Thread by @DavidAnber

Tamara Lich has a “Bail Review” today beginning at 10:30AM in Ottawa.

I hope to provide periodic updates on it via Twitter, please follow if you’d like to receive them.

Justice John Johnston of the Superior Court will preside. He’s a Harper appointment & former defence lawyer but that doesn’t guarantee anything. He’s smart & unbiased, but this case will be vigorously argued on both sides with the burden on the defence to overturn the bail ruling

A bail review is essentially an Appeal of the bail ruling which currently denied bail to Tamara Lich. There are two ways in which the review can be granted: 1) a change in circumstances, or 2) an error in law.

The main change of circumstance I is that the protest is gone & unlikely to come back in any unmanageable way. There are also a number of potential errors in the decision below. Defence will argue that conditions can be fashioned to allow for bail in light of changes/errors.

And it’s under way.

Defence will be proposing a new surety who’s name is being not published as the result of a publication ban requested by the defence.

Court is now addressing some boring technical preliminary issues.

Defence rightly points out that the Crown naming documents with inflammatory names like pictures of the “occupation” is wrong. Judge says he won’t make decisions based on these labels but based on the evidence.

Normally there is an “order excluding witnesses” which has witnesses wait outside the actual or virtual room as not to be influenced by what other people say. In this case the risk of the witness being able to get back in to this packed zoom hearing saw the Crown abandon this ask

Judge orders shackles to be removed from Lich as she does not pose a safety risk. Police didn’t want to and Crown after the fact agreed with defence request, but it’s been ordered.

Lich is now testifying. She has adopted her affidavit filed for this hearing attesting to being a suitable candidate for release. Now the Crown is cross examining her in order to try and discredit her/the affidavit.

Moiz Karimjee (the Crown) is grilling her. He is a very talented lawyer but he’s not making much headway, in my view.

Crown finished cross-examining Lich. Scored a few small points but nothing in my view solid enough to discredit the bail plan as testified to by Lich.

The surety is holding up to a strong cross examination by the Crown. The surety answered acknowledgement that blocking the roads is wrong but protesting is not. Judge’s comments however suggest that he’s a lot less impressed than I am by the answer.

Some admissibility discussions over the Crown’s materials which include media clippings. Judge agrees he cannot consider opinion but other allegations are proper in bail proceedings as “credible and trustworthy” information (in a trial this would not be allowed as it is hearsay).

Into arguments now: defence going first. First argument is comparing G20 charges to this; in G20 cases, some accused got 7-12 month house arrest sentences when there was rioting, violence, arson and significant property damage. Counsel contrasts this to present charges.

I need to attend to other matters this afternoon. I’ll try to start a new thread for the decision later on or tomorrow as the case may be. For the meantime, give my associate @MatthewWolfson2 a follow and he’ll be live tweeting as the hearing continues.

I’m back baby.

We are in Crown arguments. He finished addressing why he believes no errors were made. Now he’s moving to what constitutes a “material changes of circumstances”.

Tone of Crown’s voice suggests he knows he’s losing. But he’s an excellent advocate so it ain’t over

Citing from St-Cloud & JA decisions, 👑 makes the argument that any alleged change in circumstances must be read along with the initial decision denying bail to see if the change is relevant. Here, 👑 argues the judge’s findings on Lich’s testimony aren’t disturbed by new info.

It’s an attractive, but I think incorrect argument.

Judge pointing out similarity between Barber and Lich as organizers, but yet they got different outcomes. Crown responds evidence was different and “there is no principle of parity in bail”.

This submission is partially wrong.

In R. v. Budge [2012] O.J. No. 2538 (Ont. S.C.J.) at paras. 48-51, Justice Durno held that parity between accused can be a factor on the tertiary ground but is only of limited weight.

See also: R v. Mallaley, 2020 ONSC 7178 (CanLII)

Crown argues that the defence’s release plan is akin to “allowing a thief to supervise a burglar”. Say what you want about the Crown, he has a way with words and imagery. I don’t think the judge will be persuaded by it though.

Crown has concluded submissions. He says that to maintain confidence in the administration of justice & the rule of law Lich needs to remain detained. “Brief” reply from defence, pointing to the allegedly erroneous comparison to the Barber case.

She adds it is wrong to try & “send a clear message” by using Lich’s freedom. If you are alleged to breach the rule of law, our system deals with that in a trial, but not in the bail court. Her point is that there is a heavy presumption to release but she’s not making it clearly

Defence needs to wrap up — it’s important to know when you’ve said enough to your audience.

I’m out of tweets for this thread 🧵— I’m going to start a new one about the decision.