Crown buys Fantino's Silence with Brant's Freedom
Posted: September 29, 2008
CROWN BUYS FANTINO'S SILENCE WITH BRANT'S FREEDOM
- Statement from the Tyendinaga Support Committee
(Monday, September 29th, 2008) Today, in a Belleville court, a conviction
for three counts of mischief was entered against Mohawk spokesperson Shawn
Brant for his role in the CN rail line and Highway 401 blockades which took
place in April and June, 2007.
Brant has been ordered to stay on the Tyendinaga reserve for three months
and to be on probation for one year. Originally, the Crown had been asking
for 12 years in jail for Brant. While Shawn Brant will face no more jail
time for the blockades and will not go to trial, there are still 16 people
from the Tyendinaga facing criminal charges for defending their community.
The critical issues which prompted the Mohawks to take action have yet to be
addressed. Most of the community does not have drinkable water. Most
households have been unable to drink the water from their own taps for at
least the last decade. The reserve school, with 300+ students, ranging in
age from 2 to 13, who attend daily, has had its water deemed unfit for human
consumption for the past eighteen months. In addition, the lands
which comprise the Culbertson Tract and Simcoe Deed have yet to be returned.
This despite all levels of governments' admission that the lands do
legitimately belong to the Mohawks of Tyendinaga.
In Shawn Brant's case, the dramatic turn-around by government lawyers came
after disturbing details of OPP impropriety, abuse of practice and the
flaunting of policing guidelines created after the Ipperwash Inquiry were
made public in July of this year, following the lifting of a publication ban
on Brant's preliminary hearing.
Abuses revealed included OPP Commissioner Julian Fantino's threats to Shawn
Brant that "your whole world's going to come crashing down", the orders to
have snipers and armored personnel carriers on standby, and the presence of
an undercover police officer posing as a media cameraman. The preliminary
hearing also revealed that the OPP used an obscure section of the Criminal
Code to implement an emergency wiretap of Brant and other Mohawks' telephone
conversations, on June 28th, 2007, even though the National Day of Action
had been publicly planned for months.
The Crown went to great lengths to try to keep this critical information
from becoming known and was successful in keeping the material under a
publication ban for about a year. The release of these damning details
prompted calls for the firing of OPP Commissioner Julian Fantino. Pretrial
motions, originally set to begin today, would have seen Commissioner Fantino
*subpoenaed* to answer for his conduct leading up to and during the 2007
Aboriginal Day of Action.
Since the blockades of 2007, CUPE Ontario has passed a resolution in support
of the Mohawks of Tyendinaga, NDP MPP Peter Kormos has called for the firing
of OPP Chief Fantino and thousands of people have attended events, made
donations and signed petitions in support of the Mohawks and their demands.
Shawn Brant's arrest and the excessive prison sentence that the crown sought
against him were part of an attempt to destabilize the community of
Tyendinaga. However, the Mohawks of Tyendinaga remain united and continue
to fight for what should already be theirs: land and clean water.
The Tyendinaga Support Committee is a Toronto-based organization working to
support the Mohawks of Tyendinaga.
For more information, visit: www.ocap.ca/supporttmt or email us at
support.tmt@gmail.com
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For more information, please read the following article:
*IPPERWASH INQUIRY: LESSONS UNLEARNED:*
*THE OPP AND TYENDINAGA MOHAWK TERRITORY*
- Tyendinaga Support Committee
In April 2008, the Mohawk community of Tyendinaga was subjected to an
unacceptable escalation of police tactics, including the drawing of guns by
OPP officers on unarmed Mohawks. At the time, the OPP laid unfounded,
fear-mongering claims, saying they saw 'one long gun' at the quarry
reclamation site, a land reclamation that the Mohawks have been holding for
more than a year, as part of their struggle for the return of the Culbertson
Tract. The language of the alleged threat is not unfamiliar to Native
people in Ontario. In 1995 Stoney Point protester Dudley Charge was shot
and killed by the OPP during a land reclamation at Ipperwash provincial park
after an officer thought he saw him holding a "long gun," though the
protesters were in fact unarmed.
In 2006, the Ipperwash Inquiry found that the 1995 murder of Dudley George
was contributed to by centuries of discrimination and dispossession rooted
in racism. Justice Sidney Linden concluded that Ipperwash revealed a deep
schism in Canada's relationship with First Nations peoples and was symbolic
of a grievous history of destructive government policies. The Inquiry made
constructive findings and recommendations regarding policing, appalling
decision-making, the wrongful use of force against indigenous people, and
the racist demeanor of Ontario's then-Premier Mike Harris and the police.
Despite these findings, it appears that Ontario has opted for the
criminalization of First Nations people over the resolution of outstanding
land issues. Justice Linden's Ipperwash Inquiry policing recommendations
are being flaunted by the OPP, and in particular, by Chief Julian Fantino.
What lessons have really been learned in the 13 years since Dudley George
was killed? To what lengths are the authorities prepared to go in order to
quash indigenous resistance and sovereignty?
*Publication Ban lifted on the Preliminary Inquiry:*
On Juy 18th, 2008, the publication ban on Shawn Brant's preliminary hearing,
which took place in August 2007, was lifted in a Napanee Court, making
crucial evidence available to public scrutiny for the first time. That
afternoon, Crown prosecutors appeared before a judge of the Court of Appeal
in Toronto. No defence lawyers were present, as they had received only 6
minutes notice of this second, frantic court appearance. The Crown
successfully convinced the judge to issue a stay, on the grounds that the
ban was in the accused, Shawn Brant's, best interests. The media was ordered
to "immediately cease reporting on evidence heard at the preliminary inquiry
and remove all related reports from websites".
Then, at shortly after 5pm the same day, lawyers for the CBC and Mr. Brant
appeared before the same Appeals judge, along with Crown counsel. After
substantial submissions, the judge lifted her earlier stay and dismissed the
stay application altogether, ordering the publication ban lifted once more.
It is fairly rare for the prosecution to fight for a publication ban on
court proceedingswhen the defence is opposed to it. In Shawn's case, the
media coverage of the 2007 blockades and Shawn's role as spokesperson is
vast. The public record of Shawn's very public actions stands, and the
defence has no interest in suppressing evidence relating to the case. This
begs the question: why has the Crown been so persistent in fighting to keep
the preliminary hearing quiet? The evidence released after the publication
ban was lifted gives some insight into possible answers.
*Julian Fantino's Testimony: *
With the publication ban lifted, disturbing information emerged. The
evidence released included the testimony of Chief Fantino at Mr. Brant's
preliminary hearing. The public learned about the conduct of Commissioner
Fantino in relation to members of the Tyendinaga Mohawk Territory, including
his knowledge of wiretaps placed without the approval or oversight of a
judge, his apparent dismissal of the authority and importance of Aboriginal
OPP officers, the direct threats made to Mohawk spokesperson Shawn Brant,
and Mr. Fantino's utter disregard of the recommendations of Justice Linden's
Ipperwash Report.
Highlights of the evidence released include the following:
- In June 2007, the OPP imposed wiretaps on members of the Tyendinaga
Mohawk community without judicial authorization, using an emergency
section of the *Criminal Code*. The lead investigator in Mr. Brant's case
has acknowledged that the OPP was not necessarily going to disclose that
these taps had occurred. Mr. Brant's lawyers were informed of the
existence of the wiretap on his phone only on the Friday afternoon before
his preliminary hearing was to begin on the following Monday.
- Besides tapping the cell and home phone lines of Shawn Brant, the OPP
also tapped three other phones: two of Shawn's friends, Mario Baptiste Sr.
and Mario Baptiste Jr., and Shawn's brother, Gregory Brant, a prominent
local lawyer. The latter is particularly shocking, given Gregory Brant
has opposing political views from those of his brother and had no
association to or involvement in the blockades of June 29th, 2007. It is
not known whether the tap on his phone includes privileged
solicitor-client
conversations, which cannot be listened to by other parties.
- At Mr. Brant's preliminary hearing, Fantino said he'd never heard of
such a tap being used by the OPP and denied any knowledge of who had
decided to implement the tap. Furthermore, Fantino refused to look into
this question or provide defence counsel with further information about
the wire tap or policy related to its use.
- Fantino's wiretapped conversations with Shawn Brant on June 29, 2007
reveal him making numerous threats against Mr. Brant. Fantino said to Mr.
Brant, "your whole world's going to come crashing down" and threatened to
"do everything I can within your community and everywhere to destroy your
reputation". Police Chief Fantino is also quoted as saying, " I'm now
telling you pull the plug or you will suffer grave consequences."
- During his testimony at the preliminary inquiry, Fantino appears to
have perjured himself by admitting he knew of the existence of the wiretap
on Mr. Brant's phone, on or before June 29th, and then contradicted
himself, claiming he had no such knowledge until some time after June 29th.
- Fantino laid the groundwork to come down on the National Day of Action
blockade in Tyendinaga on June 29th with full force - a message sent to
the Mohawks through intermediaries indicated that tanks, the military,
snipers and SWAT teams were on standby to open Highway 401, despite
knowledge that the blockade was already scheduled to be taken down at the
end of June 29th.
"There were in fact plans underway at that time for a forced removal of
the blockade, weren't there?" Rosenthal asked him during his testimony.
"Yes, there was," Fantino replied.
- In his exchange with Mr. Brant, Fantino contradicted the OPP's
guidelines for dealing with aboriginal groups, which were developed in the
wake of the police killing of Dudley George. Disrespecting First Nations
OPP officers and disrespecting their role as negotiators, Fantino refers
to them at one point as "your (ie Shawn's) officers".
- Contrary to the recommendations of the Ipperwash report, and OPP
guidelines on policing aboriginal blockades, Fantino repeatedly showed no
cultural respect for Mohawk processes of decision-making, asserting that
Mr. Brant is "the man in charge" and can "pull the plug any time he wants
to".
Fantino refused to acknowledge or respect any process for reaching
consensus within the community, despite repeated attempts by Shawn to make
this clear during the taped conversations. In his testimony at the
preliminary inquiry, Fantino dismissed this process as a "stalling
tactic".
- Evidence also included that of an undercover officer who stated that he
posed as a media cameraman when he investigated the blockades of June 29,
2007, held as part of the First Nations National Day of Action. In its
application to lift the ban, counsel for the CBC asserted that he had
grave concerns about such activity by police officers.
*Ipperwash Recommendations Ignored:*
According to an OPP document drafted in the wake of the Ipperwash Inquiry
entitled *A Framework for Police Preparedness for Aboriginal Critical
Incidents*, local First Nations police must play a lead role in any police
response to First Nations protest. The document calls for building a
"trusting relationship" with "mutual respect" between the culture of First
Nations people and police, as well as a need for "special concerns" with
respect to aboriginal protests and blockades, given their historical
rights.
It also calls for "fostering trusting relationships between the OPP and
aboriginal communities" and for a "critical incident mediator" who, during
an incident, meets with aboriginal leaders to identify key issues and
interests and communicates those to the police commander at the incident.
It is also the mediator's responsibility to "develop in concert with the
incident commander, a mutually acceptable and lasting resolution strategy."
The evidence at the preliminary inquiry shows that this was indeed taking
place on June 29, in Tyendinaga. The Mohawks were communicating and
negotiating with members of the Aboriginal Liason Team.
However, the evidence also shows that Fantino repeatedly undercut such
involvement by interrupting negotiations between the people blockading the
401 and First Nations constables with threatening calls to Brant's
cellphone.
According to Shawn's lawyer, Peter Rosenthal, "The point is not simply that
a commissioner of the OPP should speak more appropriately. The concern is
that an OPP officer speaking like that in such a context could have derailed
negotiations entirely, leading to a horrible outcome. Luckily, Brant and
his colleagues continued negotiations with the First Nations officers to a
successful conclusion, in spite of Fantino's provocations."
At the preliminary inquiry, Fantino was confronted with several points from
the *Framework*. He was then asked by defence counsel: "I put it to you that
the document that we looked at and the concerns of the Ipperwash inquiry,
and many other concerns that you're aware of, have indicated that, in
situations like this, for the public good as well as for the respect of the
protestors involved, it's important to understand where they're coming from
and deal with their cultural values and so on."
Fantino responded: "There's nothing in the spirit, the intent, or the
written word in this document that justifies criminal conduct, or that
exonerates people from accountability from criminal conduct, or that it
[sic] absents me as a law enforcement officer from exercising discretion, or
using the authority bestowed upon me to effect a lawful purpose."
Fantino was then asked: "And doesn't, though, that document and many other
documents speak to the way you should do that in situations involving
aboriginal protestors?"
He replied: "These are guidelines and they're principles; they're not a firm
and fixed mandated way of doing business."
The Ipperwash recommendations were designed to avoid violence, regardless of
whether criminal charges will subsequently be laid. For Fantino to dismiss
the recommendations as mere "guidelines," given the grave consequences of
racist policing which prompted them in the first place, should be cause for
great alarm.
*Fantino and McGuinty Respond:*
A media storm followed the lifting of the publication ban. After
allegations that Fantino had violated the Ipperwash recommendations were
printed and broadcast in national newspapers and on national television and
radio, Fantino issued two statements In one, he stated, regarding lesson he
had learned from the controversy surrounding the OPP's handling of the
National Day of Action at Tyendinaga, that "as a law enforcement officer, I
happen to have all the right enemies". In another statement, Fantino said,
in part, "Consistent with the recommendations from the Ipperwash inquiry,
the OPP continues to work collectively with legitimate First Nations
leadership and communities to ensure that both the interests of participants
during lawful protests and public safety can be served in the best way
possible."
The Ipperwash recommendations were not about what the police would consider
to be "lawful protests," nor about working with what the police would
consider to be "legitimate First Nations leadership." The entire Ipperwash
report was designed to apply to incidents such as the reclamation of
Ipperwash Park and the blockades of June 29, 2007. It was designed to avoid
violence and the death of Native people standing up for their land. If
Fantino remains Chief of the OPP, how can we be certain that future
bloodshed will be avoided?
Fantino's conduct during these blockades was in contravention of both OPP
guidelines and the recommendations of the Ipperwash report. Above and beyond
this, his actions were threatening, unprofessional and discriminatory.
Following the public furor, which included NDP Justice Critic Peter Kormos'
call for Fantino to resign or be fired, Premier McGunity was quoted as
stating that Commissioner Fantino had "demonstrated tremendous discipline",
and that his position is "a tough job when people get really hot".
An OPP Commissioner must have the ability to conduct himself appropriately
in complex situations, an essential skill Fantino clearly lacked on June 29
th, 2007. But even two months later at Shawn Brant's preliminary
inquiry—not in a 'heated' situation—Fantino continued to demonstrate his
lack of commitment to implementing recommendations of the Ipperwash inquiry.
Fantino's public statements with respect to his conduct are an attempt to
obfuscate and distract from the issues at hand – namely, how First Nations
people are policed in this province.
It is important to note that in Justice Linden's 1,433-page report, the OPP
received the bulk of the criticism for actions leading up to the shooting,
including "the use of excessive force" and being "culturally insensitive''.
Fantino's conduct on June 29th, 2007 directly contravenes the
recommendations of Justice Linden, and sets an unacceptably dangerous and
disrespectful precedent for government and police response to First Nations
grievances.
The Premier's job should instead be to ensure that the Commissioner, a
political appointee whom the Liberal government quietly handed an extension
of term in early 2008, is thoroughly investigated, with a view to
resignation.
*What's Next:*
The current situation in Tyendinaga has begun to look like a sweeping
crack-down on community members and the stifling of resistance to increased
policing and further development of the Culbertson Tract. At the time of
writing, 16 men and women from Tyendinaga are facing charges stemming from
the OPP stand-off in April 2008, all saddled at minimum with conditions of
'no protests' and 'not to be present at the quarry site'.
At the same time, federal monies are being poured into the Territory for
policing matters, and an RCMP report has been released, citing federal
government intentions to dedicate police "to fighting contraband, which he
[Stockwell Day] said is funding organized crime and possibly even
terrorists" in three Mohawk communities, including Tyendinaga. It is
important to remember that the feds' concern with Native-made smokes and
sales go much deeper than their own pocket book. It is not simply the lost
tax revenue that they suffer, but the fact that the lost dollars go to
sustain Mohawk families and other services and allows for the Mohawk Nation
to stand, as it always has, as a clear and organized force of resistance
against the Canadian government's practices of assimilation and control of
First Nations peoples.
It is the efforts to strengthen Mohawk Nations' economies and sovereignty
that threatens the implementation of Canada's colonial agenda. The policing
agendas of the Canadian government aim to crack down on this assertion of
self-sufficiency and strength, not, as they claim, "organized crime".
In late July, Larry Hay, the former police chief of the Mohawk Tyendinaga
First Nation made public his efforts to take the Ontario Provincial Police
to court after being fired by OPP Commissioner Julian Fantino for speaking
out against racism in policing. "They've learned nothing from Ipperwash,"
said Hay, who is seeking a judicial review hoping a court will reinstate him
in the job. He is considering a wrongful dismissal suit if a judicial review
fails.
The community of Tyendinaga has, through working to re-establish a
longhouse, self-governance, and economic self-sufficiency, long been a thorn
in the side of the Canadian state, and its project of oppression and
genocide of First Nations peoples.
That the government lawyers looked to ask for twelve years prison time for
Shawn Brant is not about the blockades of last summer. It is about sending a
loud message to First Nations people who are not interested in submitting to
the exploitation of their lands and resources, nor the continued denigration
and suffering of their communities. This was a state response of fear and
concern that First Nations resistance will continue, and will succeed in
forcing the rest of this country's population to realize that long-standing
crimes against the Mohawk community of Tyendinaga, and all other First
Nations communities, must be righted.
support.tmt@gmail.com
http://www.ocap.ca/supporttmt/index.html