Ontario police almost moved in on 2007 Mohawk blockades

Newly released court documents show OPP were minutes away from trying to forcibly remove a First Nations blockade that closed Highway 401 during last summer's aboriginal day of action.

Newly released court documents show Ontario Provincial Police were just minutes away from moving in to forcibly remove a First Nations blockade that prompted the closure of Highway 401 during last summer's aboriginal day of action.

The documents include wiretap transcripts that feature OPP Commissioner Julian Fantino telling Mohawk protest leader Shawn Brant in a telephone conversation that, "your whole world’s going to come crashing down" and threatening to "do everything I can within your community and everywhere to destroy your reputation" during the tense standoff between police and aboriginal protesters at blockade sites in eastern Ontario.

The at-times heated comments by the province's top police officer fly in the face of the police force's own conduct guidelines in discussions with aboriginal groups that were recommended in the wake of the police killing of Dudley George at Ipperwash Provincial Park in 1995, Brant's lawyer said.

The court documents, released Friday after being freed from a publication ban, are transcripts from Fantino's testimony in August 2007 at Brant's preliminary hearing in a Napanee, Ont., court. Preliminary hearings are held to determine if there is enough evidence to warrant a trial.

Brant is charged with nine counts, including mischief, stemming from the First Nations blockades on Highway 401, Highway 2 and a CN Rail line near the eastern Ontario town of Deseronto on June 29, 2007, which prompted provincial police to close Canada's busiest highway and CN to suspend all rail service on the Montreal-Toronto corridor.

Lawyer calls for provincial review of Fantino's conduct

Brant's defence lawyer, Peter Rosenthal has called on the province to launch a review of the statements and actions of Fantino, who personally came to Napanee at the time of the standoff despite regular contact between protesters and other OPP officers.

Fantino testified at the preliminary hearing that he gave Brant a deadline, and was prepared to move in if the protesters didn't lift the blockades. He said he believed the public interest demanded that the highway be reopened.

"There were in fact plans underway at that time for a forced removal of the blockade, were there?" Rosenthal asked him during his testimony.

"Yes, there was," Fantino replied. "There comes a time when the balance of the greater public good shifts, and the feeling was that under the circumstances, this situation could no longer continue, and we were, in fact, preparing to move on the blockades."

The raid ultimately did not happen, and protesters removed the blockades peacefully later in the day. But the closures snarled traffic and brought commercial rail traffic to a standstill for several hours on a day that featured peaceful protests across the country.

The documents include court transcripts of Rosenthal reading out statements from the police wiretaps of at least three conversations between Fantino and Brant in the early hours of June 29 about removing the barriers.

Rosenthal quoted Fantino as saying: "I think we’re running out of time, Shawn. You know, we’ve been back and forth all night on this, and we’ve got a lot of very angry people who are absolutely beyond themselves with what’s going on, and, you know, we just have to close shop here, and we can’t go on any longer to be honest with you."

Brant is quoted as replying that he needed to speak with several members of the group in order to reach "consensus" on ending the blockade.

"Sometimes the wheels turn slowly, but, you know, it’s important that, you know, we came in here on a consensus and we need to resolve this on a consensus," he is quoted as saying.

Fantino then told Rosenthal he believed that was a "stalling tactic" and that Brant had full control over the protesters.

Rosenthal also brought up the provincial police document titled A Framework for Police Preparedness for Aboriginal Critical Incidents, which was created after the Ipperwash affair.

The document calls for building a "trusting relationship" with "mutual respect" between the culture of aboriginals and police, as well as a need for "special concerns" with respect to aboriginal protests and blockades, given their historical rights.

"And doesn’t, though, that document and many other documents speak to the way you should do that in situations involving aboriginal protesters?" Rosenthal asked.

"Mr. Rosenthal, these are guidelines and they’re principles," Fantino replied. "They’re not a firm and fixed mandated way of doing business."

Police wiretapped calls without judicial approval

The legality of the wiretaps was called into question by Brant's lawyer during his pre-trial hearing, as police did not receive judicial approval for the recordings. Police have said the recordings were legal, citing a little-known emergency provision in the Criminal Code of "interception in exceptional circumstances."

But Brant's lawyer said the police's use of wiretapping in the case was "outrageous."

"How often are the OPP using wiretaps without a judge's permission in the province?" Rosenthal told CBC News in an interview outside the courtroom.

Fantino testified that he was aware the conversations with Brant were being recorded, but said he had no role in the decision to wiretap the calls.

In Canada, proceedings from preliminary hearings are usually protected by publication bans in order to protect the accused person's right to a fair trial, especially when the case might later go before a jury.

However, Brant, whose trial is scheduled to begin in January, waived his right to a publication ban in this case, saying he wanted the testimony from the preliminary hearing to be made public.

The judge imposed a ban anyway, after the Crown requested one, but a different judge lifted it Friday in Napanee after a CBC News legal team argued for the right to publish the material. On Friday afternoon, the Crown won a stay on the order lifting the publication ban, reinstationg the publication ban.

But Friday evening, after a legal challenge by CBC News, the publication ban was lifted again.