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 29th, 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.
