11th Hour Decision: Court of Appeal Throws Out Publication Ban Again

(Friday, July 18th, 2008) After a decision by a Napanee judge, rendered at 10:30 am this morning, lifting a publication ban on Tyendinaga Mohawk Shawn Brant's preliminary hearing, Crown attorneys attempted to have the effect of the decision stayed, but failed.

At midday, only Crown prosecutors (no defence lawyers) appeared before a judge of the Court of Appeal, and convinced the judge to issue a stay. 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, 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.

The appeal may go ahead in due course, but the media are at present free to publish all the evidence heard at the preliminary inquiry. As reported briefly today, this decision makes crucial evidence available to public scrutiny for the first time. The preliminary inquiry dealt with charges arising from Mr. Brant's participation in two highway and rail blockades held by Tyendinaga Mohawks in 2007 to pressure the government to resolve longstanding land claim and poverty-related grievances.

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 blockade which took place on June 29th, 2007, on the AFN's National Day of Action.

Defence counsel, Peter Rosenthal, will be available tomorrow to discuss the conduct of the Crown Attorneys, as well as to provide documents and transcripts relevant from the preliminary inquiry.

Lawyer for Shawn Brant incredulous after publication ban reinstated

Canadian Press
http://canadianpress.google.com/article/ALeqM5hsud0Xazix43twl-SkdGm8tV_L5Q

TORONTO — The lawyer for a protester at the centre of a court proceeding
stemming from the blockade of Highway 401 during last summer's aboriginal
day of action said Friday he was incredulous after Crown lawyers
successfully reinstated a publication ban on his client's preliminary
hearing.

Shawn Brant was arrested and charged with a variety of offences following
the incidents of June 29, 2007, when he and other First Nations protesters
blocked Canada's busiest highway as well as the CN Rail corridor between
Toronto and Montreal near Deseronto, Ont.

Brant's lawyer Peter Rosenthal called a news conference Friday in hopes of
adding to details that were made public earlier in the day when a judge in
Napanee, Ont., lifted a publication ban on his client's preliminary hearing.

However, the ban was reinstated later Friday when the Ontario Court of
Appeal granted a temporary stay of the decision to lift it.

"It's quite amazing, the lengths to which the Crown is going to stop the
public from finding out what happened at that preliminary inquiry,"
Rosenthal said.

Media outlets that had been carrying details previously covered by the ban
were forced to withdraw their coverage when it was reinstated by a judge
Friday afternoon.

Rosenthal said there was no indication in Napanee court that the Crown would
seek to delay the lifting of the publication ban.

He also said media outlets were informed before he was that the publication
ban was back on.

"One would have thought that if (the Crown) could notify the media of that,
they could have sent me a notice of that as well," he said.

Rosenthal said his client waived his right to a publication ban in the
hearing, but the Crown argued it was required for a fair trial.

"In my view there is no merit to any claim that it is protecting a fair
trial," Rosenthal said.

He went on to say it's obvious the Crown did not want details of the
preliminary hearing to be made public.

"The reason to suppress it is because they're concerned about what will come
out of the transcripts," Rosenthal said. "That's the only possible reason to
suppress it."
An official with Ontario's Ministry of the Attorney General said the
temporary stay is in effect until Wednesday, when the Appeal Court will hear
a full stay application from the Crown.

---------------------------------------------------------------------------

http://www.newswire.ca/en/releases/archive/July2008/18/c5993.html?view=print

*Attention News Editors: *
Media Advisory - R. v. Shawn Brant Publication Ban Reinstated

TORONTO, July 18 /CNW/ - Please be advised that the Ontario Court of
Appeal has this afternoon issued an order, which has the effect of
temporarily
reinstating the publication ban that was lifted earlier today in relation to
the preliminary inquiry held in the case of R. v. Shawn Brant. As a result of
this order the media should immediately cease reporting on evidence heard at
the preliminary inquiry and remove all related reports from websites.
This afternoon's Court of Appeal order temporarily stays a ruling made
earlier today in Napanee until Wednesday afternoon, July 23rd, at 4:00
p.m. so
that a full stay application can be heard by the Court of Appeal on this
matter.

For further information: Sheamus Murphy, Ministry of the Attorney
General, Minister's Office, (416) 326-1785; Brendan Crawley, Ministry of the
Attorney General, Communications Branch, (416) 326-2210
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Following the lifting of a publication ban this afternoon, we are now able
to publicize evidence that came out in court earlier this year about
wiretaps the OPP had on Shawn Brant's cellphone during the 2007 Day of
Action as well as phone conversations between OPP Commissioner Julian
Fantino and Shawn during the Day of Action. We will be posting transcripts
of these conversations and Fantino's testimony on our website shortly.
Below are some news articles that have come out this afternoon.

There is also a good CBC Video that can currently be downloaded at:
http://www.cbc.ca/clips/mov/seglins-2opp080718.mov and
http://www.cbc.ca/clips/rm-hi/seglins-2opp080718.rm

- Tyendinaga Support Committee

Ontario police almost moved in on 2007 Mohawk blockades
CBC News

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 Desoronto 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.
'I think we're running out of time, Shawn,' Fantino said

The documents include court transcripts of Rosenthal reading out statements
from the secret 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 secret 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.

Det.-Const. Douglas Weiss, the lead investigator in the case against Brant,
also couldn't say who in the OPP authorized the wiretaps. He also testified
at Brant's pre-trial hearing that he has to this date never heard them and
never asked for them to be included as evidence.

The OPP only decided that they would disclose the existence of the wiretaps
a week before the pre-trial hearing began, Weiss told the court.

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 lifted it
Friday in Napanee after a CBC News legal team argued for the right to
publish the material.

OPP almost used force to end native protest

Globe and Mail Update

July 18, 2008 at 2:17 PM EDT

Ontario Provincial Police came close to forcibly breaking up native blockade
on a stretch of Canada's busiest highway in eastern Ontario in June, 2007,
newly released court documents show.

Wiretap transcripts of a conversation between OPP Commissioner Julian
Fantino and Mohawk protest leader Shawn Brant in the early hours of June 29
were included in the documents released from Mr. Brant's preliminary hearing
in August, 2007.

In the conversation, Mr. Fantino is heard telling Mr. Brant 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 often heated conversation, Mr. Brant tells Mr. Fantino he needs
more time to negotiate with people at the blockade, who he says do not trust
police.

Documents show that Mr. Fantino gave Mr. Brant a deadline, and told him he
was ready to move in if the protesters did not lift the blockades on a
Highway 2 overpass over Highway 401.

Mr. Brant's lawyer Peter Rosenthal read out statements to the court:

"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."

Mr. Fantino told court he was concerned that the blockade would affect
thousands of people who used the busy highway and decided to negotiate with
Mr. Grant himself.

After several conversations throughout the night with Mr. Grant, Mr. Fantino
told court he said he was going to stop negotiating.

"... eventually I told him that I was no longer negotiating with him, that I
was now demanding and telling him that it was going to be finished."

The court transcript continues with a lawyer asking:

"There were, in fact, plans under way at that time for a forced removal of
the blockade, were there?"

"Uh, yes, there was. 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 transcript shows Mr. Fantino replying.

During the proceedings Mr. Grant's lawyers questioned Mr. Fantino about the
OPP code of conduct and the department's rules on dealing with native
issues, in particular, blockades and protests.

According to the transcript, the code included treating aboriginal groups
with respect, and Mr. Fantino was asked whether he was contradicting that
code in his discussions with Mr. Grant.

The code of conduct comes from recommendations stemming from the inquiry
into the 1995 shooting death of native protester Dudley George by police at
Ipperwash Provincial Park.

Documents suggest Ont. police planned to move in on 2007 native blockades

Canadian Press

TORONTO — Documents released today show Ontario Provincial Police were
minutes away from moving in on First Nations blockades on Highway 401 during
last year's aboriginal day of action.

The documents include wiretaps of conversations between OPP Commissioner
Julian Fantino and Mohawk protester Shawn Brant. The transcripts indicate
Fantino told Brant he would do "everything I can within your community and
everywhere else to destroy your reputation."

Fantino also told Brant "your world's going to come crashing down" during
the negotiations to end the tense standoff with police on June 29, 2007.

The heated exchanges between the two men seem to contradict the force's own
guidelines when dealing with aboriginal groups.

That code of conduct comes from recommendations stemming from the inquiry
into the 1995 shooting death of native protester Dudley George by police at
Ipperwash Provincial Park.
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