Christie Blatchford: Judge rebukes police for putting ‘demands of occupiers’ over other Canadians

Source: National Post

More than 10 years after the oft-violent native occupation of the Douglas Creek Estates housing site began in Caledonia, Ont., a judge has given teeth to the claim that the Ontario Provincial Police engaged in “two-tiered” law enforcement that favoured occupiers over non-native residents.

“The OPP acted in accordance with a framework to put the demands of the occupiers ahead of the rights of other Canadian citizens,” Ontario Superior Court Judge Kim Carpenter-Gunn said in part last month.

Her decision was given orally from the bench on Sept. 22; Postmedia has obtained a transcript.

The case was a civil lawsuit against the OPP and six of its members filed by Randy Fleming, a 55-year-old retired steelworker and long-time resident of the picturesque small town south of Hamilton.

On May 24, 2009, Fleming had attempted to walk peacefully, carrying a Canadian flag, up the main Caledonia street to a so-called “flag rally,” the first time since the occupation had begun that the police were going to allow the maple leaf to be raised anywhere near Douglas Creek Estates — often referred to as DCE — lest the mere sight of it inflame the occupiers.

But as he approached the entrance to DCE, three OPP vans drove past him, turned around and then drove toward him, forcing him to clamber into a ditch and then up to the higher ground of the occupied site, whereupon he was forcibly taken to the ground by a half-dozen officers, his left elbow and nerves permanently injured, and then arrested.

The judge came down strongly on Fleming’s side — awarding him a total of almost $300,000 in general and special damages and legal costs, proclaiming him a credible witness who had handled both the chronic pain and simmering rage that were the residue of his arrest with stoic grace and finding the OPP had been “very heavy-handed” and that several officers were evasive or not believable in their evidence.

Carpenter-Gunn found that Fleming had done nothing wrong, let alone illegal, and that the police had breached his Charter and common-law rights “in order to appease certain unidentified Aboriginal individuals who may have been involved in the occupation of DCE.”

In the end, she said, the police falsely arrested and unlawfully imprisoned Fleming.

All he’d done, she said, “was to stand peacefully and alone with the Canadian flag, on a piece of public land in Canada, potentially angering a group of people (the occupiers) who were about 100 metres away.”

Ironically, the judge said, there were only 20 or so native occupiers at the main gate that day, and only about half of them even noticed Fleming’s approach and moved towards him. None of them was armed, and none carried weapons.

And though two officers testified that if “there was a threat of violence at all, it was coming from the occupiers,” the judge said unequivocally if the police hadn’t interfered with Fleming’s quiet walk, “he would simply have passed in front of DCE and moved onto the flag-raising event.”

In other words, she said, it was the conduct of the police in “driving directly” at Fleming that forced him to leave the shoulder of the road and “walk a few feet onto what may have been DCE land.”

If the decision was a tremendous personal victory for the tenacious Fleming and his lawyer Michael Bordin, it also offered in microcosm a vindication for many in Caledonia.

From the moment the occupation began on Feb. 28, 2006, when a handful of protesters from the nearby Six Nations reserve walked onto DCE, the OPP policed as they had never policed before: Occupiers broke the law, sometimes violently right under police noses, with arrests, when they were made, not made contemporaneously but weeks or months later.

Often, even in the face of egregious law-breaking, the OPP simply did nothing.

But non-native citizens who objected — or God forbid, took to the streets to protest the uneven treatment and their abandonment by the state — were treated by the OPP as instigators, and arrested, as Fleming was, for daring to assert their rights to freedom of speech and expression.

Roads were blocked, bridges and cars burned, the residents who lived on roads around DCE at one point actually issued “passports” by masked occupiers and forced to show them to enter their property. A Hydro One transformer station was vandalized and set on fire, knocking out power to almost 8,000 people in the area.

And when the OPP belatedly deigned to enforce a court order to remove the occupiers, they were driven off the site by a mob of natives, many armed with bats, axes, shovels and the like, with their tails between their legs.

It was an astonishing decimation of the rule of law that went on for years, with the OPP and Ontario government both denying the truth of what citizens saw daily with their own eyes.

Even Fleming’s arrest was a joke, with the OPP saying they’d arrested him to prevent a breach of the peace or because he’d breached the peace, but actually charging him with obstructing a police officer.

Fleming appeared in court 12 times to defend himself against the charge (those legal fees of almost $13,000 were part of the damages the judge awarded) only to see the Crown withdraw the charges 19 months later.

The flag rally on the day when Fleming was arrested was, he testified, a response to the fact that until that date, “no one had been allowed to put up a Canadian flag on Argyle Street,” though the flag of the Mohawk Warriors flew all that time on DCE.

The Canadian flag meant something to Fleming: He’d been told stories by his father and grandparents about the First and Second World Wars and, the judge found, he was “sincere regarding his respect for the flag.”

As Christine McHale, a veteran in Caledonia’s fight for fair policing, said this week, “At least Randy and the rest of our little group can hold our heads high, knowing we did the right thing.”