Again, Magas says she will rely on the witness's affidavit, so back to Crown Karimjee for cross. Surety agrees aware Ottawa/Ontario states of emergency, warnings from police against protest.
Surety testifies was also aware of injunction against horn noise, and of Lich's video statements indicating people should "hold the line."
Surety agrees was also aware Lich was involved in fundraising for the convoy, and that Lich said "hold the line" when she was arrested.
Surety agrees surety posted on FB on Feb. 19 a picture of Lich with the phrase "SO PROUD," when Lich was already in jail.
Crown shows surety a picture of trucks at the Ottawa protest. "Would you agree with me the street is being blocked," he asks. Surety says, "I can't see the full picture but I would say yes."
"Blocking the streets is wrong; protesting is not," surety says when pressed. Says never told Lich to stop. "I don't advise her on this particular situation."
"You believe that the ends justify the means," Crown says. "No," surety replies. "I was proud of her for protesting and speaking up for what she believed in."
(Sorry for dropping pronouns re surety but we cannot report any identifying information which I presume to include gender, due to the publication ban.)
"I can be proud of her for voicing her opinion. I don't always have to like what was happening," surety says. That is, not necessarily proud of protests blocking the streets of Ottawa.
"I was proud of her up until she broke the law. But I can still be proud of her," surety says. Crown notes this was Feb. 19, after Lich had been arrested.
Crown points out on Feb. 23, surety updated FB profile with two pictures of Lich, including one with a Canadian flag that the surety added.
[Court will break for lunch until 2 pm.]
Tofu was supremely bored by R. v. Lich but is enjoying the intermezzo, despite posting yet another oh-fer catching squirrels.
And Tamara Lich bail review hearing resumes, with the removal of the accused's shackles.
Crown Moiz Karimjee says the amount pledged by the surety is $10,000 -- $7,500 of own savings and $2,500 from surety's parents. Surety says has $100,000 equity in home.
Asked if willing to pledge full $100k equity in home, surety says that would require a conversation with spouse. Surety also has joint RRSP of $200k plus a pension.
Surety says aware of March 5 "Freedom Chain" event, doesn't know exactly what it is. Crown says it is plan to block entire Trans-Canada Highway from Victoria, BC, to St. John's NFLD. Surety says aware of the idea.
Karimjee asks surety if aware Lich's daughter does not support Freedom Convoy. Surety says aware of her views, doesn't know if the daughter made views plain to Lich.
On re-examination, surety says doesn't have background in law, but knows mischief is an offence. (Some stuff about surety occupation I have to leave out.)
Re: the March 5 Freedom Chain, surety says would ensure Lich doesn't encourage or participate in the event, if released. Would enforce a condition on limiting internet access, if court imposes one.
Judge Johnston has some questions. Wants to know distance from surety home to Lich's home. Says a concern is whether Lich will continue to participate in this convoy or others.
"I would suggest she stays off social media, it's just a dangerous thing to go down," surety says. Would visit to look at phone to ensure. "I'm putting a lot of trust in [Lich]."
Because surety is putting up savings, surety believes Lich will respect the order, says would be able to call police if believed Lich was breaching conditions.
[Some more details about surety occupation and home life that might skate close to publication ban so can't report.]
Crown suggests surety doesn't have the time to "babysit" Lich. Surety insists can handle it.
Crown pushing on surety's relationship with Lich, and the claim Lich wouldn't want surety to lose the money offered up, despite Lich saying "hold the line."
"It didn't mean breaking the law, to me," surety says. Took it to mean keep protesting.
"I can be proud of her but I don't support everything she does," surety says of Lich.
And now moving on to submissions, defence counsel Diane Magas going over some filed evidence, doesn't like characterization of Pat King as Lich's friend or term "occupation" to describe Ottawa protests.
Lich's lawyer Diane Magas arguing case law about sentencing in similar cases of protests gone awry, with respect (I believe) to the tertiary grounds of bail review. Notes no allegation of violence or destruction of property against Lich.
Magas cites affidavit filed on Lich's behalf from a Statistics Canada employee who lives 4 kms from Parliament Hill who found the protests happy and not disruptive.
And another affidavit from downtown Ottawa restaurant who had PTSD from a 2004 assault who said had no issue walking around the protests.
Magas says raising the issue of J. Bourgeois's past politics is fair game because lawyers have a duty to raise any issue that could effect the decision.
Magas raising the number of times Bourgeois used the term "our" ... city... streets... community... in the Lich bail decision, suggesting an out-of-town judge should have heard the case.
This, mixed with the praise from Justin Trudeau in 2011, raises a reasonable apprehension of bias of J. Bourgeois's decision to deny Lich bail, Magas argues.
Magas also arguing "hold the line" Lich uttered while being arrested doesn't necessarily mean block the streets, that is, it could mean to continue to protest lawfully.
Judge Johnston interjects, saying at that time, the city and province hand warned protesters blocking the streets would be arrested.
Magas claims J. Bourgeois had concluded an offence had been committed by finding the streets of Ottawa had been blocked.
Magas says the Crown is considering changing the wording of the counselling to commit mischief charge against Lich, also claims Lich wasn't read her rights when arrested.
Magas also says accused will raise Charter issues at trial, all to say the case isn't a slam dunk, which goes to secondary and tertiary gounds of bail application.
Judge Johnstone circles back to the apprehension of bias against Bourgeois. Wants to know if the argument is that the judge was once a Liberal candidate. "How do the charges have to do with any party?" he asks Magas.
Johnston seems to believe Trudeau was party leader in 2011, when Bourgeois was a Liberal candidate. (He wasn't, just a Montreal MP.)
Magas is allowing this isn't a major part of her argument. Judge Johnston points out Bourgeois was a provincial appointment to the bench and Trudeau had no role. Magas says this should have been raised at the bail hearing.
Johnston says this is "fairly serious allegation." Magas says it was her duty to bring it up now, makes clear she's not suggesting "actual bias" but referring to a "reasonable person test."
Magas says there is no evidence before the court of Lich telling protesters to keep blocking the street, only the "hold the line" videos which are subject to interpretation.
Magas notes that Lich, age 49, has not criminal record, says it's an error of law to suggest she is a substantial danger to endanger the community, particularly as no evidence she did anything violent or encouraged others to do so.
[We still have to hear Crown submissions and Karimjee tends to be... thorough. So I don't expect a decision on bail review today, sorry.]
Magas walking through case law on how the seriousness of an alleged offence factors into bail on tertiary grounds. Mischief, she argues, is at the low end of the scale; murder is at the high end.
"It cannot be said the detention of Ms Lich is necessary," Magas says.
Magas says it's not what the public thinks, "the mob." The right to bail is the premise. "We have someone charged with mischief with no criminal record." Says Lich should have been released on recognizance much less be held without bail.
Magas says a surety is appropriate, though even not necessary. Lich "wants to go back home" and wants to go back to work. No evidence she would not follow the conditions imposed.
That's it for defence submissions. 15 minute break, then Crown submissions.
Back at it, Crown Moiz Karimjee says the main fact here is that there was no error of law in Tamara Lich's original bail hearing. "My friend [Magas] needs to demonstrate an error of law or change in material circumstance."
That is, the Crown says, the defence must show judge exercised her discretion in weighing various factors "unreasonably."
Karimjee says raising the apprehension of bias claim, Ms Lich continues to display the attitude of ends-justifies-means. "Baseless, vexatious, frivolous... allegation."
Karimjee says Lich expects court to believe Justice Bourgeois was fair and impartial when releasing Chris Barber and, within 24 hours, was subject to bias she when heard Lich bail application.
Karimjee invites the court to draw negative inference against Lich's credibility for making this allegation and shows Lich is capable of lying under oath.
Now he cites SCOC decision that used "our communities... our country" phrase in a drug case, to shoot down defence's further claim of bias against Bourgeois.
Now Crown turns to question of whether this is a material change in circumstance, and relevant case law, "J.A." and this is extremely tedious.
Nothing in Lich's evidence today changes Bourgeois's conclusions, Karimjee argues.
Karimjee plays video of Rideau-Sussex blocked by trucks in which Tamara Lich appears, saying "get the word out." The inference to be drawn from "hold the line" is clear, he says.
Karimjee notes that Lich on Feb. 4 invited police and military to follow their consciences. Judge Johnston notes this is outside the time of the alleged offences. Crown says past statements can be used to interpret later remarks.
"Any bail plan is only as good as the accused," Karimjee says. Doesn't believe there has been a material change in circumstance for the accused.
"If someone does not obey the rule of law... how does it make Your Honour's order special?" Crown says with regards to whether Lich would abide by bail conditions.
Karimjee questions whether the plan presented by new surety. Says previous surety, her husband Dwayne, was residential. The new proposed surety lives elsewhere, and plan doesn't address how surety would ensure Lich isn't organizing online.
Karimjee says the new surety is not a material change. Judge Johnston wonders about why Chris Barber got bail on similar allegations. Karimjee says evidence in both cases was different.
"The question is whether her decision in this case was reasonable based on evidence this judge heard in this case," Karimjee says. There is no issue of parity.
Karimjee again tells judge his role is decide whether J. Bourgeois decision was reasonable, not to consider this case based on evidence in another case (Barber). "I urge the court to not go on that path."
Karimjee recapping evidence to show Lich was a leader of the protesters. Says there is no material change in the evidence to the strength of the Crown's case.
This has nothing to do with the prime minister of Canada. This is the rule of law, Karimjee says. Notes he cannot blockade the courtroom if he doesn't like the judge's decision.
Releasing Lich would send the message to people planning the Freedom Chain event that they can flagrantly breach the law.
[Karimjee has a very formal tone. Always cites another judge as "your brother" or "your sister."]
Karimjee says there is no air of reality that a court will consider a Charter right to blockade a street. Repeats that this case is about confidence in the administration of justice.
Karimjee wrapping, repeats no error in law, no material change in circumstance. "Ms Lich needs to be detained," he says, "to maintain confidence in the rule of law. Anything else would be to rely on her word."
Magas giving a rebuttal of Crown submissions, arguing Bourgeois made an error of law by saying couldn't compare Lich decision to Barber because she didn't have the Barber evidence and... I don't follow this and I want to go eat something.
Magas says Crown's position makes no sense -- that it effectively means any alleged offence shows the accused doesn't follow the rule of law and therefore couldn't be released.
Magas citing Bourgeois references to Barber case in Lich decision, claims these are errors in law she made. Judge warns here this is reply to Crown submission, not new arguments. "It's getting late," he says.
Magas describes the Lichs as middle-class people earning $50,000 annually.
Justice Johnston says he cannot give a decision today, and can't address it Thursday or Friday because his schedule is jammed. Suggesting Monday March 7, 2 pm but TBD.
So Tamara Lich will spend at least five more nights in custody at the detention centre on Innes Rd. Court is adjourned until Monday to hear decision on bail review application. -30-
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