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A member of the Six Nations Native reserve mans a roadblock outside a housing development in Caledonia, Ont., in 2006. (J.P. MOCZULSKI)
A member of the Six Nations Native reserve mans a roadblock outside a housing development in Caledonia, Ont., in 2006. (J.P. MOCZULSKI)

A couple terrorized in a 'war zone' while police stood by Add to ...

cblatchford@globeandmail.com

John Evans is an amiable charmer who calls himself a simple country lawyer, but no one could have done a better job than he did here yesterday of describing the horror show that was visited upon an ordinary Canadian couple with the blessing of the state.

Mr. Evans was making his opening statement before Ontario Superior Court Justice Thomas Bielby in the lawsuit of his clients, Dave Brown and Dana Chatwell, against the Ontario government and the Ontario Provincial Police.

The couple is suing the province and the police for $5-million - another $2-million in special damages - for abandoning them and Ms. Chatwell's teenage son to what Mr. Evans called "a lawless world they don't recognize" in the notorious native takeover of land in Caledonia, Ont.

Mr. Brown and Ms. Chatwell own a house on Argyle Street South in the pretty small town south of Hamilton and just east of the Six Nations reserve.

Their home is inside the boundaries of a development that was part of a land claim, and which, on Feb. 28, 2006, was seized and ever after occupied by protesters from the reserve and at some points joined by members of the Mohawk Warriors, a group described by a senior OPP officer as usually armed, with a reputation akin to the Hell's Angels.

What happened to the couple over the course of almost the next four years is unprecedented in this country, Mr. Evans said, "a circumstance for which we have virtually no paradigm, no experience in Canada.

"Canadians live in a society with expectations that the police will protect them from threats, from vandalism, from intimidation," he told the judge.

"The Canadian citizen has and is entitled to have expectations of fundamental certainties. Canadians expect to be safe from repeated unlawful conduct."

But what his clients experienced, Mr. Evans said, was repeated and ongoing intimidation, night after night, by natives "acting in a lawless way and often wearing fatigues, camouflage and then face masks, bandanas and balaclavas" - much of the time watched over by OPP officers who "would not come within several hundred feet" of the Brown-Chatwell house and whose hands-off policy allowed the occupied land to be turned into a no-go zone, where protesters who had broken the law could always flee knowing they were utterly safe from police pursuit.

The couple "has lived for over three and a half years in a situation akin to a war zone," Mr. Evans said, "where fear of injury, of unknown and unpredictable attacks prevail. The law has not been enforced."

And senior OPP officers, Mr. Evans said, in their testimony at a pretrial process called discovery, "essentially acknowledge that the conduct was lawless, criminal and unlawful" and that the protesters "were not pursued, they were not arrested, they were not charged."

The government's only answer to the stunning lack of law enforcement, Mr. Evans said, is that "some native protesters were charged with some offences related to the occupancy," but none in relation to the reign of terror inflicted upon Mr. Brown and Ms. Chatwell.

In arguments earlier this week, when the government unsuccessfully tried to have Judge Bielby disqualify himself from the case because of an ancient and minor professional relationship he once had with Mr. Evans, government lawyers indicated Ontario had treated the native protest as "a land claims issue" and felt bound by the special protocols required in such dealings with aboriginals.

But nothing in those protocols, Mr. Evans said, "suggests natives are free to commit unlawful conduct against individuals and then be free from the law by fleeing back to the land claim site .... This claim is not about the right to peaceful protest. The claim is about the police obligations to protect by enforcement of the law."

Mr. Evans's calm voice and courtly manners stood in stark contrast to the picture he painted for the court - the couple, alone in their home, having spotlights shone into their windows, bonfires and chanting outside, being threatened with "your house is next."

Almost two months after the occupation, the OPP belatedly raided the property, but were repelled "by as many as 1,000 or more natives who came off the reservation on foot and on ATVs and trucks, wielding two-by-fours and shovels and like weapons."

The police hadn't warned Mr. Brown and Ms. Chatwell - a failure Mr. Evans called "extraordinary" - and in the month that followed, as natives barricaded Argyle Street, they were required to produce a native-issued pink-and-yellow "passport" even to get to their house, and they and their car were routinely searched at the checkpoint.

They "had no protection by the police" during this period, Mr. Evans said.

"They lived a terrified existence between the two sets of barricades on Argyle Street for a month. You will hear of intimidation, unlawful detention, searching of vehicles, the open theft by protesters at the barricades - witnessed by the OPP - of a case of beer and groceries ... as they try to return home.

"All of those events have had a traumatic effect" on them "and caused profound fear in them."

On numerous occasions, the couple sent Ms. Chatwell's son away, when "they decided it was not safe" for him. "You will hear of the extraordinary pain this caused his mother," Mr. Evans said.

The lawyer described one incident, when the barricades were up (they came down only after Ontario paid the developer about $12-million for the land), when Mr. Brown was forbidden to go home because he had missed a native-imposed "curfew," put his foot on the gas and drove through anyway - only to be "surrounded on his own property by a gang of men in balaclavas and bandanas riding their ATVs in circles around him." All of it, Mr. Evans said, was "witnessed by the OPP."

Mr. Brown was driven back to the OPP barricade, arrested (although never charged) and spent a night in jail - while not a police finger was raised against the natives who had surrounded him, "shouting fearsome threats."

After the house was ransacked and vandalized just before Christmas, 2006, Mr. Brown agreed to let the OPP install a hidden surveillance camera outside at the rear of the house; the OPP instead installed it in the kitchen of the home.

The trial continues today.

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