The chief of police should be fired

The editorial of The Toronto Star, one of Canada’s largest newspapers made a comment about the chief of the OPP (Ontario’s provincial police force) in its January 18th 2010 edition that bears further discussion. The editorial dealt with OPP commissioner, Gulian Fantino and the manner in which he dealt with a man who complained about the manner in which the OPP handled the native occupation in Caledonia, Ontario. The Indians in that area were claiming a certain area of Caledonia. Lawlessness surrounded the native occupation of the former Douglas Creek Estates in Caledonia and went on for many months. The estates was seized and occupied on Feb. 28, 2006 by protesters from the nearby Six Nations reserve.

Gary McHale, a private citizen brought a criminal charge against Fantino. Usually described as an ‘activist,’ McHale heads up a group called Canadian Advocates for Charter Equality, which is dedicated to the ‘restoration of the rule of law in Ontario.’ He is not a resident of Caledonia, but he had organized demonstrations in the community against the native occupation. Fantino and the OPP, who have been working hard to lower the temperature in the Caledonia conflict, did not appreciate McHale's efforts.

In 2007, Fantino emailed the local mayor and councillors to ask them not to egg McHale on. Further (get ready for this) Fantino also suggested that the OPP contract with the county would not be renewed if councillors continued to back McHale. The implied threat was perhaps ill-advised but the thinking behind Fantino’s email is understandable, given the pressures the OPP was getting from all sides in Caledonia. Unfortunately for Fantino, his threatening email message was a breach of section 122 of the Canadian Criminal Code, to wit; ‘Breach of Trust by Public Officer’.

According to Black’s Law Dictionary, a public officer is a person who upon being issued a commission, taking a required oath enters upon, for a fixed tenure, a position called an office where he or she exercises in his or her own right some of the attributes of a sovereign he or she serves for the benefit of the public. A police officer and police official is a public officer as are many other persons.

Section 122 of the Code states that every official who in connection with the duties of his office, commits fraud, or a breach of trust is guilty of an indictable offence (a felony in the U.S.) and liable for a term of imprisonment for a period not exceeding five years.

Blackmail is an offence and for a police chief whose force protects a community to threaten to withdraw his police force from the community unless the mayor or counsellors do as he says, is a breach of trust under section 122 of the Code. Fantino’s attempt to sway the mayor and town counsellors into his way of thinking with respect to the role McHale was playing in the crises was a breach of the standard of responsibility and conducted demanded of him by the nature of his office. In my opinion, the breach was sufficiently serious enough to move it from the realm of mere administrative error to one of criminality.

Imagine if you will a situation where a community hires a life guard to guard a pool where the children in the small community swim and the lifeguard tells the mayor that unless the mayor chastises another person who happens to be in the community, he will walk out of the pool and leave the children on their own. Such a person should be immediately fired and then tarred and feathered as he is transported out of the community on a rail.

The case was supposed to proceed last week, but it has been put over until next month to give the Crown more time to review evidence. Provincial NDP Leader Andrea Horwath, has said Fantino should step aside as OPP commissioner while the charge is before the courts. That would set a troublesome precedent not because he is a police officer but because he is the chief of the OPP. In the editorial of The Toronto Star, the rhetorical question is asked; “If McHale can force Fantino aside by laying a private charge in this case, then what is to stop anyone else who disagrees with the OPP from doing the same?”

Private citizens in Canada can lay charges against anyone in Canada but the office of the Crown Attorney reviews the charge and if it decides that the charge has merit, it will appoint an assistant crown attorney to take over the case. Many years ago, I personally charged a security guard of an apartment building in Toronto with interfering with a peace officer. (I was the peace officer by virtue of the fact that I was serving a civil process on the tenant) The attorney’s office told the judge that it had decided that I should act as the prosecutor as I was more qualified in this aspect of the law than an assistant crown attorney was. The judge disagreed. Since the case would go into the ash can if anyone unqualified to deal with that particular case handled it, I withdrew the charge. Later, I successfully argued my own case before the Ontario Court of Appeal and won it.

The editorial in the Star also said; “The Caledonia situation is most regrettable and has been dragged out for far too long (four years). But it won't be resolved by prosecuting Fantino or pushing him out of the commissioner's office. Rather, it will take good-faith bargaining on the land claims and related issues by both the federal and provincial governments and the Six Nations.”

I agree that the matter between the Indians and the community of Caledonia has gone on far too long and that good-faith bargaining on the land claims is paramount but I disagree that Fantino should be permitted to remain as the chief of the OPP. His breach of section 122 of the Code is simply far too serious to ignore.

In Canada, misfeasance in a public office, also known as abuse of public office, can be established in one of two ways: either through proof of malice with intent to injure, or through proof that the public officer intentionally engaged in acts that were ultra vires (in the face of it) the scope of his or office; and that from such actions he or she could foresee with a degree of certainty that harm would be caused to the plaintiff. It also goes without saying that in either instance, harm must result. Certainly harm was the end result in Fantino’s case because a threat that is taken seriously can be disturbing to anyone who becomes aware of it.

The OPP has a fiduciary relationship with the community of Caledonia. The community pays the OPP to serve the community by providing OPP officers to protect the community. This is done by contract. The essence of a fiduciary relationship is that one party pledges him, her or itself to act in the best interest of the other. The fiduciary relationship has trust, not self-interest, at its core, and when a breach occurs, the court favours the person wronged. In this particular case with respect to Fantino’s threat; the community has been wronged. A breaching fiduciary cannot benefit from its wrongful activity. A fiduciary owes a duty of utmost good faith, loyalty and selflessness. By threatening to withdraw the services of the OPP because community leaders refuse to follow the instructions of the police chief with respect to disavowing the actions of a civil rights person is not only criminal, it is outrageous.

Not only should Fantino step down as the chief of the OPP while waiting for his trial; if he is convicted, he should be promptly fired and if he appeals, his suspension should be without pay. To do otherwise is to bring shame upon the OPP and to set them up as a police force that should be given special consideration above all others.

NEW INFORMATION: On January 21, 2010, the OPP Commissioner was served with a summons to appear in court facing a charge of influencing or attempting to influence a municipal official.

UPDATE: Milan Rupic, chief counsel of the Justice Prosecutions Unit said, "Chief Fantino's email does not and cannot constitute an offence under the Criminal Code. Whatever the reaction of the councillors to the email may have been does not affect the underlying fact that in Canada it is not criminal if you tell someone that you might send them a bill for services."

The crown withdrew the charge. Obviously, the wrong charge was laid.