Nobody has a more sacred obligation to obey the law than those who make the law. -Sophocles
Criminal means once tolerated are soon preferred. -Edmund Burke
In Canada it’s against the law to block a railway or a public street or highway, (the latter being the crime of Intimidation), trespass on or blockade private property, commit theft, intentionally damage property, commit assault or disobey a court order.
But if you are an Aboriginal person and you do any of these things in Ontario in conjunction with anything remotely resembling a purported “land claim” or a claim for “aboriginal rights” (“aboriginal claims”) then you are the lucky beneficiary of the planned and deliberate policy of our Ontario Provincial Police (OPP), because of your Indian Status Card, not to hold you personally accountable for it. If you’re a non-aboriginal person in Ontario who does any of these things for any reason then, as you would expect from any act of lawbreaking, the full force of the law will quickly come down on your head.
The basis of this policy of applying the law racially unevenly is the OPP’s Framework For Police Preparedness For Aboriginal Critical Incidents. 1
In the Introduction to its Framework the OPP states this it is committed “to safeguarding the individual rights enshrined within Federal and Provincial laws, inclusive of those specifically respecting the rights of Aboriginal persons of Canada as set out in the Canadian Charter of Rights and Freedoms” and “to make every effort prior to a critical incident to understand the issues and to protect the rights of all involved parties throughout the cycle of conflict.”
This is legally incorrect. The Charter protects individual rights. Aboriginal rights per se are collective rights. Aboriginals are protected by the Charter, but only in their racially irrelevant capacity as individual Canadians, not as aboriginals. The Charter prohibits the uneven application of the law based on race. It is despite the Charter that the OPP has developed its Framework, relying on section 25 of the Constitution Act, which in substance exempts aboriginals from the operation of the Charter.
When an aboriginal is breaking the law, his rights in the “cycle of conflict” to continue his lawbreaking should be subservient to his duty and obligation to stop his illegal behaviour.
“Aboriginal Critical incident” is not defined in the Framework document, but it is clear from it that it means any conflict arising out of an aboriginal claim where some form of lawbreaking is imminent or in actual progress. At the trial of Fleming vs. Ontario, discussed below, the OPP defined it as “a major incident related to an occupation, protest and/or high risk incident occurring on a First Nation Territory or involving an Aboriginal Community member.”
The Framework states that its purposes of are threefold:
-provide a “sound, informed and flexible approach” to resolving conflicts involving aboriginal claims;
-offer a framework that “demonstrates accommodation and mutual respect of differences, positions and interests” arising in these conflicts;
-develop strategies that minimize the use of force.
During the commission of a crime there should be no “flexible” approach nor “accommodation” on the part of the police. Illegal behaviour is not entitled to be “respected”. Lawbreaking is inherently disrespectful and should invite a firm and unequivocal response in kind. A lawbreaker’s so-called “differences, positions and interests” might be of interest to a sentencing Judge but they should be of little professional interest to the police.
Our police are supposed to deter and stop lawbreaking, not, in the face of it, take on the political role of petty statesmen.
As a reading of the rest of the Framework shows, it relates almost entirely to the OPP appointing itself as a negotiator and mediator of any aboriginal critical incident, as if they were social workers, “healers” or marriage counsellors dealing with a fractious marriage, rather than acting as a police force, actively deterring lawbreaking and, in the event of actual lawbreaking, without fear or favour making quick arrests, detainments and then as quickly laying charges.
The Framework reflects the OPP’s improper belief that their primary objective in relation to aboriginal lawbreaking is “fostering trusting relationships…respect and understanding for each other” and “building respectful relations between police services and Aboriginal peoples and communities while honouring each one’s uniqueness and the Creators gifts with dignity and respect.” They appear to believe that, where aboriginal lawbreaking is imminent or actually happening, their primary role is that of “ensuring that all parties to the critical incident have the opportunity to contribute to strategies for resolution” and “the opportunity to compromise,” during which they, whenever possible, will “respect core cultural values.” (That is, alleged aboriginal core values, not non-aboriginal core values, one of which is the primacy of the racially indifferent rule of law.) If there’s an illegal road block the Framework says that rather than end it the police will “maintain the orderly flow of traffic while allowing participants to lawfully demonstrate; and where possible attempt to re-route traffic in order to avoid confrontation and minimize impact on the public.”
It’s not the OPP’s role to be concerned with the impact of “the Creators gifts” or alleged aboriginal “core values” on their role as law enforcement officers. Where aboriginal lawbreaking is imminent or actually happening the last thing they should be thinking of is “building respectful relations between police services and Aboriginal peoples.” They should be thinking solely of deterring or stopping the crime, protecting the innocent victims of it, and, if criminal behaviour occurred, making arrests and laying charges. Notably, the Framework does not mention any of that as an option.
The Framework tells would-be aboriginal lawbreakers that they have little to fear from the OPP when they plan or carry out their illegal business. The Framework encourages lawbreaking, rather than deterring it. It tells these lawbreakers that so long as they dress their lawbreaking up in a purported “land claim” or a claim for “aboriginal rights”, then however weak or specious those claims may be, their wrongful acts will be tolerated and appeased and, while they may be “managed” they will be allowed to go on uninterrupted and not subject to criminal charges.
The Framework warns non-aboriginal victims of such lawbreaking not to expect any real assistance from the OPP, which has turned out to be invariably the case.
The Framework’s enabling and appeasing nature was confirmed by OPP Commissioner Chris Lewis in an article he published in Blue Line, “Canada’s national law enforcement magazine”, in 2012. 2 There he wrote that when aboriginal protest activities over stalled land claims talks lead to aboriginal lawbreaking “the police service of jurisdiction is usually caught in the middle, trying to keep the peace and protect those in attendance.”
Are police “caught in the middle” when they bust up a drug deal or come upon a robbery in progress? No, they are official, law enforcement outsiders to the situation, there to stop the crime and arrest the perpetrators. It should be the same with aboriginal lawbreaking incidents.
Commissioner Lewis writes: “Clearly the underlying subtext to any aboriginal critical incident is a complex web of competing and sometimes contradictory rights. Sorting that out while keeping the peace is difficult for any police.”
This is fallacious and dangerous to the rule of law. There’s nothing for the police, in terms of “competing and sometimes contradictory rights”, to “sort out.” That’s not part of their job. That’s the job of others. The police must apply the law as written. They must presume the law, and the sovereign power of the government to make it, to be valid. Their power comes from the Government- the Crown- whose laws they swore to uphold and enforce. They are not to interpret the law. Their role is not to anticipate lawbreakers’ court defences and adjust their law enforcement policies accordingly. They are not to pre-judge cases. That “sorting out” is for Crown prosecutors and the Court to do, after the police unwaveringly lay all appropriate charges. The Framework wrongly presumes that the police should exercise prosecutor and judge-like discretion and powers. By doing they eschew their core law and order function and usurp the judicial function of the Court system.
Mr. Lewis provides a chilling example of this fallacy that the Framework represents. He wrote:
During the summer of 2010 a First Nations community in northwestern Ontario set up a blockade- a tollbooth- on a major highway to bring long-standing issues associated with the land to the forefront. They specifically chose a short section of highway where their outstanding treaty issues gave them some claim to ownership. While many inconvenienced drivers were adamant that the OPP remove or arrest the tollbooth operators, no government agency ever came forward to establish ownership of the highway and seek a court injunction to remove them. The OPP concentrated on traffic safety and policing behaviour at the stop until the dispute was settled. Some angry motorists interpreted this effort as assisting the perpetrators.
This was a major highway! The police must assume that the Crown has total ownership and control over it, which has been their operating assumption since Confederation and must continue to be so! No government agency should have to come forward to “establish ownership of the highway”, failing which the police are justified in not doing anything to keep it open. That is ridiculous. That the government is the sole owner and controller of our public highways must be regarded as an established, foundational fact. By accepting Mr. Lewis’ novel, Indigenous “colour of right” position the police are giving credence to the new, abstract, political notion, based on some current legal and political arguments, that the aboriginal land surrender treaties of the past were not surrender agreements but rather were “sharing” agreements, and that therefore Indigenous groups have some “ownership” of the highway. This directly undermines the OPP’s legal right to police our highways. On this dangerous logic no police officer should charge an indigenous person for speeding, dangerous driving, drunk driving, or for any other of the numerous regulatory and criminal charges that can arise out of illegal conduct on a public highway, because maybe the illegal conduct is occurring on Indigenous non-surrendered land. Maybe the Indigenous lawbreaker has a “colour of right” to break provincial or federal law on the highway, because the highway is partially “owned” by him. This is a recipe for the complete breakdown of the rule of law on our highways, and elsewhere, in relation to all types of aboriginal lawbreaking behaviour. This is a slavish surrender by the OPP of total Crown sovereignty over our highways, and over the absolute primacy of Crown laws generally.
Commissioner Lewis assures us that “Canadian court decisions have made it clear that a police officer cannot use discretion to favour an individual or group…” but that is exactly what he and the Framework do!
There is such a thing as proper police discretion in the laying of charges, but neither the statements of Mr. Lewis not his Framework represent that. They represent a pre-determined plan not to enforce the law in “aboriginal critical incidents”. They represent a pre-determined fettering of proper police discretion in relation to incidents involving aboriginal lawbreaking.
The Framework is not even legal! The OPP made it up on their own! So, without any legal basis the OPP is looking the other way in the face of aboriginal lawbreaking!
In the case of Fleming vs. Ontario, arising out of the illegal Indigenous road blockades and occupations in Caledonia, (discussed below), that have gone on for since 2006, the Supreme Court of Canada 3 said that the Framework “had no special status in law.” This had already been admitted at the Fleming trial by OPP Inspector Skinner who conceded in the witness box that “neither the policy defining what an “aboriginal critical incident” is nor the Framework itself have any special status at law.”
One wonders then what possesses the OPP to think that the non-legal Framework which they invented for themselves should take priority over the actual “full status” law that they are sworn to uphold and enforce. As the trial judge said in Fleming vs. Ontario:
“The rule of law is a fundamental principle of the Canadian Constitution. One crucial aspect of the rule of law is the principle that the exercise of all public power must find its ultimate source in a legal rule. Where police conduct interferes with the liberty or freedom of the individual that conduct will be lawful only if it is authorized by law.” 4
The Framework in its operation consistently takes the side of aboriginal lawbreakers over the side of members of the public and private property owners who are victimized by this lawbreaking behaviour. The Fleming case is instructive on this.
On May 24th, 2009 Mr. Randy Fleming of Caledonia was on his way to a “Flag Rally” led by a group called “Canadian Advocates for Charter Equality”. He was carrying a Canadian flag. The rally was to protest the ongoing occupation by aboriginal protestors of the Douglas Creek Estates property, now owned by the Crown. An internal OPP document, made an exhibit at trial, said that the event “was in response to an ongoing issue of occupiers flags flying on Argyle Street and the assertion of Two Tier Justice and Race based policing against the OPP”.
Suddenly Mr. Fleming was descended upon by six OPP Officers. They ordered him to drop the flag, which he refused to do. Four of these brave officers then tackled him to the ground (!) and pinned him there, causing him lasting personal injuries. Then they handcuffed him, arrested him, detained him at the police station for several hours, and then charged him with “resisting arrest” and “prevent breach of peace.” (The Crown withdrew all charges against Mr. Fleming 19 months later.)
At the time of this brutal takedown the nearest protestors were 100 metres away and there was nothing in the situation constituting either an actual or a threatened or imminent breach of the peace. Mr. Fleming properly sued the OPP for damages for false arrest, unlawful imprisonment, battery and for breach of his common law and Charter of Freedoms right to freely walk down a public street and for breach of his Charter right of freedom of expression. The OPP’s defence was essentially that they had made a pre-emptive arrest to avoid a breach of the peace that they considered might possibly occur, even though at the time of the brutal takedown there was nothing actual or imminent happening in that regard. The OPP were found fully liable at trial and ordered to pay substantial damages to the grievously wronged and brutally treated Mr. Fleming. In 2019 the Supreme Court of Canada fully upheld the trial judgement against the OPP, and all the trial judge’s damning findings of fact against the OPP.
The trial judge found that the OPP “knew of no legal basis for the (aboriginal) occupiers to exert control over the property.” That is, they had no legal rights to exclude others from the Douglas Creek Estates property.
The trial judge found that, notwithstanding this, the OPP “acted in accordance with the Framework to put the demands of the aboriginal occupiers ahead of the rights of other Canadian citizens.” The OPP “predetermined that certain common law and Charter rights could not be exercised by the (non-aboriginal) protestors”, including Mr. Fleming. They wrongly decided that hypothetical, merely conjectural “public safety interests were to be given priority over other rights such as freedom to walk down the street and freedom of expression.”
Confirming all of the above, the trial judge wrote:
“Inspector Skinner agreed that the Framework does not supercede the Canadian Charter of Rights and Freedoms, the statutes of Canada or Ontario or the common law rights of persons and does not absolve the OPP from carrying out its duties under statute and common law including duties to lay charges, prosecute crimes, interview witnesses and collect evidence. Inspector Skinner stated that the Framework was applied on May 24, 2009 on the basis that Aboriginal persons were present on DCE. He agreed in cross examination however that the occupiers were not forced to be present on May 24, 2009 and that they had chosen to become involved in a flag rally that was entirely lawful. Inspector Skinner testified that he received information from the Aboriginal Relations Team on DCE that tensions were rising and that he was required to take such information into account under the Framework in planning the OPP actions on May 24, 2009. Inspector Skinner agreed that even if the occupiers had conducted themselves in a manner that was unlawful by for example blockading the area of the Argyle Street the Framework would still have been applied and mediation and negotiation would have been attempted. He conceded there was no negotiation with Mr. Fleming. Inspector Skinner agreed in cross examination that the public had a legal right to free and uninhibited passage on highways in the normal course, that there is nothing illegal about people carrying flags down the street if they’re not impeding traffic and are peaceful…” (Emphasis added)
As to any perceived threat to public safety, one officer who testified at the trial said that “if there was a threat at all it was coming from the (aboriginal) occupiers”.
The Fleming case clearly and indisputably exposed the fact that, as demoralized Ontarians have seen with their own eyes over the past 15 years, and as the Flag Rally protestors were asserting, the OPP have indeed been flagrantly engaging in “two tier justice and race-based” policing, all biased in favour of aboriginal wrongdoers, with the Framework being their operational Bible for it. We should be greatful to Mr. Fleming for persisting in his 10 year legal ordeal to finally attain the justice he so well deserved, and to his lawyers, Michael Bordin and Jordan Diacur of Hamilton, for undertaking the herculean effort required to take on and succeed against “the establishment.” They represent the best of what lawyers can and should be in a free society based on the rule of law.
One would think that the OPP would have learned some lessons from the harsh criticisms they received from the Supreme Court of Canada of their illegal police conduct.
But no, zombie-like they carry on with it. And zombie-like the politicians support them.
At present the DCE lands are still occupied by a ragtag, motley crew of aboriginals with apparently nothing else to do with their time.
And now another residential development property on nearby lands being developed by Foxgate Developments is being illegally blockaded and occupied by self-described aboriginal “land defenders.” Foxgate got a court injunction in July, and then a permanent one in October, the latter ordering the illegal occupiers to leave the construction site, but except for making some mainly off-site arrests the OPP refuse to enforce it by forcibly ending the blockade and clearing out the illegal occupiers. Argyle Street is torn up. An excavator was stolen. A hydro pole was burned. A rail line is affected. The illegal occupation continues, while the OPP, clutching its Framework like a nervous lady clutching her handbag and pearls, continues being the police force that should have the motto of To Serve and Observe rather than To Serve and Protect.
In September, 2020 the Haldimand County Police Services Board, the overseer of municipal policing in Caledonia, called on the OPP to step up its enforcement of the court injunction.
In a presentation at its Wednesday meeting the board said the existing Framework for responding to “Indigenous critical incidents” fails to address the “lawlessness associated with the ongoing occupation at a Caledonia construction site by a group from Six Nations who say the residential development is part of unceded Haudenosaunee territory. Vice-chair Brian Haggith says the citizens of Caledonia want police to be more proactive in their enforcement. “Obviously the Framework doesn’t work”, said Haggith. “They used it in 2006 in Caledonia-it never worked. There was lawlessness and incidents going on where infrastructure was being destroyed by the protesters, and this has occurred again in 2020.” He said the document that the OPP is using in these situations needs to be revised. “And there should be a component in there to deal with when a protest goes from being peaceful to being lawless. And when that happens the OPP has to change tactics”.5
The Framework betrays the OPP’s own fundamental purpose and interests and betrays the high trust they owe to all the citizenry of Ontario. By deliberately failing to confront aboriginal lawlessness it sells out the interests of law-abiding citizens.
The effect of this on society as a whole- a massive loss of respect on the part of ordinary Canadians for the police and for government authority generally- is very serious and negative. “One law for them and one law for us”, people say. This reasonable and natural sentiment, caused not by illegal aboriginal behaviour, but by the shocking failure on the part of the police to apply and enforce the law in response to it, represents a very serious breach and breakdown of social trust, the glue that holds civil society together.
The lesson for ordinary Canadians is that now, with regard to aboriginal lawbreaking, justice is not blind. She peeks under her blindfold and if she sees that the commotion relates to aboriginals pursuing some form of merely alleged “aboriginal rights” she takes out and applies her special aboriginals-only rule book, in Ontario’s case the Framework, essentially does nothing but “manage” the ongoing lawbreaking, and then, turning to the non-aboriginal victims involved, just shrugs.
This is demoralizing to the body politic. It encourages civic anger and resentment, cynicism, apathy and disengagement. It subverts what should be the lawful authorities of the state’s greatest resource: the internalized allegiance of the citizenry.
We all must respect the rule of law, especially the police. Once that respect is lost, chaos will happen.
November 20, 2020
- Framework For Police Preparedness For Aboriginal Critical Incidents.
- 2019 SCC 45 (CanLII)
- Ontario Superior Court of Justice No. 11-26190 dated September 22, 2016, Justice Kim Carpenter Gunn
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