Caledonia Lawsuits

Note: the case references on this page are slowly being transferred to the Caledonia Victims Project website to unique pages of their own as time permits:

Other Key Resources: 

Crimes against democracy revealed

The court decisions below reveal clearly that Caledonia’s agony at the hands of native extremists was callously tolerated and encouraged by the McGuinty government’s refusal to order the OPP to enforce the law and protect non-native victims and it was all patently illegal – every bit of it. 

What the Ontario government allowed to take place in Caledonia is undoubtedly the biggest fraud – in both human and economic terms – in Canada’s history. There was never any lawful justification for allowing it to happen, and there can be no doubt – none – that the politicians knew it, else why would they try to hide it in plain site by calling it ‘peacekeeping.’? 

The victims of this illegal, so-called peacekeeping mission [see questions for journalists re peacekeeping] represent more than ‘just’ the lives of innocent human beings who were traumatized physically and/or psychologically. The decision to suspend the right of non-native Canadian citizens to full protection under the federal Charter and the province’s Police Services Act  in order to engage in a bizarre, symbiotic relationship with violent, organized crime groups who did/do not represent the people of Six Nations represents – in my opinion – an unconscionable crime against democracy. 

Case Summaries:   

  • A. Court Decisions: Illegal Occupations & Land Claims
  • B. Court Decisions: Prosecution of Government Officials
  • C. Court Actions: Illegal Occupations & Land Claims
  • D. Court Actions: Caledonia Residents
  • E. Court Actions: Defamation of Non-Native Activists
  • F. Court Actions: Human Rights Tribunal of Ontario
  • G. Complaints: Police Services Act
  • H. Criminal Case vs Gary McHale (Counselling Mischief Not Committed)

A. Court Decisions: Illegal Occupations & Land Claims

NOTE: All court decisions below were handed down after release of CANACE’s ‘Legalized MYTHS of Illegal Occupations‘ report. 

A1.  1536412 Ontario Ltd. v. HDI, Ruby & Floyd Montour (Cayuga occupation, May-June 2008)

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).

A2. John Voortman & Associates v. HMF (Hagersville occupation, April 2009)

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A3. McHale v. Ruby Montour and Floyd Montour (ONTARIO COURT OF JUSTICE) 

CHARGE(S): Extortion, Intimidation, Mischief 

INFORMANT: (Private Prosecutor): Gary McHale 

DEFENDANT(S): 

  • RUBY MONTOUR – Extortion; Intimidation; Mischief (x2)
  • FLOYD MONTOUR – Extortion; Intimidation; Mischief (x3)

DECISION: PROCESS ISSUED (9 charges total) 

  • ONTARIO COURT OF JUSTICE, July 08/08: McHale v. Ruby Montour & Floyd Montour [PDF]
  • 9 charges issued vs. 2 Defendants: Extortion, Intimidation, Mischief
  • All charges dropped by Crown; replacement Mischief charge laid by OPP vs. each defendant.
  • Judicial review of Crown’s decision to drop charges based on alleged racial bias to be heard in Ontario Divisional Court (3 judge panel).

ISSUES: 

  • Private prosecution of native protesters re illegal occupations in Hagersville & Cayuga.

    Cayuga occupation, May 12/08: Builder gives CANACE's Gary McHale authorization to gather evidence and lay charges after OPP refuse to remove native trespassers. 9 Charges - Extortion, Intimidation, Mischief laid. Crown dropped all charges at 1st opportunity. OPP then laid 1 count Mischief vs. each.

  • Refusal of police (OPP) to remove or prosecute native protesters involved in illegal occupations.
  • Attempts by native protesters to extort money from builder via occupations and threats.
  • Extortion, Intimidation, Mischief (9 charges total)
  • Native protesters are subject to prosecution for crimes during illegal occupations.
  • CANACE case (authorized by 1536412 Ontario Ltd. (see above) to gather evidence, lay charges during occupation of May 12/08).

BACKGROUND/NOTES: 

On May 12/08 members of CANACE were asked by a developer to gather evidence for the purposes of laying criminal charges against native protesters who had blocked access to their Cayuga townhouse development. The property owners were having serious financial issues due to the delays and were frustrated because the OPP refused to remove the occupiers. While on scene, we recorded OPP site commander, Sgt. Michaud explaining why they refused to enforce the law. The conversation was recorded on video: 

CANACE Executive Director Gary McHale used the private prosecution provisions of the Criminal Code to convince a JP to certify 9 charges against two of the protesters for Mischief, Intimidation and Extortion. The Crown dropped the Intimidation and Extortion charges. At the time of writing (June 03/09) McHale was seeking an order to overturn that decision in the Ontario Superior Court. See, McHale v. Montours, 2008 below. 

On April 22/09, despite the clear rebuke to the OPP’s illegal actions, Julian Fantino testified in a Hamilton courtroom that, after watching the video, he fully supported Sgt. Michaud’s position of not protecting the property owners from the native occupiers. (transcript available) 

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B. Court Decisions: Prosecution of Government Officials

B1. Parkinson v. R., 2008 (Publication Ban/Private prosecution of OPP officers) 

APPLICANT:  Jeffrey Parkinson (CANACE) 

DECISION: APPLICATION GRANTED 

  • ONTARIO SUPERIOR COURT, Dec 11/08: Parkinson v. R. [PDF]

ISSUES: 

  • Oppose publication ban during judicial review of private prosecutions.
  • CANACE case.

BACKGROUND/NOTES: 

This decision is related to a publication ban sought by the Crown regarding an Order of Mandamus Application hearing on the decision by a Justice of the Peace decision not to issue process for charges against two OPP officers who were videotaped assisting native occupiers to build a barricade to keep the legal owner out of his Hagersville property. 

The Application succeeded, and the publication ban was not granted. The officers were, in fact, later charged as a result of Parkinson v. R, 2009 (see below). Jeff Parkinson is a co-founder of CANACE (www.canace.ca). 

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B2. Parkinson v. R., 2009 (Private prosecution of OPP officers) 

Hagersville, May 23/07: OPP officers assist native militants to build fence to keep legal owner of property out. Superior Court Justice Marshall (now deceased) hears the evidence, listens to opposing arguments from Attorney General lawyers and, on Jan 12/09, ordered JP to charge them w/Mischief as per Parkinson v. R. Crown dropped charges at first opportunity.

CHARGE: Mischief 

INFORMANT (Private Prosecutor): Jeffrey Parkinson (CANACE) 

DEFENDANTS: 

  • RICK FRARACCI (Detective Sgt., Ontario Provincial Police)
  • CHRISTOPHER GALEAZZA (Constable, Ontario Provincial Police)

DECISION: PROCESS ISSUED –  

ISSUES: 

  • Order of Mandamus to overturn decision by Justice of the Peace not to issue process for private prosecution of OPP officers.
  • Private prosecution of police (OPP) officers who assisted native protesters in building barricade to keep out lawful owners during illegal occupation.
  • Motives of informant not factor in decision to issue process except in clearest cases.
  • Police officers not exempt from law during aboriginal protests.
  • Charges issued by JP; dropped by Crown.
  • CANACE case.

BACKGROUND/NOTES: 

Parkinson v. R. is a precedent setting decision whereby Jeff Parkinson, aided by Gary McHale (both co-founders of CANACE) used, for the first time ever in Canada, an Order of Mandamus to overturn a JP’s decision not to issue process on a private prosecution. 

Parkinson attempted to lay criminal charges of Mischief against two OPP officers who assisted native protesters to build a barricade on private property to keep the lawful owner out on May 23/07. He, along with Gary McHale, was opposed by the Crown Attorney who, instead of fulfilling his obligation to represent the people of Ontario, focused his efforts on trying to destroy Parkinson’s credibility before the judge in an effort to keep the charges from being laid. 

The decision not only affirms that a Justice of the Peace is required to issue process when there is some evidence to support the charge, but it also vindicates Parkinson’s motives in the face of the Crown which had tried to paint him as a vexatious informant. 

The Superior Court decision resulted in charges of Mischief being issued against the two officers however the Crown later dropped the charges. The Crown’s refusal to allow the prosecution to go forward, however, means the officers have not been cleared and they will be forced to answer in the affirmative if a defence lawyer asks them if they have ever been charged with a crime. 

It should be noted that Parkinson was not represented by legal counsel for either of the above court proceedings associated with these decisions. He did, however, receive extensive assistance from CANACE co-founder Gary McHale. 

At the time, we believed that Parkinson v. R., 2009 meant that politicians, police and native protesters would not be able to prevent citizens from laying criminal future charges against them with respect to their illegal conduct during land claim disputes (or any other matter). We were wrong. When CANACE co-founder Gary McHale attempted to lay charges against 3 senior government officials the Crown decided on a new tactic – trying to prevent us from even presenting evidence of crimes to a Justice of the Peace. While initially successful, it was resoundingly defeated thanks to McHale v. R., 2009 in which the presiding Superior Court justice spoke to the importance of allowing citizens to bring government officials before the Court (see below). 

Caledonia residents in the gallery present when Justice Marshall released his decision on Jan 12/09 were crying in happiness when they realized that justice yet lived in Ontario. 

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B3. McHale v. R., 2009 (Private prosecution of government officials) 

APPLICANT: Gary McHale (CANACE) 

DECISION: APPLICANT (upheld on appeal) 

COURT OF APPEAL FOR ONTARIO: McHale v. R., 2009 was upheld by the Court of Appeal for Ontario which heard the Crown’s appeal on Jan 14/10 and released its decision May 17/10:

  • May 17/10: Order – McHale v. R, 2009 [PDF, 1p]
  • May 17/10: Decision – McHale v. R., 2009 [PDF, 35p]

ONTARIO SUPERIOR COURT:

ISSUES: 

  • Order of Mandumus to overturn Justice of the Peace decision to grant Crown discretion to withdraw private prosecutions of [government officials] before presentation of evidence before JP.

    Caledonia occupation, Sept 13/07: Sam Gualtieri in hospital after being attacked by native militants with an oak club inside the home he was building for his daughter at the Stirling Street development, site of another illegal occupation where police refused to remove native trespassers.

  • Private prosecution of government employees for conduct during Stirling Street occupation resulting in injury to Sam Gualtieri due to attack by native protesters inside his home (see Samuel & Sandra Gualtieri v. R.).
  • Private prosecution of OPP lawyer re conspiracy to unlawfully confine Mr. McHale via false arrest.
  • Crown cannot prevent a citizen from presenting evidence of a crime before a justice of the peace.
  • CANACE case.

EXCERPTS 

[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.” 

BACKGROUND/NOTES: 

In this important ruling Justice Marshall limited the discretion of the Crown to prevent private prosecutions of government officials by ordering that a Justice of the Peace hear evidence from Mr. McHale against 3 senior government officials. He called private prosecutions a ‘bulwark of democracy’ and cited one of the fathers of the U.S. Constitution to emphasize his point: 

The combination of the Parkinson/McHale v. R. rulings means that two CANACE founders have now defined Canadian law with respect to the issuance of process for criminal charges filed via private prosecutions, and that no one is immune from that process no matter what position they may hold. Justices of the Peace are required to issue process where this is some evidence to support the charge (Parkinson v. R., 2009) and the Crown cannot prevent citizens from presenting evidence before a Justice of the Peace (McHale v. R., 2009). 

A possible indication of the outcome is reflected in the observations of the National Post’s legal reporter Shannon Kari who watched the Crown and Gary McHale make their respective arguments: 

The Crown was appealing another Superior Court decision in favour of Mr. McHale, about when the Crown has the authority to dismiss a privately initiated charge. 

Crown attorney John Patton argued that it has the authority to dismiss a charge, even before a private citizen presents evidence to a justice of the peace. More than 25 years ago, the Supreme Court of Canada said it was a “fundamental and historical right” of a citizen “under oath” to inform a justice of the peace of a potential crime. 

The three-judge panel of the Court of Appeal appeared skeptical of the claim that the Crown has this power. “Then there really is no such thing as a private prosecution,” noted Justice Warren Winkler. 

National Post, Jan 15/10: Fantino case delayed until February [PDF] [REPRINT]

The Court of Appeal’s ruling leaves open the possibility that the Crown could stay private prosecutions as an alternative to withdrawing them. This issue may require the Supreme Court of Canada to clarify, as it did in the near-identical case of  Dowson in 1983, that the Crown has no such authority. 

If the appeal is denied, several government officials may face criminal charges once Gary McHale is permitted to present evidence to a justice of the peace. 

Sadly, Justice Marshall passed away after this ruling, possibly one of the most important of his career. 

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B4. McHale v. Attorney General of Ontario, 2009 (OPP Commissioner Julian Fantino) 

CHARGE: Influencing Municipal Official 

INFORMANT (Private Prosecutor): Gary McHale (CANACE) 

DEFENDANT: Julian Fantino – Commissioner, Ontario Provincial Police 

DECISION: PROCESS ISSUED  

  • ONTARIO SUPERIOR COURT, Dec 31/09: McHale v. Attorney General of Ontario [PDF]
  • Julian Fantino, April 07/07: Email to Haldimand Council [PDF]

ISSUES: 

  • Charge based on email to Haldimand Council threatening repercussions if they showed support for Gary McHale. Email falsely infers that McHale is engaged in criminal behaviour and is attempting to cause violence and create mischief. See resources below.
  • Order of Mandamus to overturn decision by Justice of the Peace not to grant process.
  • Charge issued by Justice of the Peace: Jan 08/10 w/summons to appear Feb 03/10.
  • Crown intervened to move date forward to Jan 15/10; neither Defendant or Lawyer appeared (summons not yet served)
  • Summons to appear served on Defendant: Jan 21/10
  • Next court appearance: Feb 03/10
  • CANACE case.

BACKGROUND/NOTES: 

On Dec 31/09 Justice Crane of the Superior Court of Ontario granted Gary McHale’s application for an Order of Mandamus compelling a Justice of the Peace to issue process for a Criminal Code charge of ‘Influencing Municipal Official’ against OPP Commissioner Julian Fantino. The ruling capped off a two and a half year battle to hold Mr. Fantino accountable for a threatening email he sent to Haldimand Council on April 07/07 intended to keep councillors from making positive comments about McHale. A summons a summons or a warrant for his arrest will be issued. 

Fantino’s email to Haldimand Council is only the tip of the iceberg in his campaign to try to silence non-native activists. In addition to the links below, see # 8 above. 

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C. Court Actions: Illegal Occupations & Land Claims

C1. City of Brantford v. Ruby Montour, Floyd Montour, HDI etc. ($110M re Brantford occupations, 2008)  

Plaintiff: THE CORPORATION OF THE CITY OF BRANTFORD

Defendant: RUBY MONTOUR, FLOYD MONTOUR, CLIVE GARLOW, CHARLIE GREEN, MARY GREEN, DAVID MARTIN, HAZEL HILL, AARON DETLOR, THE HAUDENOSAUNEE DEVELOPMENT INSTITUTED, JANE DOE, JOHN DOE AND PERSONS UNKNOWN 

DECISION: Before the Court

  • Ontario Superior Court, June 02/08: Injunction Endorsement [PDF, 8p]
  • Ontario Superior Court, May 20/08: Motion Record  [PDF,135p]
  • Joan Holmes, Jan 19/09 & Feb 02/09: Holmes Reports on the City of Brantford’s Injunction Motion [PDF, 38p] (review of land claim issues)

ISSUES: 

  • Economic damage caused by illegal occupations by native protesters.
  • Threats by native protesters against community safety – request for military assistance.
  • Intimidation, threats of violence, illegal blockades.

BACKGROUND/NOTES: 

  • On May 23/08, the City of Brantford submitted a document to the Superior Court of Ontario seeking $110M in damages and asking the Court to notify the Attorney general that “the services of the Canadian Forces are required in aid of the civil power because a disturbance of the peace or riot is occurring or is likely to occur;” (p4, item (b)). 
  • Independent researcher Joan Holmes (who testified at the Ipperwash Inquiry) conducted an exhaustive review of the history and evidence of Six Nations’ claims in Brantford for the City of Brantford injunction hearing against native protesters and came to this conclusion:

Conclusion

10. After reviewing the Johnston Response and the additional archival documents referred to and appended to this Supplemental Report, I maintain my opinion that the historical documents cited above dating from the 1840s indicate that the Six Nations Chiefs in Council expressed their intention to reserve particular lands for their exclusive use and surrendered the remainder for sale. As indicated in the report on the Council of 18 December 1844 and reiterated in the_petitions of 2 August 1845 and 18 February 1846, they agreed to surrender for sale the lands in the Martin and Johnson Settlements, the Oxbow tract, and the Eagle’s Nest tract, with the exception of a 200-acre block variously described as being in the vicinity of the Mohawk mission or school. 

Joan Holmes, Jan 19/09 & Feb 02/09: Holmes Reports on the City of Brantford’s Injunction Motion [PDF, 38p] (review of land claim issues)

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D. Court Actions: Caledonia Residents

D1. Caledonia Class Action lawsuit  (lawyer & Caledonia resident, John Findlay)  

PLAINTIFF: KRP ENTERPRISES INC. and 1643078 ONTARIO INC., KEVIN CLARK, ESTA CLARK, CHRISTINA ACCIACCAFERRO, JEFFREY ACCIACCAFERRO, STEVE TONG, LORI TONG, RUSSELL KAVANAGH, MICHELLE KAVANAGH, PAUL DURCEK, STEFANY DURCEK, QUINTIN CHAUSSE, DONNA CHAUSSE, ANNE MARIE VANSICKLE, JAMES PAUL VANSICKLE, J.P. WOOLLEY SURVEYING LTD. and MARGARET COOK 

DEFENDANT(S): ONTARIO PROVINCIAL POLICE COMMISSIONER GWEN M. BONIFACE, ONTARIO PROVINCIAL POLICE INSPECTOR BRIAN HAGGITH and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO 

Caledonia, 2006: Native militants burn tires in the middle of Argyle Street. Click image to see more photos from Caledonia.

ISSUES: Failure of police (OPP) to enforce rule of law during violent land claim dispute. 

DECISION: CERTIFICATION GRANTED FEB 08/10. WILL PROCEED TO TRIAL. 

DOCUMENTS: 

BACKGROUND/NOTES: 

The statement of claim filed by lawyer and Caledonia resident John Findlay is most enlightening as an aid to understanding how the town and its residents were affected by native extremists and their violence in the first few months of the occupation of the Douglas Creek Estates. 

Mr. Findlay also acts for several other related Caledonia lawsuits by residents (see Samuel & Sandra Gualtieri below) and activists, including Gary McHale and Mark Vandermaas. 

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D2. Brown-Chatwell v. R., – $7M lawsuit by Caledonia residents, Dave Brown & Dana Chatwell 

PLAINTIFF: 

DEFENDANT: 

DECISION: MID-TRIAL SETTLEMENT, Dec 29/09 

ISSUES: 

  • Failure of police (OPP) to enforce rule of law during violent land claim dispute.
  • Depositions from sr. OPP commanders re failure to enforce rule of law vs. native militants.
  • Extreme destruction of hydro station; Stirling Bridge.
  • Denial of police services; refusal to respond to 911 calls
  • Detachment commander ordered not to enforce law by superiors.
  • Political interference w/policing.
  • Minister signs agmt w/militants not to call in Cdn Forces.
  • Minister signs agmt not to prosecute militants who attacked police w/weapons.
  • Racial policing.
  • Threats, intimidation, kidnapping from driveway, false arrest
  • Destruction of home; blamed on Plaintiffs by OPP
  • Hidden video camera in home (Ontario Court of Justice transcript, McHale prelim hearing, April 24/09: OPP Officer Jeffrey Bird [PDF, 99 pages] (confirms race-based policing, hidden camera in Brown-Chatwell home)
  • Illegal road blockades, vehicle searches, theft of property.
  • Role of native organized crime group Mohawk Warriors.
  • VoiceofCanada, Dec 22/09: Brown-Chatwell trial: crimes against democracy
  • CaledoniaWakeUpCall.com feature: Brown/Chatwell Trial

BACKGROUND/NOTES: 

The Brown/Chatwell trial began in Nov 2009 with excellent daily media coverage and editorialization by the National Post, the Globe & Mail and by Gary McHale on behalf of Caledonia’s Regional News. The evidence to date (as of Dec 05/09) has included statements from senior OPP officers about the two standards of law enforcement in Caledonia, and testimony from both Dave Brown and Dana Chatwell about how they were terrorized by native militants and abandoned by the police. 

The Ontario government announced on Dec 29/09 that it had reached a settlement agreement with Dave Brown & Dana Chatwell – midtrial. 

Background  

Several weeks before the Ontario election in Ocober 2007, VoiceofCanada and CaledoniaWakeUpCall received copies of the Statement of Claim for a $7M lawsuit (media reports and the claim itself give the impression the amount was $12M) filed by Caledonia residents Dave Brown and Dana Chatwell with respect to their suffering at the hands of native extremists, the OPP, and Liberal cabinet ministers. 

The claim makes many shocking allegations: traumatic harassment by native occupiers of the Douglas Creek estates; false arrest of Brown for trespassing on his own property; deals by cabinet ministers with natives not to prosecute them for crimes, and not to call in the military to protect Caledonians from them; illegal surveillance inside the Brown/Chatwell home; refusal by OPP to respond to 911 calls; failure of OPP not to call 100 RCMP officers on standby at Hamilton Airport for assistance during the failed raid April 20/06; pressure by OPP to allow them to lay phony trespassing charges against non-native protesters using their property; etc. 

It is an eye-opening look at the effects of an illegal occupation on the lives of people who, through no fault of their own, have been forced to endure the consequences of native crime and intimidation without the full protection of the law. 

See also: 

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D3. Samuel & Sandra Gualtieri v. R. ($5M action re attack on Sam by native protesters, Sept 13/07)  

PLAINTIFF: SAMUEL AND SANDRA GUALTIERI 

DECISION: BEFORE THE COURT 

Caledonia builder Sam Gualtieri - attacked in a home he was building for his daughter during an illegal occupation by native protesters who beat him almost to death with a piece of oak stair rail, Sept 13/07.

ISSUES: Brain injury caused due to police (OPP) failure to remove illegal occupiers during violent land claim dispute. 

DOCUMENTS: 

BACKGROUND/NOTES: 

On Sept 13/08 Sam Gualtieri was viciously attacked by native protesters in a home he was building for his daughter at the Sterling Subdivision in Caledonia and suffered grievous injuries which left him with permanent brain damage. See photos in Sept 13/07 story below. 

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D4. Quintin (Bo) Chausse  

PLAINTIFF: QUINTON CHAUSSE 

DEFENDANT: (Government of Ontario/Her Majesty in Right of Ontario) 

ISSUES: False arrest while trying to place Canadian flag on public hydro pole near site of illegal occupation (Douglas Creek Estates. 

DECISION: SETTLED 

DOCUMENTS: 

BACKGROUND/NOTES: 

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E. Court Actions: Defamation of Non-Native Activists

E1. Vandermaas/McHale v. Fantino (Defamation) 

PLAINTIFF: MARK VANDERMAAS 

PLAINTIFF (Separate action): GARY MCHALE 

DEFENDANT: Julian Fantino – Commissioner, Ontario Provincial Police 

ISSUES: 

  • Defamation vs. non-native activists by OPP Commissioner Julian Fantino.
  • Long history of defamation and targeting for arrest (McHale) by commissioner.
  • CANACE case.

DECISION: BEFORE THE COURT 

DOCUMENTS: 

BACKGROUND/NOTES: 

OPP Commissioner Julian Fantino has made numerous false allegations against Gary McHale and his supporters since taking office. This action concerns statements made between Nov 2007 to April 2008 that McHale and/or Vandermaas are ‘involved’ in violence and have a ‘violent agenda.’ 

Other actions against Julian Fantino and Ontario Provincial Police Association President Karl Walsh for alleged defamation are before the Courts. Both Gary McHale and Mark Vandermaas are co-founders of CANACE (www.canace.ca). 

References 

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F. Court Actions: Human Rights Tribunal of Ontario

(To be uploaded) 

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G. Complaints: Police Services Act

G1. Vandermaas et al v. OPP Commissioner Fantino, 2008 

ISSUES: 

  • To: Hon. Rick Bartolucci, Minister of Community Safety & Correctional Svcs.
  • Ask RCMP to investigate 3 criminal allegations vs. OPP Commissioner Fantino.
  • 1. Obstruct Justice: interference w/investigation into Dec 01/07 smokeshack protest to detriment of non-native victims of native assaults.
  • 2. Influence Municipal Official: threatening email sent to Haldimand Council, April 07/07. (Charge issued: See B4. McHale v. Attorney General of Ontario, 2009)
  • 3. Breach of Trust: campaign to mislead public that non-native activists were violent/danger to public.

DECISION: DENIED 

DOCUMENTS: 

Evidence 

As you can tell from the correspondence Minister Bartolucci did not even ask for our supporting evidence. Had he done so and called in the RCMP as requested to investigate, the following evidence would have been discovered that supports virtually every statement in the complaint: 

  • Ontario Court of Justice: Exhibit 38- Fantino emails
  • Small Claims Court, Amended Statement of Claim, Feb 02/09 (Defamation): McHale/Vandermaas v. Fantino [PDF, 49 pages]
  • VoiceofCanada, May 02/09: McHale hearing: OPP offficer confirms existence of racial policing!
  • Transcript of Officer Jeffrey Bird testimony at McHale preliminary hearing available: Confirms racial policing practices of OPP. Testifies about Native man Clyde Powless calling for natives to take weapons from police officers on Dec 01/07. Confirms Brown-Chatwell claim re hidden video camera placed in their home by OPP w/out consent.
  • Transcript of Commissioner Fantino now available: Testifies about disappearing charge of Assault Police against Clyde Powless who led assault on McHale, Dec 01/07. Confirms OPP had no evidence to charge McHale with a crime prior to ordering his officers to target him for charges.
  • VoiceofCanada, April 26/09: ERT officer “alarmed” at lack of OPP resources for Dec 01/07 protest

BACKGROUND/NOTES: 

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H. Criminal Case vs Gary McHale

under construction 

H. R. v. McHale re: ‘Counselling Mischief Not Committed 

ACCUSED: GARY MCHALE 

CHARGE: Counselling Mischief Not Commited 

ARREST: Dec 01/07 

REASON FOR CHARGE: Gary McHale is conducting his own defence against a criminal charge of Counselling Mischief Not Committed arising out of a Dec 01/07 Caledonia smokeshop protest where he was viciously swarmed by Six Nations residents and sent to hospital after being jumped from behind by a native man Clyde Powless who led a swarming attack in which McHale was kicked and punched on the ground. CANACE co-founder Jeff Parkins was knocked to the ground and laid unconscious while native smokeshack supporters yelled, “Finish him off.” CANACE co-founder Mark Vandermaas was the first to be assaulted and knocked to the ground. The police refused to arrest his attackers. 

Although Clyde Powless was charged – and pleaded guilty to – assaulting McHale, he was not charged for assaulting police officers. In fact, not a single charge was laid against any of the Six Nations residents who assaulted OPP officers that day. The Crown, however, is vigorously pursuing McHale for a 14 second conversation in which he allegedly suggested to Doug Fleming – who already had blocked the road after a native man blocked it first – that he ask other Caledonia residents to help him block the road, which Doug did not do. 

Emails received (eventually) under disclosure rules show that OPP Commissioner Julian Fantino ordered his officers to target McHale for a charge before the investigation had even begun even though he would himself later testify that the OPP had never charged him with a crime because they had no evidence to do so. Contrary to the impression given to readers by the words of OPP Commissioner Julian Fantino in his various private and public communications that Mr. McHale has an agenda of inciting or committing or desiring violence, Mr. McHale has only been charged with one offence in relation to his activities in Caledonia – a non-violent offence that resulted in no additional offences; no inconvenience to motorists. 

Since November 2006, shortly after being appointed, Mr. Fantino has been engaged in a persistent campaign of using completely false statements in private and in public to attempt to destroy the reputation of Gary McHale  and target him for arrest. PLEASE READ THESE PDF REFERENCES FIRST: 

  • Police Services Act complaint, May 30/08: Vandermaas, et al vs. Fantino [PDF, 71 pages] [INFO/MORE DOCS]
  • Small Claims Court, Amended Statement of Claim, Feb 02/09 (Defamation): McHale/Vandermaas v. Fantino [PDF, 49 pages]
  • Ontario Court of Justice, Exhibit 38: Fantino emails, Dec 01-04/07 [PDF, 5 pages] [INFO] (orders targeting McHale for charges at outset of investigation; Fantino later testified OPP had no evidence prior to Dec 01/07 to charge him w/crime; transcript avail.)

 ISSUES: Criminal charge: ‘Counselling Mischief Not Committed’ re protest at illegal smokeshack, Dec 01/07 

DECISION: PRELIMINARY HEARING – SUSPENDED, AWAITING CERTIORI HEARING BEFORE SUPERIOR COURT RE ADMISSABILITY OF EVIDENCE WITHELD BY CROWN 

EVIDENCE: 

  • CaledoniaWakeUpCall.com feature: Gary McHale Preliminary Hearing – Court Documents [LINK] (exhibits & transcripts)

Fantino tells officers to get McHale before investigation begins 

Fantino emails between Dec 01-04/07 show that he ordered his officers to target McHale for charges before the investigation had even begun! Despite being a victim of the violence McHale was targeted for a dubious charge while the man who led the swarming attack – a native man Clyde Powless – received a letter of reference from Fantino to aid in his guilty plea for assaulting McHale. 

When ordering his officers to target McHale at the outset of the ‘investigation’ Fantino ordered his officers not to get ‘bogged down with legal nuances’ and to work around ‘timid’ and ‘feeble’ crown attorneys. Truth is much stranger than fiction. He actually told his officers that even if they couldn’t make the charges stick the effort would be worthwhile according to Fantino because they would be able to ‘expose’ McHale. 

Fantino testimony: OPP had not charged McHale w/crime prior to Dec 01/07 becaue they had NO evidence 

What is remarkable about Fantino’s vehement instructions to get McHale, Fantino’s own testimony reveals that the OPP had never charged McHale with a crime because they had no evidence to do so! 

  • Ontario Court of Justice transcript, Nov 26/08: Julian Fantino, OPP Commissioner (to be scanned)
  • Ontario Court of Justice transcript, April 22/09: Julian Fantino, OPP Commissioner (to be scanned)
  • OPP had no evidence prior to Dec 01/07 to lay charge against McHale.

Fantino Testimony: Reveals racial bias 

  • Intervenes to stop investigators from laying a charge of  ‘Assault Police’ against native man Clyde Powless.
  • Writes letter of reference for Clyde Powless for sentencing re: assault on Powless. Letter blames McHale for Powless’ assault on him; calls him ‘peacemaker.’
  • Photographed [DATE] sharing a joke with Clyde Powless – the man who assaulted McHale and his officers Dec 01/07.
  • Never makes derogatory comments in public about native protesters vs. non-native protesters
  • Meets w/native protesters. Does not meet with non-native protesters.

Det. Murray Testimony: 

Fantino isn’t the only OPP officer to falsely accuse McHale of inciting violence only to have his own testimony clear McHale. The arresting officer got caught by McHale on cross-examination during the bail hearing. 

  • Ontario Court of Justice transcript, Dec 14/07 (bail hearing): John Murray, OPP Detective
  • 2 OPP officers visited a native private detective in New York state named Jon Sabin. (The next day he began a defamation campaign to smear McHale as a white supremacist. Within weeks he had built a fake ‘neo-nazi’ website using McHale’s name. McHale complained to York Regional Police who investigated and identified true owner. [LINK]
  • McHale not violent.
  • McHale quotes Dr. Martin Luther King.
  • Cannot cite McHale rallies were not violent.
  • Mark Vandermaas not charged with assault.
  • McHale falsely accused of assault by native woman.
  • Negotiation ‘stakeholders’ approached OPP re McHale affecting negotiations.
  • Native extremists threatened to ‘escalate’ if something not done about McHale protests.

BACKGROUND/NOTES: 

McHale has elected a trial by jury. The preliminary hearing began in November 2008, resumed in April/May 2009 and again in Sept 2009. It has now been suspended while McHale asks the Superior Court to order the judge to admit key evidence which the Crown agrees should have been turned over with the original disclosure. The prelimary hearing has already taken a total of 17 days of court time when finished. The trial, if any, will be held sometime in 2010 and it is estimated to require approximately 3 months of court time for the jury. 

Judge: Why are you pursing this case? 

References 

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