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The fire continues to burn

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Julian Fantino still criticized for his actions

TORONTO - Ontario Police Commissioner Julian Fantino is fighting off criticism that he ignored protocols adopted during the Ipperwash inquiry when he threatened Mohawk activist Shawn Brant a year ago during a one-day blockade of the province's main highway and a busy railway line.

''These are guidelines and they're principles; they're not a firm and fixed mandated way of doing business,'' Fantino said of an Ontario Provincial Police protocol presented at the Ipperwash inquiry in 2006 as evidence that the force had learned from its mistakes in the 1995 police shooting death of Dudley George.

The Framework for Police Preparedness for Aboriginal Critical Incidents calls for ''mutual respect'' between aboriginals and police and ''special concern'' for the historic background underpinning aboriginal protests and blockades.

Fantino has come under fire following the release of evidence in the preliminary hearing last August into charges of mischief and breach of bail conditions that Brant faces for his part in the protest on the June 29 day of action.

Publication bans are usually imposed at preliminary hearings, held to determine whether there's enough evidence to proceed to trial, to protect the accused's right to a fair trial. In this case, Brant wanted the evidence reported but the Crown fought to keep it under wraps. Media lawyers persuaded a judge to lift the ban July 18.

Transcripts of three telephone conversations between the two men show an aggressive Fantino threatening Brant that unless the blockade is lifted, ''you're gonna force me to do everything I can within your community and everywhere else to destroy your reputation,'' and warned him to ''pull the plug or you will suffer grave consequences.''

''Grave consequences'' meant the use of potentially lethal force, with a police tactical response unit that included snipers on hand and ready to be deployed, said Brant's lawyer, Peter Rosenthal, whose cross-examination of Fantino last August was also made public with the lifting of the ban.

The blockade ended peacefully after 11 hours, due in part to the efforts of two aboriginal OPP officers who were negotiating with Brant in accordance with post-Ipperwash protocols.

The peaceful resolution was no thanks to Fantino, Brant told a media conference at the Ontario Legislature July 22. ''It only became a potential violent situation because of the actions of Mr. Fantino.''

Fantino was not available for comment but issued a statement July 21 insisting that his actions were consistent with the recommendations of Ipperwash Commissioner Sidney Linden, whose report was released in May 2007, a month before the day of action.

''The OPP continues to work collectively with legitimate First Nations leadership and communities to ensure that both the interests of participants during lawful protests and public safety can be served in the best way possible,'' Fantino said.

Fantino's use of the words ''legitimate'' and ''lawful'' signals a poor understanding of the issues at Ipperwash. Just as the direct-action tactics of Brant and a group of Mohawks from Tyendinaga were disowned by the local band council and the mainstream Assembly of First Nations leaders who had organized the day of action, so too were George and his group of ''Stoney Pointers'' opposed by the Chippewas of Kettle and Stony Point First Nation when the protesters occupied Ipperwash Provincial Park in 1995.

It is precisely unlawful protests like blockades and occupations that both the Ipperwash recommendations and the OPP's ''framework'' protocol address.

Another interesting issue that's raised by the Fantino-Brant transcripts is Fantino's expressed willingness to bend the truth and manipulate the media.

''You know, if you pull this off, I'm liable to say that your issues are critical and they're important and I'll speak to that,'' he tells Brant.

''But if you don't, then I'm gonna go the other way and I'm gonna say that you're just destroying and you're abusing, you're using the people and you're actually being a mercenary about it, using the suicide of children and all those legitimate issues - and you don't want that because I think I can play the media routine like you do.''

Brant, a muted presence for most of the conversations, at this point protests. ''Hey, Mr. Fantino,'' he says. ''I put two of my own babies in the ground. This isn't an issue that doesn't concern me and affect me deeply.''

Critics are calling for Fantino's resignation, but Premier Dalton McGuinty has stood firm in his support of the commissioner.

Now, however, the force has come under wider attack for another issue that has surfaced with the publication of the Brant evidence. It turns out that the OPP used an obscure provision of the criminal code that, in an emergency, allows them to wiretap phones without going before a judge.

Police had 24-hour wiretaps on Brant, his brother Gregory (a defense lawyer who has no involvement in Brant's protest activities) and two friends, Mario Baptiste Sr. and Jr.

This was a misuse of the legislation, Rosenthal said, because there was no emergency - Brant's plan to blockade the highway and railway line was well-known in advance of the day of action and there was ample time to get a court order.

The matter has been picked up by police watchdog groups like the Toronto Police Accountability Coalition.

''I'm very concerned that the police decided to take the law into their own hands here,'' said spokeman John Sewell. Of particular concern was that police were wiretapping a lawyer, he added. ''Of course, lawyer and client relationships are protected and this is one of the reasons you should be going to a judge.''

Sewell called for an inquiry to determine how the wiretap decision was made and how often such actions are taken.

''Is this normal standard police procedure? We don't know. It would be nice to find out.''

Fantino denied on the stand having ordered the wiretap against Brant but said he knew about it on the day of the protest.

An OPP spokesperson said there would be no comment on the wiretap issue, as the matter is before the courts.

Brant could face 12 years in jail. He is to stand trial in January.