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article imageMcHale: Ontario's Crown Attorney overstepped by dropping charge Special

By Stephanie Dearing     Feb 4, 2010 in Crime
Hamilton - OPP Commissioner Julian Fantino was to appear in court Wednesday to face a criminal charge made against him by Gary McHale. The Crown representative who handled the case for the province dropped the charge.
Julian Fantino did not show up for court on Wednesday morning. McHale, Fantino's nemesis over policing during the Caledonia land crisis, which took place in 2006 and 2007, had used private prosecution under Canada's Criminal Code to lay the charge. Ontario Superior Court's Justice Crane agreed with McHale after an appeal, and Fantino was summoned to court to face the criminal charge of influencing or attempting to influence municipal politicians.
At the hearing Feb. 3, the Crown advised the court there was no reasonable hope of getting a conviction on the charge, and the charge was withdrawn. McHale, reached by telephone Wednesday evening from his Binbrook, Ont. home, said "Justice Crane already ruled [Fantino's email] is a threat. The Crown cannot make the decision about that. They can decide about evidence, but the Crown stepped beyond his authority today by overruling what Justice Crane said."
In 2007, Fantino instructed Haldimand County Councillors to not support McHale, couching the demand in terms of preserving the peace in Caledonia. The email clearly states "... in the event any of my officers are injured as a result of further forays into the community by McHale and his followers my position in response will be the following:
1) I will publicly hold accountable Councillor Grice AND Haldimand County along with McHale;
2) I will support any injured officer in the pursuit of civil redress;
3) I will forward the ensuing related costs of policing to Haldimand County, and
4) I will strongly recommend to my Minister that the OPP contract with Haldimand County NOT be renewed once the current contract expires."
Crown representative Milan Rupic said in court Wednesday that Fantino's email was not a threat, and added "The Crown does not permit prosecutions to proceed unless there is a reasonable prospect of conviction."
Pointing out that the Crown had already conceded in court that the email constituted a threat, McHale said "They can't have it both ways." McHale pointed out that Haldimand Council Mayor, Marie Trainer, had gone on record more than once, saying the email was threatening. The National Post reported this in 2007.
Asked if he was surprised that the Crown had dropped the charge against Fantino, McHale said "I've been saying for two weeks that the Attorney General was going to drop the charge against Fantino. It's just unacceptable. It's a clear conflict of interest. The Attorney General did not want the charge in the first place, and he should have done the right thing and brought in a prosecutor from another province."
Ontario's Attorney General stepped in after Justice Crane issued a warrant for the criminal charge against Fantino. The Crown said that it was obligated by law to handle the case. McHale asked for an outside prosecutor for the case, but his request was refused.
On Wednesday Tim Hudak, the Ontario Conservative Party leader spoke to the media about the case. "The province’s Crowns first argued that the charge should not be laid, and when contradicted by a judge, took over the prosecution and then dropped the charge. An independent prosecutor from outside Ontario should have been brought in to go over the case. Otherwise, quite frankly, we’re going to wonder why he’s had Crown attorneys arguing on both sides of this case. We need objectivity.”
McHale used a little-known aspect of common law (now written in the Criminal Code) to bring the criminal charge against Julian Fantino. The law allows for private citizens to lay charges should a citizen believe there is sufficient evidence for the charge.
McHale said he would be filing three judiciary reviews, requesting Ontario's Superior Court to review the case.
The first review was filed before the Crowd stayed the charge. It questioned the Crown has authority to intervene on private contribution. The second review concerns the lower court losing jurisdiction after a high court files appropriate paperwork. This review goes up against Justice McDonald for exceeding his authority.
The third review looks at how the Crown was wrong for withdrawing the charge, and am looking for the Superior Court to reinstate the charge.
He anticipated the first review might take place as early as March and a decision issued by the summer, but he said he had another review that will be heard on April 1, saying "If the judge agrees, everything that happened today will be thrown out."
The second review will be heard March 9. The third review doesn't have a court date yet because McHale has yet to file the paperwork for it.
Canadian law states "... Although peace officers and Crown attorneys have special responsibilities and powers in the criminal justice system, the Crown does not have a monopoly on enforcing the law ..."
McHale has been a thorn in the side of the OPP over the Caledonia land crisis through his attempts to hold the police accountable for their actions. McHale has consistently said that the OPP were engaged in "race-based policing."
A recently settled court case saw the OPP concede it failed to protect one family during the land crisis.
More about Gary mchale, Julian fantino, Criminal charges, Caledonia, Land crisis
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