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Amnesty wants an inquiry to determine if officers used the cuffs to inflict pain and suffering, Craig Benjamin, Indigenous rights campaigner for Amnesty International Canada, told the Star.
“If the cuffs were used for any of these purposes, there needs to be consideration whether there should be criminal charges,” he said.
Plastic cuffs are dangerous because they can continue to tighten after they have been applied to prisoners’ wrists, according to a 2012 independent review of police actions at the 2010 G20 summit in Toronto. “In all cases, handcuffs should be removed from prisoners who have been searched and lodged in cells unless there is good reason to continue their use,” said that report, by the Office of the Independent Police Review Director.
Benjamin said the OPP’s response to the 2008 protest was a test case for the landmark Ipperwash Inquiry into the 1995 shooting death of an Indigenous protester by a police sniper.
The scale of the OPP response and use of plastic cuffs on the Indigenous men raises “obvious concerns that they may have been victims of the kind of institutionalized racial bias documented in the Ipperwash Inquiry,” Amnesty wrote in a letter to Premier Kathleen Wynne earlier this year, calling for an independent investigation.
In a written statement, OPP spokesperson Carolle Dionne told the Star to file a freedom-of-information request.
The large fire pit where the Mohawk “land defenders” protested a decade ago is still intact on a grassy knoll on the outskirts of Deseronto. Down a dirt road nearby is a gravel quarry, its water a deep azure.
“The hill with three trees,” said James Kunkel, one of the men who was arrested, at the site. “This is where it all went down.”
The spot is about a kilometre from the contested eastern boundary of Tyendinaga Mohawk Territory. As early as 2006, it has been a linchpin in the fight over an unsettled land claim called the Culbertson Tract.
The Mohawks claim the 827-acre parcel of land is theirs under the terms of a 1793 treaty, but was improperly taken from them in the 1800s.
Today, the Culbertson Tract it is almost entirely privately owned.
Their claim, which includes much of the town of Deseronto, was accepted by the federal government in 2003. But the Mohawks rejected an offer of financial compensation, arguing that the government should buy back the land from its current owners to return it.
On April 21, 2008, Mohawk protesters occupied a stretch of road in Deseronto, railing against a planned housing development. They held a simultaneous occupation at the quarry, which had been active for about a year.
“It was pretty simple: revoke the quarry licence and we’ll all go home,” protester Dan Doreen recalled. “And no housing developments in Deseronto.”
Doreen, Clint Brant, Steven Chartrand and the father-and-son duo of James and Matthew Kunkel were all arrested here and later restrained in plastic cuffs in custody.
All except James Kunkel were convicted of charges related to the protest, ranging from assault of a police officer to mischief.
James Kunkel’s name does not appear in a list of those charged and convicted after the protest, according to a review of court documents prepared for Amnesty. He told the Star he was released without charges the day he was arrested.
OPP video used as an exhibit in Matthew Kunkel’s trial shows what happened the day he, Doreen and several others were arrested.
“This will end if you stay the hell away from the quarry,” Doreen says to an officer at one point in the video.
“If we don’t leave off this road, they’re going to invade us,” Steven Chartrand says later. “I can’t guarantee you your officers’ safety when they’re on the Tyendinaga Mohawk Territory,” he tells an OPP officer.
About two minutes later, police appear to block protesters as they return to the grassy knoll.
“You’re not going through here,” an officer says.
“I’m walking back,” Doreen says.
The same officer says, “You’re under arrest.”
A skirmish ensues. Officers tackle several protesters to the ground. The video shows Doreen being taken down by at least three police officers. He told the Star his ribs were broken in the scuffle.
OPP officers’ witness statements obtained by Amnesty and reviewed by the Star confirm the force’s elite tactical force, the Eastern Tactics and Rescue Unit, was present at the protest.
Eighteen people were arrested at the April 2008 protests; 13 were convicted of crimes ranging from mischief to assault with a weapon, according to the review of court documents.
After officers arrested Doreen and the four other men, they were transported to an OPP detachment in nearby Napanee, where they were held in a cell together.
“As soon as they took you out of the van,” James Kunkel said, “they took the steel handcuffs off, put the plastic cuffs on behind your back. They threw five us in one cell, which aren’t very big — six by 12, at best — and never took the plastic cuffs off.”
The small layout of the precinct temporarily “necessitated” five of the men to one cell, the OPP’s internal review says.
Matthew and James Kunkel had their own cell for a time, but Matthew was transferred back to the one with the three others the following morning.
Clint Brant was in plastic cuffs overnight, the longest of the five men. Police cut his cuffs off in the morning, about 14 hours later, the OPP review says.
His cuffs were “loose enough that he could freely move his arms,” it says.
Matthew Kunkel’s hands were restrained behind his back in plastic cuffs, but he broke out of them repeatedly. “I broke them every time they put them on,” he told the Star. “I wasn’t going to sit there in handcuffs.”
“(Matthew Kunkel) remained in nylon restraints for about two and a half hours until he broke them,” the OPP review says. “Restraints were not reapplied to him for the duration of his detention.”
Chartrand also broke out of his plastic cuffs. The OPP review says an officer reapplied them and he broke out again an hour and a half later. They were not reapplied, “for the remainder of his detention,” the review says.
Doreen was restrained with his hand behind his back for an hour, after which new plastic cuffs were reapplied, this time in front.
“The other guys were either flexible enough that they could put their legs through their arms and bring them back out front, or they were able to break them,” he said. “I couldn’t break them, and neither could (James Kunkel).”
(The OPP review says Doreen broke his restraints “at some point during the evening.”)
James Kunkel said he was restrained in plastic cuffs for about four hours before he was released without charges.
“They were treating us like substandard people,” he told the Star. “All the tactics they used was mind-control and humiliation — period.”
The OPP review said his cuffs were removed “when he told the guard they were bothering him.”
The other four men were held at the detachment until the early afternoon the following day, April 26, when they were transferred to the nearby Quinte Detention Centre.
Matthew Kunkel — who told the Star he hit an officer in the back of the head with brass knuckles — was convicted of assault with a weapon causing bodily harm and weapons charges. He was sentenced to two years of probation.
Doreen was convicted of one charge of assaulting a police officer and five counts of mischief. He was sentenced to one day in jail and one year of probation.
Steven Chartrand was convicted of six counts of mischief, and received one year of probation.
Clint Brant was convicted of five mischief charges, one charge of obstructing a police officer, and one charge of dangerous driving. He, too, received one year of probation.
The five men “were able to sleep, eat and go to the washroom and despite the restraints being on them they were still able to move their arms and hands,” the 2016 OPP review said.
Every 15 minutes, the review says, guards checked on the prisoners.
“The five prisoners in question had just been arrested on the belief that they had committed violent criminal offences. Further, some of the arrested persons have a lengthy history of violence,” the review says.
Plastic or nylon cuffs it continues, are “approved and regulated by policy ‘where insufficient handcuffs are available.’”
“(N)one of the involved officers had any memory or recollection pertaining to the use of nylon restraints. In fact, the officers did not even recall using nylon restraints let alone the reason behind their use,” adding that no direction was handed down to use them.
Larry Hay, a former officer with the RCMP and the former police chief of the Tyendinaga Mohawk Territory, said the OPP went against its own policy with its protracted use of plastic cuffs.
“Once they’re in custody, no one is to be shackled. There’s no need for it, unless they’re trying to harm themselves,” he said.
Hay served as Tyendinaga police chief from 1998 to 2008. He was fired by then OPP commissioner Julian Fantino in 2008 after he told a student newspaper the OPP, RCMP and Sûreté du Québec are racist organizations.
“I’m very familiar with those devices,” he said. “I’m aware of the damage they can do to your circulation system and how painful they are.”
Hay, from Wahta Mohawks First Nation near Parry Sound, said he’s used plastic cuffs in the past, but called them a temporary measure.
Craig Benjamin, from Amnesty, said the OPP’s review was cursory, at best.
“There was no real explanation provided for the use of the plastic cuffs — there was no attempt to reach an explanation,” Benjamin said.
An impartial investigation into what went wrong in the 2008 Tyendinaga case could help prevent history from repeating itself, he said.
An investigation could also help enforce the recommendations of the Ipperwash Inquiry, which called for sweeping police and governmental reforms to sidestep violent clashes with Indigenous people.
The two-year public inquiry, launched in 2003, came after OPP sniper Ken Deane shot and killed Indigenous protester Dudley George during a land occupation at Ipperwash Provincial Park in 1995. At Deane’s trial, a judge found George was unarmed when he was killed.
The report of the Ipperwash Inquiry “showed that the loss of a life stemmed from a whole series of fundamental problems in the way police respond to Indigenous land occupation or rights assertion,” Benjamin said.
There should be “a very high onus of accountability” on police when they respond to Indigenous protests, he said.
“We’re also concerned for justice for the men themselves,” Benjamin said. “At the very least, an acknowledgement of the mistreatment.”
Ministry of Community Safety and Correctional Services spokesperson Brent Ross said he could not comment on Amnesty’s concerns, saying “it would be inappropriate to comment” so soon after the provincial election.
Doreen said he expects nothing from police or Canadian governments. For him, he said, defending the land was enough.
“Even though the police kept us in handcuffs, zip-tied in jail cells, brought guns against our people, there’s no trucks taking stone out of the quarry anymore, there’s no housing development in Deseronto, so it was a victory, on our half,” he said. “We won.”
With Star files
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