McHale v. R., 2009: Gary McHale & CANACE make legal history!

CANACE co-founders Gary McHale (left) and Jeff Parkinson. 'McHale v. R., 2009' and 'Parkinson v. R., 2009' have now defined the limits of the Crown's ability to interfere with private prosecutions prior to the issuance of a charge.

UPDATE JULY 09/09: In less than one week The McHale v. R. ruling has been downloaded over 1100 times from the Caledonia Wake Up Call.com site. Does not include VoC downloads.

UPDATE: 0430 EST JULY 03/09:  ”McHale scores a major victory for democracy‘ by Jeff Parkinson.

UPDATED 2301 EST JULY 02/09: Comment from Gary McHale added.

At approximately 3pm today I received a phone call from Gary McHale who was fresh from a stunning victory before Judge Marshall of the Superior Court in Cayuga that puts an abrupt end to the attempts by the Crown to stop private prosecutions against native protesters, police officers who aid them, and government officials who criminally abdicate their lawful duties.

In the beginning the Crown took the position that they could interfere with the hearings before a Justice by smearing the character of Jeff Parkinson and other CANACE members, and by offering possible defences on behalf of those facing the charges, and by convincing the Justice not to issue process even when there was evidence to support the charges.

That tactic ended on Jan 12/09 when charges were certified against two OPP officers thanks to an Order of Mandamus granted to Jeff Parkinson in Parkinson v. R., 2009 (incorrectly listed on CanLII as R. v. Parkinson) by Judge Marshall.

• VoC feature: Caledonia Lawsuits (see Parkinson v. R., 2009)

The Crown then tried a new tactic when Gary McHale sought to lay charges against 3 senior government officials: they convinced the Justice of the Peace that their discretion allows them to prevent evidence from even being heard, and so the charges were not certified.

Gary McHale believed this was an absolute abuse of the Crown’s discretion and went back into court to seek yet another Order of Mandamus for a new hearing into the charges. The Crown was so confident in their position that their closing argument lasted all of 5 minutes until Judge Marshall pointed out that they had overlooked some ‘critical points’ made by McHale whereupon the Crown took the hint and spoke for another half hour.

Marshall twice postponed his ruling in order to review the case law, acknowledging that it was an important case. It was set to be released at 1430 on July 29/09, then postponed to June 30th at 1000, then postponed until today at 2:00 pm when he gave his remarkable ruling. It was worth the wait.

Judge Marshall quotes from one of ‘founding fathers’ of  U.S. Constitution as he defends a ‘bulwark of democracy’

Judge Marshall made it crystal clear about how important he thought McHale’s issues were to democracy by quoting two great thinkers including Alexander Hamilton, one of the fathers of the United States Constitution (emphasis mine): 

[31] The Law Reform Commission of Canada in 1986 published Working Paper 52 on private prosecutions. The commission endorsed the desirability of maintaining private prosecutions, saying:

In any systems of law, particularly one dealing with crimes, it is of fundamental importance to involve the citizen positively. The opportunity for a citizen to take his case before a court, especially where a public official has declined to take up the matter, is one way of ensuring participation.

[32] The paper, at page 21, quoted Glanville Williams: “[t]he power of private prosecutions is undoubtedly right and necessary in that it enables the citizen to bring even the police or Government officials before the criminal courts, where the government itself is unwilling to make the first move.” The Paper points out that “control of the charging process is of crucial importance.”

[41] Finally, the crown has argued that to grant the remedy sought here would be otiose and futile because any process issued would simply be stayed by the crown pursuant to its authority under section 579. Therefore, the remedy being discretionary, should not be granted.

[42] I do not accept that submission. It is entirely contrary to the reasoning of the Supreme Court of Canada in Dowson.

[43] But I would add this: in my view the right to set out before an independent judicial officer allegations such as these (in camera) is no effete formality. Indeed, it may be seen as a bulwark of democracy for the reasons set out in Dowson, and in the Working Paper I have made reference to above.

[44] In my respectful view, the matter before the Court is an important one and one that has not been directly addressed in the jurisprudence.

[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.”

[47] For all of these reasons, I would answer the question raised here — that yes there has been an excess of jurisdiction on the part of the justice of the peace and the crown attorney – such that mandamus should issue.

[48] I therefore allow the application. The matter will be returned to a justice of the peace for a hearing pursuant to section 507.1 of the Criminal Code on the various charges contained in the informations of Mr. McHale.

Released: July 2, 2009

T.D. Marshall, SCJ

•  Ontario Superior Court, July 02/09: McHale v. R., 2009  PDF

In summary

• The Crown had stepped beyond its authority by trying to prevent a citizen from presenting evidence before a judge.
• The case brought by McHale was the very situation Parliament was thinking about when they rewrote the Criminal Code to clarify the right to lay private prosecutions, that the purpose of private prosecutions is really NOT to lay charges against one’s neighbour, but against government officials who the government, police and Crown may not wish to have charged.
• A new hearing into the charges against the three government officials will be heard before a Justice of the Peace.

After the ruling was handed down, Marshall agreed to hear an application from Gary McHale for costs associated with the action, a remarkable development in of itself.

Legal history made and democracy defended by CANACE and a courageous judge

Judge Marshall, Gary McHale, Jeff Parkinson (Parkinson v. R., 2008) and CANACE have made Canadian legal history by setting absolute limits on the discretion of the Crown to ensure that no one responsible for committing crimes against the victims of Haldimand – or any other community in Canada – in the name of politically-correct racism can escape criminal accountability for their actions, no matter what office they hold.

CANACE has now defined the rules with respect to private prosecutions in Canada.

To Judge Marshall…

Thank you, Judge Marshall. If you never make another judgement in your life, you can rest easy knowing that you have never made a more important one. You have done your part to defend democracy and its foundation – that precious rule of law that makes Canada the best country in the world. You have defended the Canadian values that people like Merlyn Kinrade and I have worn a uniform to protect. You have made all the pain of the last two and a half years disappear in a moment for me.

Your wisdom and patience and knowledge and passion for the law and for the defence of democracy will live in Canadian history forever.

God bless you, Judge Marshall!

Judge Marshall was once named an honorary Chief of Six Nations

CANACE founders and our wives once attended a presentation of a play at the University of Waterloo during which Gary McHale and I were accused of being ‘agitators’ and the history of violence and crime against Caledonia’s victims was glossed over in order to produce a blatant propaganda tool for the benefit of native protesters who victimized them.

We were invited to visit the class beforehand to provide some perspective and evidence to show the suffering of Caledonia and Ipperwash residents. All of it was ignored in favour of glorifying the DCE occupiers. It was revolting, and we all felt that we had been used. 

We were most disgusted, however, when one of the actors referred to Judge Marshall as a ‘corrupt judge.’

The fact that Marshall was once named an Honorary Chief of Six Nations for all the fine work he did with the reserve’s people as a doctor (before he went to law school) was not mentioned. This, of course, would not have helped their sleazy smear/propaganda campaign on behalf of the violent gangsters they support.

• Globe & Mail, Aug 10/06: The Marshall File REPRINT
• Toronto Star, Aug 10/06: Not your average judge

The only saving grace for the play was the admission by the narrator that not all the students supported the play’s slanted point of view.

To those who may be tempted to accuse the Honourable Judge Marshall of bias and/or racism, don’t bother.

What happens now?

The Crown can drop the charges once they are certified, but they will have to explain to the public why they are protecting those criminally responsible for subverting our policing and justice systems with racial policing practices.

But…Gary McHale has another case before the Superior Court that will not be heard until October before a different judge. That case seeks to overturn the Crown’s decision to drop Extortion and Intimidation charges against two native protesters based on the argument that the Crown has shown so much bias against members of CANACE and conducted itself so poorly that they abused their discretion to such a degree that their decision to drop the charges should be overturned. No one has ever successfully challenged the right of the Crown to drop charges once they have been certified.

The Crown isn’t taking any chances. In contrast to the 5 minutes of argument they initially offered in this case, they asked the Court to set aside an entire day for their arguments on the next case!

Thank you, Gary McHale!

Who would have thought that a poor guy without a lawyer, with no legal training of his own, standing alone in his worn running shoes before the Superior Court, could have set two trained lawyers from Ontario’s Legal Service’s Branch back on their heels so decisively in order to protect the rest of us from those who have made racial policing possible!

Who would have thought that a guy who has endured so much derision and hate – some from the very people he was trying to help – would persevere with a cause most people would have never given a chance in the first place, let alone try? Who would have known that an ‘ordinary’ guy with a spelling and grammar disability could raise such a compelling and fundamental ‘defence of democracy’ argument that a Superior Court judge felt it appropriate to cite a framer of the U.S. Constitution in his order? 

Gary’s story is nothing short of heroic and I must confess to having more than a few tears in my eyes today. After all, Gary McHale and Jeff Parkinson together proved that justice does yet live in our province. I am so very relieved and very grateful and very hopeful that I will live to see the end of Racial Policing.

As I said in my email today to two Legal Services Branch lawyers (not the two up against Gary):

“I do believe this ruling means that the province’s leaders will have to turn away from the illegal, undemocratic, dead-end path they’ve been following back onto the road paved with principles such as the rule of law and equality for all people before it. This is a good day for all of us, including you and including the natives who have also suffered because of the government’s willingness to engage with – and tolerate – violent extremists as though they spoke for all native peoples.”

 I missed it!

CANACE co-founders Gary McHale (left) and Mark Vandermaas (VoC), June 29/09 - the expected date of Judge Marshall's ruling in McHale v. R.

I was in court with Gary McHale and Jeff Parkinson on Monday (June 29/09) when the ruling was first expected (see photo of us on court steps), but I couldn’t be there with them today; I was working at home cataloguing evidence for the legal actions and complaints we will be initiating against those who orchestrated and participated in the recent CUPE campaign to incite hate against us with false accusations of being neo-nazis/white supremacists/KKK, etc.  You had your day CUPE, ours is coming, and we are very determined. If you learn nothing from today’s ruling, learn that.

• VoC/CWUC blog, June 24/09: CUPE 3903 protests in support of organized crime
• VoC, June 24/09: CUPE and criminals work together against Haldimand victims

Comment from Gary McHale

I asked if Gary would provide a comment on Judge Marshall’s clearest-of-clear endorsement of the principles of fundamental justice and the rule of law for which we have been so passionately advocating for nearly three years:

Judge Marshall quoted from Alexander Hamilton in this ruling regarding the view that no man may know whether tomorrow he will be a ‘victim of the spirit of injustice’.

Freedom is never free and it comes at a high price for those who fight the battle. When the battle is won everyone shares in the blessing of Freedom while only a few pay the price. Now is not the time to say why doesn’t someone else step forward to carry the burden but the time to thank God that we are honoured with such a victory.

Although we be ‘small in number’ and the Goliath of Injustice that stands before us appears mighty, we will never surrender the Right to be Equal before the law. This battle has never been a question about who will win but only when Goliath would fall.

People in position of power tonight are wondering just how average people could directly challenge their control of the world and win. 

“The only thing necessary for evil to flourish is for good men to do nothing.” – Edmund Burke

“Man’s inhumanity to man is not only perpetrated by the vitriolic actions of those who are bad, it is also perpetrated by the vitiating inaction of those who are good.” – Dr. Martin Luther King Jr.

Gary McHale, July 02/09

Mark Vandermaas, Editor
VoiceofCanada
info@voiceofcanada.ca
Co-founder, Canadian Advocates for Charter Equality
www.canace.ca

References

Ontario Superior Court, July 02/09: McHale v. R., 2009  PDF

Ontario Superior Court: Parkinson v. R., 2009 (Note: CanLII incorrectly lists  this decision as R. v. Parkinson) PDF

VoC feature: Caledonia Lawsuits

Globe & Mail, Aug 10/06: The Marshall File REPRINT

Toronto Star, Aug 10/06: Not your average judge

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