Facing numerous defence motions that would have laid bare police actions, the Crown dropped most charges Monday against an aboriginal protester who helped organize a blockade last summer of an Ontario highway and rail line, and agreed to a slap-on-the-wrist-penalty for the remaining ones.
Shawn Brant, a Mohawk from the Tyendinaga Territory near Desoronto, Ont., was facing nine counts of mischief and breach of bail conditions for his role in two demonstrations: the June 29, 2007, national day of action for aboriginal peoples and an earlier event in April 2007.
Both protests saw the temporary closing of the CN Rail line that carries Via Rail trains from Toronto to Ottawa and Montreal. The day of action also resulted in the shutdown, for several hours, of Highway 401 and Highway 2.
On Monday, as part of a deal with the defence, Brant walked free. The Crown dropped all but three of the mischief charges, on which Brant was found guilty.
Even though prosecutors had previously announced they would seek a jail sentence of 12 years, they agreed to have Brant receive a sentence of time already served in pretrial detention, plus a 90-day conditional sentence to be spent on his reserve.
Brant said outside court he accepted the deal for the sake of his family. It means the Ontario Provincial Police's "illegal actions" in handling the protests will remain secret, he said, though it will mean OPP Commissioner Julian Fantino will have to face questions about his conduct.
"Commissioner Fantino has always said he couldn't comment because it's before the courts. Well, now it's settled, and it's time the public hears from Mr. Fantino," Brant said.
OPP's 'broken promises'
Brant's lawyer Peter Rosenthal was preparing to argue in court in Belleville, Ont., on Monday that, in the case of the April 2007 demonstration, the OPP had agreed not to charge Brant if the blockade was lifted peacefully and promptly — which he says it was.
But police broke their promise, Rosenthal's defence motion said, at Fantino's insistence because of his "personal and political attitude towards Brant."
(In a wiretapped phone conversation, Fantino would later threaten Brant that "your whole world's going to come crashing down" because the OPP chief would "do everything I can within your community and everywhere to destroy your reputation.")
The motion to have the resulting charges dismissed argued that "the breaking of the OPP promise of immunity must be considered in the context of the long history of broken promises made by Canadian governments to First Nations peoples in Canada."
The defence also would have challenged the constitutionality of the Criminal Code's emergency wiretap provisions, which the OPP used during the national day of action for aboriginal peoples to bug the phones of Brant and his fellow organizers.
Section 184.4 of the Criminal Code authorizes wiretaps without a judicial warrant in "exceptional circumstances" – namely when the situation is too urgent to get a judge's permission and there is a threat of a crime causing serious harm to any person or to property.
But the OPP knew days ahead of time about the planned day of action protests, meaning there was no reason not to get a judge's approval beforehand for the phone surveillance, another defence motion said.
Tyendinaga Mohawk leaders are in talks with a federally appointed land claims negotiator to try to resolve their dispute over more than 400 hectares of land on the Bay of Quinte in Ontario – about 25 kilometres east of Belleville – including the site of a quarry and other businesses.
The Mohawk community has been negotiating with the federal government since 2003. Protesters are angry that gravel continues to be hauled off parts of the land while negotiations are ongoing. The protesters, who say talks are progressing too slowly, began an occupation of the quarry in March 2007.
In sentencing Brant on Monday, Judge Stephen Hunter said he understood the frustrations of the Tyendinaga community, which won a court ruling 11 years ago stating that its land had been illegally taken but hasn't seen progress on getting it back.
Before Monday, Brant had been free on $100,000 bail, amid tight conditions, since Aug. 31.