Posted on December 31, 2009

Caledonia Couple Settles Lawsuit Against Police, Government

Christie Blatchford, Globe and Mail (Toronto), December 31, 2009

The Ontario government suddenly has settled out of court with the Caledonia, Ont., couple who were suing Queen’s Park and the OPP for abandoning them to a lawless native occupation that began almost four years ago.

The surprise move came as the couple’s trial was slated to resume next Monday in a Hamilton courthouse before Mr. Justice Thomas Bielby of the Ontario Superior Court.

Among the remaining scheduled witnesses were a number of OPP officers, at least one of whom, The Globe and Mail has learned, was prepared to testify about the front line’s profound frustration with marching orders that saw “the law twisted” during the occupation.

Though it was never crystal clear at trial whether those orders originated with the Dalton McGuinty cabinet or the OPP brass, government lawyers acknowledged early on that normal policing, where officers conduct investigations and make arrests in a timely manner, didn’t happen during the occupation.

Rather, as government lawyer David Feliciant said in his opening statement, both Queen’s Park and the OPP were concerned that “provocative action” by the police could escalate the crisis, and relied instead on special guidelines for “aboriginal critical incidents.”

If the theory sounds ringing, as Judge Bielby heard, in practice the policy led to bald-faced two-tiered policing–strict, arguably over-enforcement of the law for non-natives, virtually none for natives–which infuriated Caledonia residents and emboldened the most lawless of the protesters.

That difference was best illustrated in two so-called flag protests last spring and summer.

In the first, organized by Caledonia residents who tried to march down the main street carrying a Canadian flag, the OPP stopped the protest and even arrested one man; in the second, six weeks later, the same police force provided a lights-flashing escort to native protesters who did precisely the same thing while carrying flags of the Mohawk Warriors.

Caught smack in the middle of what became a no-go zone for the OPP were Dave Brown and Dana Chatwell, then respectively a heavy-equipment operator and a hairdresser with a bustling salon in the lower level of their home.

Under terms of the deal, which was signed at noon Tuesday and announced by the government in a terse four-line news release the same day, the financial details remain confidential.

Mr. Brown and Ms. Chatwell had been suing the government and the OPP for a total of $7.5-million, and while the settlement isn’t believed to be in that range, it nonetheless marks the end of the couple’s unprecedented ordeal and left them nearly shuddering with relief.

“Yesterday was the best day of my life,” a giddy Mr. Brown told The Globe in a telephone interview from his Caledonia home, which is bordered on two sides by the occupied site once known as Douglas Creek Estates.

“Dana and I didn’t get rich on this,” he said, “but it was never about money. It was about us getting out of here and starting our life again. I’m so grateful for it.”

Mr. Brown and Ms. Chatwell, now respectively 42 and 46, aren’t wasting any time getting that fresh start.

Yesterday, they signed the papers for a new home–a $260,000 house in Caledonia–and are planning to be out of the old one before the Feb. 1 deadline stipulated by the agreement. Mr. Brown, who developed diabetes during the occupation, reported that his blood sugar has dropped dramatically and is almost normal.

The house on Argyle Street South in the lovely small town just south of Hamilton was Ms. Chatwell’s childhood home and once the repository of many of the couple’s dreams. It now holds so few good memories that Mr. Brown said they will rent a dumpster to dispose of much of the home’s contents.

“The shit we’ve seen out these windows and doors,” he said yesterday with trademark bluntness. “If I drive by this house ever again, it’ll be too soon.”

The occupation on the former DCE land began on Feb. 28, 2006, when protesters from the nearby Six Nations reserve took over the subdivision where 10 new homes were then under construction. The site is part of an unsettled Six Nations land claim.

When, almost two months later, the OPP moved onto the property in an early-morning raid to execute court injunctions against the occupation, as many as 1,000 protesters, including flag-waving supporters from the Warriors, poured into the area and, to cheers and hoots, drove the police off.

In the violent period which followed, natives threw up barricades to close several local roads, including Argyle Street South; burned the Stirling Street bridge to the ground and prevented fire trucks from fighting this fire and others; tossed a vehicle over an overpass; destroyed a hydro transformer, causing a blackout that lasted in some areas for two days, and terrorized both police and civilians who inadvertently wandered near the occupied land.

Mr. Brown and Ms. Chatwell lived beyond the Argyle Street barricade, and were forced to show an illegal, native-issued “passport” even to get to their home–usually under the noses of OPP stationed at a police barricade.

In the weeks that followed came the worst of what their lawyers, John Evans and Michael Bordine, called a campaign of intimidation that included repeated threats to burn the couple’s house down, illegal searches of their car and occasional theft of its contents, regular trespass onto their property, and the nightly shining of spotlights into their windows–much of this done by protesters wearing camouflage and face masks.

Even after the barricades came down six weeks later, shortly before Ontario bought out the DCE developer for about $12-million and allowed the natives to remain, the harassment and intimidation continued.

The cumulative strain of permanently living in a state of siege which no one in authority would declare or acknowledge took a terrible toll on Mr. Brown and Ms. Chatwell.

She lost her business overnight when no one would or could come to have their hair done, and now works in another salon; Mr. Brown, a formerly well-regarded employee, was fired after repeated absences and a new short fuse; they moved their teenage son Dax away during the barricade period and on several later occasions when tensions escalated. As Mr. Brown turned to drugs in order to stay awake, on guard, at night, and Ms. Chatwell began drinking heavily, their marriage deteriorated and family life as they had known it vanished.

Both testified at trial, Ms. Chatwell describing one night when they were so desperate, so alone, that Mr. Brown, weeping, was literally thumbing through phone books, looking for names of anyone who would listen to and help them.

While the news release says “the settlement was reached without any admission of liability by any party,” there is no doubt the lawsuit had become a growing source of embarrassment for the government and a potential source of political damage.

Sometimes, all that kept Mr. Brown and Ms. Chatwell from madness was what Mr. Bordine yesterday called “the hope the system holds out” for those who have no other hope. “It’s a wonderful thing,” Mr. Bordine said, and it is. In this case, though the trial didn’t go to completion, it nonetheless wrung a measure of justice from what the American philosopher Henry David Thoreau once called the half-witted state, “as timid as a lone woman with her silver spoons.”

[Editor’s Note: An earlier story on the plight of Dave Brown and Dana Chatwell can be read here.]