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Canwest News Service
The government of Ontario was accused of "trial by ambush" in the way it is defending a $7-million lawsuit filed by a Caledonia couple over the lack of law enforcement during an acrimonious native occupation.
Two boxes stuffed with Ontario Provincial Police reports and police officers' notes were delivered to lawyers representing David Brown and Dana Chatwell just before their lawsuit started in Ontario Superior Court, leaving little time for reviewing them, said their lawyer, John Evans.
"It's trial by ambush — we gave that up 20 years ago … It's coming out of the bushes," Mr. Evans complained to Justice Thomas Bielby, saying he had not had an opportunity to read it all or to discuss any of it with Mr. Brown.
"What they are being used for is to unsettle the witness. It's not fair," he said.
Mr. Evan's objection to the late disclosure came as Crown lawyer David Feliciant, who is cross-examining Mr. Brown over his testimony given last week, started reading from an OPP report about a meeting an officer had with Mr. Brown.
While the handwritten police notes were eventually allowed into the court record, Judge Bielby remained concerned about how long it took the government to turn over the reports and notes of the OPP officers involved in the dispute.
"I would like an explanation as to why these were released so late in the day … These should have been the first things to release," Justice Bielby told Mr. Feliciant, adding the explanation could come later as the issue could have more of an impact than just the admissibility of this one report.
Mr. Brown, 42, his wife, Dana Chatwell, 45, and their son, Dax Chatwell, 18, are suing the OPP and the province for failing to protect them or enforce the laws against native protesters around their home during the ongoing occupation of a 70-acre site that was under development as a residential subdivision.
The occupation, that began on Feb. 28, 2006, was to protest land-claim grievances by members of the nearby Six Nations band but it grew violent and fiery after the OPP tried to eject protesters on April 20, 2006, only to be pushed back by a growing throng of natives.
After that confrontation with police and retaking the site, native protesters erected roadblocks on the thoroughfare leading to it, trapping the Brown-Chatwell house, alone, on the native side of the barricade. Court heard earlier that OPP officers would not breach the native's barricade, even when witnessing criminal acts.
The barricades were taken down on May 23, 2006. Six weeks later, the province bought the land from the developer and has since allowed native protesters to occupy it.
Court heard a report of an OPP officer who met with Mr. Brown on a side road outside of Caledonia soon after the barricades were erected that referred to Mr. Brown as a "C. I." — police shorthand for a confidential informant — who wanted to sell officers videos of the native protesters.
According to the report, Mr. Brown told police that a native friend of his had stopped by his house at night and told him he had seen a rocket launcher among the protesters at the site.
The report said Mr. Brown also told officers that protesters had dug pits and covered them with landscaping paper and soil and that the protesters appeared to be stockpiling stuff in the garage of the model home that had already been built on the site before the occupation as part of the planned subdivision.
Mr. Brown described the situation as being "like Afghanistan or Vietnam," the police report said.
In the end, Mr. Brown agreed he would give the videos to police for nothing, even though a television station was offering to buy them, a police report said, although it is unclear whether the videos ever changed hands.
During often testy exchanges between Mr. Brown and Mr. Feliciant, Mr. Brown was also asked in court yesterday about his drug use during the occupation, including cocaine and ephedrine pills.
Mr. Brown said he turned to stimulants to help him keep alert during his nightly vigils when he stayed awake to watch over his home and his family since he felt police would not come to his aid for fear of upsetting the natives.
He said he took cocaine often enough "to know I had a problem" and has since stopped.
Under questioning, Mr. Brown said he had not sued his former employer for wrongful dismissal but then agreed he had done so when shown a copy of the lawsuit filed in small claims court.
"I probably don't recall half of what went on then," he said. "I don't think I was playing with a full deck."
He said he did not recall making offensive remarks about natives but was shown a report from his former employer stating that a supervisor reprimanded him for making "racial slurs" during a company social event that involved drinking.
The civil trial continues today with Mr. Brown still being questioned by Mr. Feliciant.
ahumphreys@nationalpost.com
