stated he had refused to show up. Subpoenas are served in person, so it seems strange that a subpoena could be ‘lost’ without someone knowing it was served.)

2. Continuation of testimony by Defence witness, WILLIAM JEFFREY BIRD, Haldimand Detachment OPP from Friday, April 24/09.

  • Was part of a force on duty April 20/06 during OPP raid on DCE, but arrests of native occupiers were made by other units. Natives responded to raid “very unfavourably”: after arrests a large number arrived at 6th Line which grew from several hundred to 4-500. OPP had 120 ERT officers on scene. Not sure how many TRU (Tactical Response Unit) members. Large # of female officers. Natives responded with weapons including chair legs; axes; chain saw; socks filled with rocks. One officer hurt with sock filled with rocks. Incident occurred before McHale was involved in Caledonia.
  • There were other incidents that erupted in violence in the months prior to McHale’s involvement.
  • Other officers were injured prior to McHale’s involvement.
  • OPP creates a ‘traffic plan’ for events; before things become escalated they would have barriers to control traffic for protection of people. Need to divert traffic. May have been a traffic plan for Dec 01/07 but doesn’t recall one.
  • Q: “Have you ever personally heard over the radio any instructions for officers to identify the race of the person.” A: “I would have to say YES.”
  • Q: “Have you heard on the radio different instructions regarding the treatement of natives versus non-natives?” A:”I have heard things like that, but I can’t specifically say.” [During] traffic stops if occupants were non-white we were to get information and investigate later.”  These conversations took place between the unit and dispatcher.
  • Q: “Do you know of any other occasion where you witnessed different procedures for natives vs. non-natives?” “Based on your professional opinion on the job?”  A: “I personally did witness events, say common assault, where had I been working I would have made an arrest, but arrests were not made.”
  • Has 30 years experience as police officer.
  • ‘Breach of the Peace’ is authority of police to intervene in what could be a violent or threatening situation. If based on my experience I have suspicion or feeling that if I left there would be a problem. The aggressor, the one likely to cause the problem, I would remove.
  • Was present at flag-raising events.
  • Q: In your view, the person trying to raise a flag, is he the one you would arrest? A: “On that statement alone – probably not.”
  • Knows Dana Chatwell. He is a friend of Dave Brown. Their house is the only residence – aside from the homes on Thistlemoor – that backs onto DCE. Their house was between the barricades when the road was blocked by natives in 2006.
  • Had knowledge of a hidden camera placed by the OPP in their home. He was off-duty visiting the home. A real estate agent named Bill Henderson was there. Were in kitchen and heard a noise. Dave Brown found a hidden camera. Doesn’t know who placed it there, but the camera had a label saying: ‘Property of Tactical Support Branch of OPP.’ (Dana Chatwell would later testify that they did NOT authorize the OPP to place the camera in their home.)
  • Recalls incident on Dec 01/07 where Mark Vandermaas (VoC) stepped in front of a grey car driving south on the shoulder of the road. He was holding a Canadian flag mounted on a steel pole. Vehicle struck pole and skidded it along gravel. Q: “Did Mr. Vandermaas strike the car, or did the car strike the flagpole.”  A: “The car struck the flagpole.” Did not notice what happened next because his attention was drawn to some previously-peaceful conversations which were becoming “heated.” Heard some vulgarities.
  • Did not see Kyle Hagan (non-native man drinking coffee on road) arrested. Knew he had been arrested by Sgt. Sloan. Hagan was normally peaceful. Didn’t see arrest or circumstances of arrest.
  • Saw Clyde Powless drive up, rally occupiers. This was when he threatened to close road (as per his testimony on April 24/09).
  • When asked if Powless moved through the police line to get at McHale prior to Powless attacking him: “Yes, we didn’t have the resources to stop him, there was no real line.”  Q: “Was it not clear that the peace was about to be breached?” A: I came to that conclusion prior to that.”

(VoC Note: other than Kyle Hagan, there were no arrests on Dec 1/07)

  • Video played: woman yells, “Better run McHale!” Powless says, “It’s all on you McHale.”
  • Made no attempt to stop Powless.
  • Officers were talking to people, walking through crowd, “trying to keep a lid on things.” “There were a lot of occupiers, [including] a female and a gentlemen, being very abusive in general.”
  • Video played: Clyde Powless yells, “You stupid fucker. You stupid arrogant fucker!” at McHale. Video stopped – Bird identifies Powless as having his hands on officer Greg Moses of the ART (Aboriginal Relations Team) while Moses’s hands are out to side while being grabbed by Powless.

(VoC note: Powless was going to be charged with assaulting Moses, but – as Fantino’s examination by McHale would later reveal – the charge disappeared within an hour of Fantino being notified. Not a single charge for any of the Dec 01/07 assaults on police was ever laid.)

  • Familiar with the OPP’s ‘Framework for Preparedness for Aboriginal Critical Incidents.’ Developed based on past experience with native communities. Doesn’t recall that it deals with how to respond to non-natives. Framework is mainly for command officers to help in communicating and controlling in liaison with native communities. Given a copy to review during morning break. In issues involving aboriginal people we are to use little or minimum force on all involved parties. Regarding question re discretion to arrest native for blocking road Dec 01/07, “I still have discretion in something that would endanger others.”
  • The Framework forms part of the planning, strategy or response for an aboriginal critical incident. Q: “Do these policies and procedures influence how you use police discretion?” A: “I would have to say yes to that.”  Q: “How does the Framework affect your own personal use of discretion at rallies?” A:”It has made me more cautious. Under different circumstances, such as an assault occurring in front of me…(remainder of quote not written down; I recall witness answer was similar to earlier statement that an arrest might not be made where he might have made one if aggressor was not native. Subject to verification by transcript).” Q: “Does this document not direct you as an officer to talk rather than lay charges?” A: “To the best of our ability we are to try to negotiate rather than make an arrest as in another situation.”
  • Was beside Doug Fleming’s truck with Sgt. Gutenberg. It was Doug’s desire to speak to an officer in charge. Recalls that Gutenberg promised he would put Doug in contact with a senior officer. Not aware of any steps taken to make that meeting happen.
  • Q: “Are there other things that stand out regarding OPP management of Dec 1st? A: “As I said before we were well understaffed for the event.”
  • OPP kept groups apart during flagraising events; roads were blocked off; a line was extended between opposing sides.
  • Q: “As an OPP officer do you agree Caledonia would be a peaceful place but for me? A: “Not necessarily.”  Q: “The Commissioner has said, ‘But for you things would be peaceful in Caledonia.’ Do you agree?” A: “Not entirely.” Q: “Can you explain?”  A: “There were incidents that arose in Caledonia that had nothing to do with you.”
  • Doug Fleming had organized cigarette protests. 1 or 2 public order units called out to those protests.
  • Dec 1/07 had least number of officers ever deployed.
  • Arrived on scene at 1000 on Dec 1/07. Situation became volatile. Was “concerned at 0600 at CP” (Command Post on Unity Rd). Was “very, very concerned at 1000.” “We were already in trouble.” “Sense from beginning of the day we didn’t have the resources to stop anyone from doing anything.” 

(VoC note: Officer Bird’s prior testimony from April 24/09, as well as his videotaped statement after the event, also make clear that he – a 30 year police veteran and member of the OPP Emergency Response Team – was very worried about the level of resources for the protest when compared to prior events. Despite this, McHale advises that OPP radio transmissions for the day which were submitted as evidence shows that OPP backup did not arrive until after he and Jeff Parkinson had been injured near the very end of the protest.)

  • Fleming’s decision to block the road with his truck didn’t improve situation, but he felt that native occupiers had had the opportunity to make their point by blocking the road and talking to media. There was a lot of agitation on the native side after Fleming blocked the road. Told Ruby Montour they had their “moment in the sun” and now Doug was going to do the same.
  • Was afraid of losing control of situation right from the beginning.
  • Video played: Shows McHale saying, “Don’t film this.” to Jeff Parkinson. Shows McHale saying that Doug should ask residents to help him block road. Shows road blocked by Doug who is inside the truck. Says he can thinks it is McHale’s voice saying, “Doug you have to force them to arrest you.” (Note: Doug Fleming had been – with no success – doing his ‘best’ to get arrested by openly selling illegal cigarettes on Dec 01/07 and in prior protests as a way of protesting illegal smoke shacks.)

3. Defence witness, JEFF PARKINSON, co-founder of CANACE

  • McHale’s car was parked on shoulder of road, close to protest, close to police line. Was approx. 50 feet closer to smoke shack than Doug Fleming’s truck.
  • Did not hear or see McHale ask others to help Doug by moving his car to help block road.
  • In order for Doug to get people to block the road they would have to walk approx. 500 feet to their cars.
  • Witnessed Gary directing traffic through the protest. OPP were not helping with traffic – were busy with other things. Road was opened as a direct result of McHale’s efforts.
  • Saw Kyle Hagan drinking coffee approx. 6 feet onto road. Believes some traffic was moving at the time.
  • Photo shown to witness: shows Hagan standing 1 ft from Sgt. Sloan looking on. Shows OPP officers, McHale, Hagen’s mother looking at Sloan.
  • Residents were upset about Hagan’s arrest. Tried to block officers from putting him in police car. McHale told crowd to allow police to arrest Hagen peacefully.
  • McHale told people on Dec 01/07 and at other protests not to swear or use racial slurs.
  • Parkinson successful at using Order of Mandamus to lay private prosecutions against OPP officers who helped natives build barricade at illegal occupation site in Hagersville. Explained the difficulties experienced in laying the charge due to Crown opposition.
  • Was present at hearing for a second Order of Mandamus hearing where Crown finally consented to 4 charges against Clyde Powless including Assault Police.
  • Crown wants Parkinson to turn in video he recorded on Dec 01/07; over-ruled by judge.
  • Doesn’t recall McHale ever giving direction not to film at previous events. Under re-direct by Defence Parkinson says he was not a member of the ‘inner circle’ with McHale’s group until Oct 08/07 because we believed he might be an undercover OPP officer. There was, therefore, no track record of him taping events prior to Dec 01/07.
  • Clyde Powless was a speaker at our Oct 08/07 protest just prior to the provincial election.

4. Defence Witness, DANA CHATWELL, Caledonia resident

  • Lives on Argyle Street in the middle of Douglas Creek Estates (DCE).
  • Shown 2 maps to confirm property location for Court as well as location of smokeshack protest on Dec 01/07.
  • For 6 weeks the natives blocked road in 2006. They had to pass through barricades to enter/leave home. Had no mail, no garbage, no policing. Had to move son out of the home. A police checkpoint 100 ft from barricades was manned 24/7.
  • Required by natives to use a “passport” made of construction paper that was lime green and fuschia in colour, signed by native security leader Brian Skye. Had to be in car at all times. Took between 5-30 minutes to get through the barricades. Sometimes they couldn’t get through at all. Natives searched vehicle. Stole things when husband Dave Brown passed through, but not at any time she passed. All done in full view of OPP who never took any steps to stop natives.
  • Natives imposed a “curfew” of 5:30 pm, would not allow them to enter or leave their home.
  • Natives wouldn’t allow OPP through barricade. OPP told them firetrucks and ambulances would be allowed through.
  • Dave tried to get through the blockade one night at 1:00 am after the natives had imposed an 11:00 pm curfew. They refused to allow him to go home so he drove through the barricades. Natives swarmed his home and Brian Skye pushed him into a vehicle. Brown was taken to the OPP who arrested him and put him in jail. He was not charged. Dana called 911 twice. OPP called and spoke to her for hours, told her to lock doors and windows, but provided no security for the home.
  • At the time Clyde Powless was a spokesperson for the natives. She witnessed Powless operate the machinery that dug up the main road through town.
  • During another road blockade by natives on Labour Day 2008 natives “swung a 2×4 at us.” Approached OPP to have them charged. Powless was standing nearby and said he was in control and could make it stop any time.
  • Had a real estate agent in the house when the OPP’s hidden camera was found. She came in just after it was found. Did not authorize camera to be placed in the house.
  • OPP came on Wednesday prior to a January rally by McHale. Wanted her to sign a paper allowing them to charge residents for trespassing if they were on their property. Got 4 calls on day of protest from OPP asking her to allow them to arrest non-native protesters for trespassing. Q: “Do you remember, at any time, the OPP calling you to have me charged w/trespassing? A: “YES.” Can’t recall word for word. Can’t recall if OPP used McHale’s name in connection with desire of OPP to lay trespassing charges.
  • Home was ransacked after McHale rally around 1230 pm (she obviously meant 1230 am since rally was not over at 1230 pm). Saw 2 people running out back door. $40,000 in damage, mostly inside.
  • Has phoned 911 approx. 300 times since occupation began in 2006.
  • Natives had trespassed on her property, stole her Canadian flag and smashed it on a police car.

VoC Note: For more details on the suffering of Dana Chatwell and Dave Brown, see their shocking $12M statement of claim against the Ontario government:

Tuesday, April 28/09

Continuation of testimony by Defence witness JULIAN FANTINO, OPP Commissioner. Cont. from April 22/09 (see #6). See also, testimony from Nov 26/08.

1. Admin

  • Judge refuses McHale request to declare Fantino an ‘adverse’ witness. This would have allowed McHale to question him more aggressively as if he were a Crown witness. Judge says there is some hostility shown in his emails but Fantino has answered the questions asked of him.

2. Testimony, JULIAN FANTINO

  • Despite his emails that talked about McHale “spearheaded” the Dec 01/07 protest Fantino knew the organizer was Doug Fleming.
  • Can’t recall the charges against Clyde Powless. Can’t recall being told about the charges against Clyde Powless. McHale then shows Fantino Dec 06/07 email sent from Supt. Gentles to Fantino around 4:53 pm which lists charges for Powless: Assault, Assault PO, Mischief. The subject heading was “last weekend’s incident.” When asked to read the charges Fantino claimed not to know what ‘PO’ meant after the word ‘Assault’ until McHale suggested that it meant ‘Assault Police Officer,’ then his memory returned and he agreed. Aprox 1 hour later, at 5:52 pm on Dec 06/07 Fantino sent out an email with subject ‘McHale release’ that contained a press release attached. The press release was missing the ‘Assault Police Officer’ charge against Powless. First sentence: “I have tinkered with the original item…the charges need to be specified correctly.”
  • Can’t recall if he followed up on news release attached to email he sent out. McHale then shows Fantino email to Bob Goodall in which he says, “I still have not received the latest version minus the charges.” Q: “What charges do you want ‘minused’ from the draft.” A: “I have no idea.” Q: “You received info that Powless was to be charged. What charges were to be minused.” Before Fantino could answer, judge tells McHale to move on to another line of questioning.

VoC Note: Clearly, there can be little doubt that Fantino made the Assault Police charge disappear for Clyde Powless within one hour of being informed of the planned charges. Powless would later plead guilty to assaulting McHale, and Fantino would write a glowing reference letter to the Court for him in which he essentially blamed McHale for being the victim of Powless’s attack. The Mischief charge related to blocking the highway with the hydro tower was dropped by the Crown, but McHale continues to be prosecuted for ‘Counselling Mischief Not Committed.’

  • Fantino email Dec 03/07 1:12 PM, after being informed by a senior officer they could arrest McHale prior to a new protest being planned for the following weekend. “Good, I feel like doing what LA Police Chief Darryl Gates go out and arrest the goof myself.” Confirms McHale is the ‘goof’ he was writing about. Admired Gates because he went on the streets and stood guard with his officers, and wouldn’t ask them to do anything he wouldn’t do himself.

VoC Notes:

  • Fantino’s inspiration, Chief Darryl Gates, served as LA’s Chief of Police at the time of the Rodney King beating. According to Wikipedia, Gates resigned in 1992 after a scathing report by the Christopher Commission after the riots. He was known to have made some very controversial statements:

his testimony before the Senate Judiciary Committee that infrequent or casual drug users “ought to be taken out and shot” because “we’re in a war” and even casual drug use is “treason.”[2] He later said the testimony was calculated hyperbole.[3]

his dismissive response to concerns about excessive force by police employing “choke holds.” Gates attributed several deaths of people held in choke holds to the theory that “blacks might be more likely to die from chokeholds because their arteries do not open as fast as they do on ‘normal people.'”[4] (in his autobiography, Gates explained that he had been misquoted, saying that black people were more predisposed to vascular conditions and therefore less likely to have normally-functioning arteries.) This led some to refer to the iconic LA police cars as “Black and Normals” for a time[citation needed].

Be sure to read Jeff Parkinson’s in-depth comparison of Fantino with his hero Gates in, ‘Fantino and Gates – cut from the same cloth?

  • On Dec 01/07 at 3:22 pm Fantino blames McHale for the violence that was actually caused by native smokeshack supporters and orders his officers to target McHale. He also tells them not be “frustrated by timid Crowns who seem to only get charged up when they have a sure prospect of conviction.” On Dec 02/07 at 9:31 pm Fantino tells Deputy Commissioner Chris Lewis he wants a “proactive investigative strategy” against McHale and a Court order to keep McHale out of Caledonia.  Says, “I don’t want us to get bogged down with legal nuances.” At 1:12 on Dec 3/07 he sends email saying he wants to emulate Chief Gates and arrest the ‘goof” himself. McHale is finally charged on Dec 07/07. In contrast to his special treatment of a violent native activist, Fantino went out of his way to target McHale for arrest before the investigation had even begun, and blamed him for the violence even though he has admitted McHale had not been charged with any crime prior to Dec 1/07 because there was no evidence to support such a charge.

Fantino Testimony, cont.

  • Can’t recall who McHale was alleged to have assaulted.  McHale then shows Fantino email at 4:27 pm saying “looks like McHale will be charged with assault.”
  • Can’t recall receiving email from McHale in early AM advising both he and Lead Investigator John Murray of video evidence proving there was no basis to assault allegation.
  • McHale has Fantino read para in Dec 01/07 press release talking about ‘interlopers.’ Confirms he is talking about non-natives. Has never called natives from outside Caledonia ‘interlopers.’ Can’t recall labelling natives as troublemakers or mischief makers.
  • Says “You are the lightening rod for violence.” When asked how, he says “Racist comments on your part. Every time you show up it’s like a lightning bolt hitting the community.” “You were recruiting people to be arrested. You only get arrested by committing a crime.” Doesn’t recall why McHale was recruiting people to be arrested (by putting up a Canadian flag). When McHale asks if people don’t get arrested in Canada without having committed a crime, the judge stops questioning.
  • Says, “Every time you came to Caledonia there was violence…”
  • When asked to give example of racist comments by McHale, he refers to his website and mentions that complaints to OPP prompted an investigation into whether McHale had committed a hate crime. Can’t recall a specific item he considers racist on McHale’s part. No charges filed re hate crimes.
  • Q: “You testified that the OPP had no evidence to lay any charge against me prior to Dec 01/07?” A: “That’s the case.”
  • Regarding the (above mentioned) press release re the Powless charge for Mischief, can’t recall why he was charged, but he may have been informed.
  • There is training for officers regarding aboriginal issues.
  • Shows notes by Supt. Gentles: Commissioner to get hourly updates; meeting took place w/Fantino to go over charges vs. McHale at 0900 on Dec 01/07. Fantino recalls he got updates, not frequently. Has “no recollection [of meeting] other than what was in the notes which was securing a court order to keep you [McHale] out of Caledonia.”
  • Can’t recall any contact with Haldimand Council re press release.
  • Knows reason for Dec 01/07 protest was to confront issue of smoke shacks. Says, “It became another excuse to whip things up again. You know and I know it.”
  • When Doug Fleming has a protest “the smokeshop is not the cause it’s a by-product.” VoC Note: Doug Fleming was in court to hear this quote and was, as were we all, very perplexed at Fantino’s reasoning.
  • Regarding the Framework for Preparedness for Aboriginal Critical Incidents: It is a guideline for officers relative to land claim disputes. Should help officers make decisions. Q: “Do officers have to first identify the race of people?” A: “Not at all.” Does not take away or diminish officer discretion.
  • Regarding F email of Dec 04/08 (reference letter for Clyde Powless): Not aware of any blockades Powless was involved in. Not aware that Powless was involved in any other criminal activities. “I verified the truth.” Q: “How did you verify the truth?” A: “My own experience and knowledge.” Did not ask any other officers about Powless’s activities.
  • York Regional Police removed posters from hydro poles placed during a protest at his home.
  • Doesn’t know if OPP resources have ever been used to stop natives from putting up flags.
  • Doesn’t know if OPP resources have ever been used to stop non-natives from putting up flags. (There were.)
  • Knew about flag raising events. Says it wasn’t about the flag raising, it was about creating confrontation.
  • Significant resources were used by the OPP as well as outside resources every time McHale came to town.
  • “Flag raisings were the catalyst for so much trouble.”
  • Doesn’t recall if there were flag raising events prior to McHale’s. Doesn’t recall if the first person arrested for trying to raise a flag was a resident. McHale shows Dec 03/06 OPP press release describing arrest of Caledonia resident saying, “OPP had its hands full with residents…” Agreed it was not referring to Gary McHale.
  • Non-natives are not allowed to put up flags if it is likely to provoke violence or a Breach of the Peace.
  • “You [McHale] were warned you were in danger.” (Not true) Hamilton Spec report dated April 28/09 also quotes Fantino as saying, “Truth be told, we saved you from grievous bodily harm numerous times.”

VoC note: Fantino never explained exactly WHO it was they were supposedly warning McHale about and protecting him from. Fantino’s lawyer told the OHRC in July 2008 that the OPP stopped me from putting up flags to protect me and my supporters from an ‘extreme element’  in the aboriginal community. This seems to be the latest justification for arresting non-natives – to protect them from violent racists.

  • Fantino has to change focus of work on hour-to-hour, day-to-day, week-to-week basis.
  • Fantino receives information about Caledonia from: intelligence info, including from community; met with residents informally in Caledonia. “I cautioned them to be mindful of one another’s safety, not to provoke.” (again, he never says who not to provoke or who might be a threat to their safety); his own research; court rulings; Ipperwash Inquiry.
  • Processes average 125 emails per day.
  • Oversees 9000 employees.
  • Numerous phone calls per day.
  • Works 12-14 hours per day.
  • Needs to be “engaged with people.” “That’s why I go to these events where there is potential of high risk.”
  • “Your [McHale’s] presence is nothing less than entering a darkened room filled with gas and lighting a match.”
  • Doesn’t know when or where McHale was arrested. (at his home) Not aware of 24 hour surveillance on McHale’s home prior to arrest.
  • When asked where he finds the time to track expenses for one person he says he asked the force to track expenses for McHale; says he has done it for other people on other issues.

VoC note: On Nov 26/08 Fantino testified that McHale is the only person for whom the force tracks expenses.

2. Defence witness, STEVEN SLOAN, Sergeant, OPP (Senior person on site of protest, Dec 01/07)

  • Served in Caledonia since July 2007.
  • 20 years as police officer. Currently serves as Uniform Supervisor w/OPP.
  • Attended the morning briefing on Dec 01/07. S/Sgt. Carter briefed officers re protest. Didn’t anticipate any problems. Organizer was Doug Fleming. Anticipated to be a peaceful protest. Was a small ERT (Emergency Response Team) unit on standby, not a lot of officers. Doesn’t recall McHale’s name coming up. Meeting not focused on McHale. No expression that McHale’s involvement would be a problem. No concern prior to protest regarding resources allocated.
  • Arrived at protest site 0945. Received call prior to arrival saying crowd was larger than expected. Asked ERT unit to come.
  • Saw man (me) trying to run towards smokeshack. Natives trying to block me from getting through. Saw me trying to move forward. I did not push w/my hands because I was holding a flag. Saw two natives pushing back as part of “a little skirmish.” Says I slipped and fell into ditch. Later admitted he did not see me running, and did not see me pushing natives. Q: “So the only contact you witnessed was native people pushing him?” A: “YES.”
  • Admits I asked him to arrest attackers; says he advised me I could attend police station to file complaint. He wasn’t going to arrest them at that time.
  • hagan-falsearrest1_dec01-07He did make an arrest (the only arrest of the day). Road was blocked by both parties. Traffic was backed up; some people were getting out of cars. Wanted to get traffic off road. A man (Kyle Hagan) refused to move off road. Felt he was the singular cause of the road being blocked. He was the only one blocking traffic, only one who refused to move. Arrested him and originally told him he was to be charged with Breach of the Peace, later informed him he was to be charged with Obstruct hagan-falsearrest2_dec01-07Police. People were yelling. They were surrounded.
  • McHale shows photo of Hagan: He is not only person on road. A water truck appears to be moving along the road in one open lane. Police officer in middle of road.

VoC Note: For more info& video of the Hagan arrest see CaledoniaWakeUpCall feature: The Arrest of Kyle Hagan for being ‘White.’

  • McHale shows Sloan’s ‘will say’ statement: spoke with native who blocked road with his truck, but didn’t get name of driver, just make and model of vehicle.
  • Sloan reviews notes: Identified pickup truck driver as native male. Briefly spoke to him. Driver told him he was going to leave truck on road because residents were blocking road. Not sure if truck moved. Probably increased tension when native man blocked road with his truck, residents were agitated because of it.

VoC Note: Residents were only blocking the road in retaliation for the native driver blocking it first.

  • At beginning of protest he spoke with Clyde Powless who didn’t seem upset.
  • Lisa Parent asked him a question as to why the OPP weren’t enforcing the law on natives.
  • Play Lisa Parent video beginning approx. 50 seconds from start: I say, “I want to lay a charge officer.” Sloan replies, “Back off.” Parent asks why natives aren’t being arrested for breach of the peace. Recalls scene. Admits he paid no attention to my request to lay a charge against natives who pushed me. Q: “What steps did you take to prevent breaches of the peace by natives after this?” A: “We were outnumbered. There were only 8 or 9 of us and over 100 protesters.”
  • Asked Powless to calm down, not to worry. He was agitated because of the residents’ protest.
  • Sloan went down line of residents and asked them to get off road. Did not go down native line to ask them to move because he became involved in the Hagan arrest.
  • Saw Doug Fleming during the day and spoke with him. Knew that Fleming was the organizer of the protest. Asked him to stay on one side of police line trying to keep sides apart. Doesn’t recall speaking to Gary McHale.
  • Play more of Lisa Parent video: Sloan has conversation with Clyde Powless. Was trying to settle situation down.
  • Residents were upset by arrest of Kyle Hagan. They were “yelling and catcalling.” Remembers McHale telling residents to “peacefully allow the police to arrest him.” No other officers were required to assist with arrest of Hagan.
  • After arresting Hagan he left the scene and did not return. Sgt. Gutenberg took over.
  • Later in the day on Dec 01/07 he was instructed to arrest McHale around 5pm when McHale (with me and his wife Christine) visited the Unity Road detachment. “Rigby and I were told you were to be arrested for assault.” (based on the phoney assault complaint by Camille Powless) After McHale left they were advised that arrest was not going to take place.
  • Attended meeting at 2:45 in afternoon after protest. Inspector McLean, Inspector Skinner, S/Sgt. Carter, S/Sgt. Rigby. Discussed bringing in additional resources because they felt tensions were still high. McHale’s name may have come up but it wasn’t the focus of meeting. Doug Fleming’s name came up but wasn’t focus of meeting. More ERT were called in and officers brought from other detachments. May have been discussions about the hydro tower being across the road.

VoC note: Officer Bird testified on April 24/09 that the natives blocked Argyle Street with the hydro tower until some time in the evening.

3. Defence Witness, JOHN MURRAY, Detective Sergeant, OPP (Lead investigator into events of Dec 01/07)

  • Joined Peele Regional Police 1983.
  • With Tillsonburg Police 1989-2000.
  • OPP since 2000.
  • Was lead investigator. Called in after protest. Not involved in Caledonia prior to Dec 01/07.
  • At 1232 Inspector John Stevens told him Gary McHale had blocked road near a smokeshop. Stevens was relaying third party info. Did not mention anyone else by name. Never heard of Gary McHale prior. Got impression that McHale had blocked road at one end, and natives had blocked the other end. Eventually became aware McHale had not blocked the road within the first couple of days, but not on the first day.
  • Arrived to start investigation at 3:11 pm at Unity Road. Joined a meeting in progress. There are entries in his notebook prior to 3:11 pm.
  • Became of (phoney) assault allegation vs. McHale early on the first day.
  • A charge of ‘Counselling Mischief Not Committed’ was not discussed on the first day. Was discussed AFTER discovering McHale had not blocked road. Not 100% certain but guesses the CMNC charge was discussed only AFTER he knew McHale had not assaulted the native woman. On the first day the OPP were thinking that McHale might be charged for assault and for blocking the road.
  • Met with McHale, wife Christine and me at 6:35 pm on Dec 01/07 at Cayuga Detachment. Informed McHale of assault allegation. Does not recall reading McHale his rights prior to beginning a video recording of interview. Spoke with Inspector Bill Renton prior to meeting McHale. Present were Scott Thomson (sp?); Det. Const. Christopher; and three other officers. Renton did not inform the group he had already ordered McHale’s arrest. Told Renton he wouldn’t arrest anyone until after the investigation. Murray was not aware that two officers had been sent to arrest McHale prior to their meeting. Not sure who stopped the arrest.
  • Had no conversations with anyone above the rank of Inspector directing him to focus on McHale. Discussed case with Supt. Gentle. Discussed case with Supt John Caine, but not sure if they spoke before or after decision to arrest McHale.
  • Not aware of affidavit sworn by Supt. Caine.

VoC note: On December 14/07, the same day Det. Murray testified at McHale’s bail hearing that no natives were charged for assaulting police officers because none had complained, Supt. Caine signed an affidavit stating that a native man was going to be charged with assaulting police. For more info on this and other details regarding Dec 01/07 see Part 1 of my May 30/08 complaint to the Minister of Community Safety and Correctional Affairs.

  • Not given direction on who to focus on. Free to lay charges if evidence existed.

Detective Murray’s testimony will resume when the preliminary hearing reconvenes. See #4 below.

4. Admin

  • McHale preliminary hearing is tentatively scheduled to resume on Feb 02, 2010 however, the judge is attempting to arrange for earlier dates to accommodate the remaining 6-8 days McHale needs for his remaining witnesses, and closing arguments by both sides. It is possible that the hearing may resume in September.

VoC Comment – Thank you Officer Jeffrey Bird!

For two and a half years we have been fighting against a force that has consistently refused to acknowledge the existence of racially-based policing. Now we have it from the horse’s mouth, a gutsy, honest OPP officer who honoured his oath to the Court. I salute you Officer Jeffrey Bird.  

No one who has heard the evidence thus far can doubt that Fantino’s orders to target McHale before the investigation began resulted in the charge against him. Remember, McHale still has more OPP officers testifying including Detective Murray. He also has a copy of OPP radio transmissions, notes from all officers and video statements made by officers for the investigation. For a hint of what’s to come I suggest you read my May 30/08 complaint to the Minister:

Virtually every key point raised in Part 1 of the complaint has now been proven to be true, and we’re barely half-way through the preliminary hearing portion of McHale’s trial. When will the Minister order the OPP to stop its racist policing practices? Will he order an investigation into the utter lack of resources for the Dec 01/07 protest?

Will the Crown put an end to this racist and selective prosecution of a non-native activist who has finally done what no one has done before him – obtain evidence under oath from an OPP officer confirming what we all knew to be true – that race-based policing is indeed practiced by the OPP under the guidance of the OPP Framework for Preparedness for Aboriginal Critical Incidents. Again, we have Gary McHale to thank for this critical bit of evidence that will be oh-so-useful in other lawsuits.

Fortunately for us – and I do mean fortunately – the Attorney General has spent far too much money trying to fulfil Fantino’s rabid desire to remove McHale’s giant thorn in his side. The Crown and the OPP simpy can’t cut their losses and drop this farce of a prosecution because they’re blinded by arrogance and intense dislike of McHale. Because of this strategic and too-human flaw they will continue to make the critical mistake of giving McHale a venue to expose their dirty secrets. McHale is making the perpetrators of two-tier justice pay a heavy price for a ‘victory’ that is by no means assured especially since he has elected to be tried by a jury.  

“The armies separated; and, it is said, Pyrrhus replied to one that gave him joy of his victory that one more such victory would utterly undo him.”

From account of King Pyrrhus’ defeat of the Romans by the historian Dionysius. See Wikipedia entry for ‘ Pyrrhic victory,’ defined as “a victory with a devastating cost to the victor.”

We all – including McHale – win no matter what happens. The perpetrators of racial policing may well have their ‘victory’ in the end, but I suspect they are already counting the devastating costs and licking their wounds. If not, they’re even dumber than I thought.

Suggested Reading

Mark Vandermaas, Editor
VoiceofCanada
info@voiceofcanada.ca

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