Response to pro-OPP comments by Haldimand councillor/Police Services Board Chair Lorne Boyko in Hamilton Spectator

REVISED July 15/10 — Lorne Boyko, Councillor Ward 6, Chair of Police Services Board, Haldimand CountyHaldimand Councillor/Police Services Board Chair Lorne Boyko has not responded to the questions I submitted to him last week about his comments to a Hamilton Spectator reporter, so I will provide a counter-point to his view that OPP racial policing is legitimate based on his understanding of the Constitution and the Ipperwash Inquiry report.

Councillor Lorne Boyko, chairperson of the Haldimand County Police Services Board, said he was “delighted” when he heard Deputy Commissioner Lewis had become Fantino’s replacement. He said he has always been approachable and believed it was “a plus” in the county’s favour Lewis got the job because he is familiar with the Caledonia dispute. Asked if he believed there was two-tier justice, Boyko cited the Ipperwash Inquiry report and said: “Are (natives) dealt with differently? Sure they are dealt with differently. Does the Constitution deal with them differently? Whether we like it or not, it does. … Anybody who takes the time. It’s there.” He said he “personally liked” Fantino and said, while the county had a couple of bumps with him, “You knew where he stood in a very short time. And he stood behind his decisions.”

CALEDONIA FACTS VS. MYTHS: CHRIS LEWIS, THE IPPERWASH INQUIRY AND THE RULE OF LAW 

1. Boyko “delighted” at appointment of Chris Lewis: Lorne Boyko has expressed his ‘delight’ at the appointment of a man who was once charged with Obstructing Justice in the prosecution of Gary McHale for Counselling Mischief Not Committed, a charge laid after Lewis received instructions from his predecessor Julian Fantino to get Gary McHale and not to “get bogged down with legal nuances” doing it:

As Christie Blatchford has now revealed, thanks to internal OPPA (Ontario Provincial Police Association) documents, Lewis – with Fantino by his side – told his officers they were not allowed to enter the provincially-owned occupation site to pursue native criminals unless they kidnapped someone’s child. 

The minutes show that Detective-Sergeant Roger Geysons, president of the branch encompassing Caledonia, prefaced a question by noting that there had been several recent occurrences “involving First Nations persons observed committing a criminal act and subsequently fleeing” onto DCE. He demanded to know what written orders there were, and concluded, “Are OPP members allowed on DCE?” Mr. Lewis, then deputy commissioner, with Commissioner Fantino at his side, replied that it was “news to me that this was still an issue” and said, “Short of somebody having a kid kidnapped and running onto the DCE, we’re not going to go onto that property. It’s just a recipe for disaster and it will set things back there.”

The Human Costs of Illegal Occupations, PDF, 101pChris Lewis, therefore, is the cop who sanctioned the Douglas Creek Estates as another ‘homefree zone’ where Canadian law did not apply to natives.

2. Boyko “personally liked” Julian Fantino: Lorne Boyko “personally liked” Fantino – the former OPP commissioner who once faced a criminal charge of Influencing Municipal Official for an April 07/07 email in which he threatened Haldimand Council to intimidate them into not showing support for Gary McHale and his followers.

3. Canadian Constitution & courts say natives not exempt from law: Lorne Boyko’s apparent suggestion natives have some constitutional exemption from Canada’s Criminal Code is patently untrue:

a. The Preamble to the Charter of Rights makes it clear that ALL rights – including aboriginal – are subject to citizens’ responsibilities in maintaining the rule of law:

“Whereas Canada is founded on the principles that recognize the supremacy of God and the rule of law:”

b. Judge after judge – in and outside Haldimand/Caledonia – has affirmed that the assertion of an aboriginal right does not give one the right to break the law.

Cayuga occupation, May 12/08: OPP refuses to remove illegal occupiers. Builder obtains injunction and also authorizes CANACE's Gary McHale to gather evidence and lay charges. 9 Charges - Extortion, Intimidation, Mischief laid. Crown dropped all charges at 1st opportunity. OPP then laid 1 count Mischief vs. each vs. Floyd Montour and Ruby Montour (red hat).

1536412 Ontario Ltd.

In the case of 1536412 Ontario Ltd., a Cayuga occupation within walking distance to Haldimand County offices, the judge actually chastised the OPP for abusing their authority and power by refusing to enforce the law against native protesters, and by threatening to arrest the property owners should they exercise their right to remove the trespassers themselves:

Catagas

Catagas is a case where the Manitoba government attempted to exempt natives from hunting laws via an executive order. A native man was acquitted based on the order, but the Court overruled the acquittal. The decision cites legal precedents going back to 1688 in ruling that the Crown may not dispense with laws by executive action, and that natives are – indeed – subject to the law. Here are some illuminating excerpts from its decision (emphasis added): 

13 So what we have here is a clear case of the exercise of a purported dispensing power by executive action in favour of a particular group. Such a power does not exist. The dispensation which it sought to create was, in the words of Halsbury, “void and of no effect”.

14 Two points must here be noted. The first is that the attempted dispensation was no doubt benevolent in purpose. It flowed from a recognition of the Indian’s historic right to hunt game for food at all seasons of the year. But that was precisely the position taken by the minority judges in the Daniels case, supra. The purported dispensation would have given legal validity to the judgment of the minority and negated the judgment of the ma-jority. And that of course cannot legally be done, no matter how sympathetic one may be towards the Indian and his hunting rights.

15 The other point is that nothing here stated is intended to curtail or affect the matter of prosecutorial discretion. Not every infraction of the law, as everybody knows, results in the institution of criminal proceedings. A wise discretion may be exercised against the setting in motion of the criminal process. A policeman confronting a motorist who had been driving slightly in excess of the speed limit may elect to give him a warning rather than a ticket. An Attorney General faced with circumstances indicating only technical guilt of a serious offence but actual guilt of a less serious offence may decide to prosecute on the latter and not on the former. And the Attorney General may in his discretion stay proceedings on any pending charge, a right that is given statutory recognition in ss. 508 [am. 1972, c. 13, s. 43(1)] and 732.1 [en. 1972, c. 13, s. 62] of the Criminal Code, R.S.C. 1970, c. C-34. But in all these instances the prosecutorial discretion is exercised in rela-tion to a specific case.

It is the particular facts of a given case that call that discretion into play. But that is a far different thing from the granting of a blanket dispensation in favour of a particular group or race. Today the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants, and the next day in favour of Jews. Our laws cannot be so treated. The Crown may not by executive action dispense with laws. The matter is as simple as that, and nearly three centuries of legal and con-stitutional history stand as the foundation for that principle.

The Catagas decision is not listed on CanLII (which does not publish all decisions), but other cases – including with the BC Supreme Court – which cite it can be found there. VoiceofCanada’s copy was obtained through Gary McHale who requested it from a lawyer after seeing the case cited by others.

Centuries of legal jurisprudence and the Constitution itself make it clear there is no basis whatsoever for believing native protesters are exempt from the law or that the police and/or government may lawfully do so.

Click image to see full size version: Ipperwash Papers.ca, document N-1.

Click image to see full size version: Ipperwash Papers.ca, document N-1.

4. Ipperwash Inquiry says natives not exempt from law: Lorne Boyko cited the Ipperwash Inquiry report to back up his apparent belief that the inquiry justified racial policing practices.

First, the Inquiry’s recommendations could not take into account the deleterious effects of racial policing or native violence during a crisis like Caledonia’s because it never studied the issue of violence against innocent Ipperwash residents – which is why the inquiry did not make a single recommendation for stopping it.

  • Regional News series; by Mary-Lou LaPratte, Gary McHale, Mark Vandermaas; Feb 2009: McGuinty’s Ipperwash Cover-Up: The Caledonia Legacy [PDF, 10p]

This is shocking given that the commissioner of the inquiry stated he considered the OPP’s use of its ‘Framework for Police Preparedness for Aboriginal Critical Incidents’ in Caledonia as representing “best practices” (emphasis added):

“The Framework sets out a broad policy structure for policing a wide range of Aboriginal critical incidents. It is an operational policy, intended to guide incident commanders and officers before, during and after such incidents. […]

The OPP has been applying the Framework at Caledonia. I consider the Framework and related programs to be best practices.”

  • Ipperwash Inquiry, Volume 2 – Policy Analysis (preventing violence in future): Executive Summary  [PDF, VoC PDF, 16p] (see p87-88)

Second, the inquiry’s commissioner clearly stated – contrary to what Boyko apparently believes – that natives were not above the law, and that serious violations of the law had to be pursued by the police (emphasis added):

“A final best practice is strategic exercise of police discretion. Police discretion is fundamental to reducing the potential for violence at Aboriginal occupations and protests. Discretion may involve whether, when, or how enforcement action is taken to address alleged breaches of the law. This concept is easily misunderstood. It does not mean that anyone is above the law or that police services should have different standards for Aboriginal peoples. Nor does it mean that the rule of law and public order are somehow subservient to Aboriginal interests. […]

Police discretion at Aboriginal occupations and protests does not mean that law-breakers are never charged. It simply means that law-breakers should be charged when it is neither dangerous nor needlessly provocative to do so. […] Police discretion must always be exercised within the law. It was also be excercised in a principled, consistent manner and with a view to larger, long-term police and societal objectives. In the context of an Aboriginal occupation or protest, I believe this means police must be certain to pursue protesters or others alleged to have committed serious offences.”

  • Ipperwash Inquiry, Volume 2 – Policy Analysis (preventing violence in future): Chapter 9: Policing Aboriginal Occupations [PDF, VoC PDF, 68p] (see p190-191)

The use of the Ipperwash Inquiry’s recommendations to justify OPP conduct in Caledonia is a fraud of the highest order given that it did not study the effects of violence or those policies on non-natives. Still, even the commissioner for an inquiry that went out of its way to exclude Ipperwash non-natives and their suffering from being used to help develop aboriginal policy clearly believed that aboriginals were – indeed – subject to the law.

Residents upset with Boyko comments in Spectator story

Last Friday (July 09/10) my wife and I attended a going-away party for a Caledonia resident moving to the London area after many years in the town which was also attended by Mayor Trainer. When I raised the subject of Boyko’s comments (and thanked her for her own criticism of two-tier justice) she let me know that residents at the well-attended event had expressed great concern about his statements. 

VoC Comment

Given his admiration for a police officer who tried to intimidate his council, and for another who made an agreement to charge an innocent man in order to appease native protesters; given his woeful lack of knowledge about basic Constitutional law and jurisprudence directly related to a major community crisis; and given his complete lack of understanding regarding the true facts regarding the Ipperwash Inquiry, it seems fair to wonder if Lorne Boyko is fit to be a councillor let alone serve as the chair of the Haldimand Police Services Board. 

These latest comments are only the latest by Boyko that reveal himself to be callously insensitive to the suffering of his neighbours. In a story about the county’s ballooning police budget despite fewer officers on the job, reporter Bill Jackson said this about Boyko’s perspective of the policing services provided by the OPP:

Coun. Lorne Boyko pointed out that the county has been accustomed to an enhanced level of OPP service since 2006 due to issues involving First Nations. “John Q. Public is concerned about the bodies.”

Gary McHale’s column the following week addressed Boyko’s bizzare belief that the county had been receiving ‘enhanced’ policing services since the Caledonia occupation began:

One can only hope that Haldimand voters will give Boyko a reality check in the next election. In my opinion, a vote for Boyko is a vote for McGuinty and race-based policing – and a vote against the victims of Caledonia.

Mark Vandermaas, Editor
VoiceofCanada
info@voiceofcanada.ca

References

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7 responses to “Response to pro-OPP comments by Haldimand councillor/Police Services Board Chair Lorne Boyko in Hamilton Spectator

  1. Pingback: Haldimand councillor/Police Services Board Chair Lorne Boyko supports the race-based policing in Caledonia — mooseandsquirrel.ca

  2. What a wonderful essay, thanks for putting together such a comprehensive analysis of what race based policing looks like. Perhaps Chairmen Macslimy has been talking to the bobbies in England, they’ve perfected race/religious based policing.

    VoC REPLY: Thanks Rose. I met a woman in the London area a few months back who said she and her family left England for that very reason. Thanks for writing. Mark

  3. Mark, all the dark innuendo aside, Boyko appears to be no different than 95% of council level politicians; an empty suit who will spew the boss’s scripted talking points in hopes of getting an MPP nomination rubber stamped.

    These people are worthless to democratic process because they have no intention of rocking the boat when it needs rocking. Just ID the guy as a Race based policing mook and a spineless brown noser at election time and turf his sorry ass out.

    Gawd I love democracy!

    VoC Reply: Boyko is just one of many elected officials who should have been using the Charter as a guide to protecting our collective rights during the rough times. Instead, he is, as you said, another race based policing mook, etc. who forgot what he was elected for. Thanks, Wild Bill. Mark

  4. Pingback: Caledonia Lawsuits & Court Actions | Caledonia Victims Project

  5. Pingback: Christie Blatchford: Fantino blamed victim of assault; endorsed assailant in letter to judge « Conservatives Against Fantino

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