At 2 pm, a hearing is scheduled to hear a decision from Justice John Johnston in the bail review application filed by protest organizer Tamara Lich, who remains in custody after previously being denied bail.
At the review application hearing last week, Lich proposed a new surety, a relative who we cannot identify due to a publication ban. Lich's previous proposed surety, her husband Dwayne Lich, was deemed not appropriate by the previous judge.
At the review hearing, Lich's counsel argued that the judge in the original bail application could appear to be biased, as she had been a Liberal candidate in the 2011 election and has been praised by then Liberal MP Justin Trudeau.
The Crown contends that Lich is at a substantial risk of re-offending if released and has cited her "Hold the line" comment made while she was being arrested in downtown Ottawa. The defence argues that the phrase is not meant to encourage illegal activity.
Court is in session. Diane Magas for the accused is in the courtroom; Moiz Karimjee for the Crown is on Zoom. Magas tells the judge there has been a breach of the publication ban. A detective Benson has been told.
Justice Johnston asks the clerk to repeat the publication ban on the name of the surety; and the warning to not broadcast the hearing.
Johnston recapping the case, noting bail was denied based on likelihood of reoffending and to maintain confidence in the justice system.
Johnston says primary case law is R. v. St-Cloud, which establishes a hybrid remedy to review bail decisions based on errors of law and if decision was clearly inappropriate.
Johnston notes that the original judge found Lich had a substantial likelihood to re-offend, "a pattern of non-compliance," even though she had no previous criminal record.
The bail judge found Lich's bail plan "frail" and unconvincing, and said Lich was encouraging truckers and friends to "hold the line" and posted on FB her interpretation of the noise injunction order.
The bail judge (this is Justice Bourgeois that Johnston is quoting) found proposed plan of release was "insufficent."
Johnston also quoting Bougeois' findings on the tertiary grounds, about confidence in the justice system and gravity of alleged offences, etc.
[This is all pre-amble so far. Johnston has yet to say whether he has found these findings hold up to review.]
Johnston reads Bourgeois finding that Lich, upon conviction, would face a lengthy term of imprisonment (this is an area the defence counsel has challenged in the bail review application).
Johnstone summarizing defence case, that there were errors in law, reasonable apprehension of bias, a change of circumstance (the new surety) and the decision was unreasonable.
Johnston recaps Crown case, that the bias allegation was vexatious... Oops. Judge stops says someone is live streaming the hearing, is probably an offence. Clerk repeats the warning against this.
"I'm not going to permit this to take place," Judge Johnston says, clearly miffed. Calls for a five minute break to ensure live stream is shut down.
[I don't know where the live stream is coming from but on Freedom Convoy 2022 Facebook comments, someone was pushing a link that seemed to require signing up for a VPN first, so may have been a scam.]
Judge Johnston is back on the bench, says if he gets another report of live streaming is that he will close down the Zoom and exclude the public, but says that's not his preference.
Back to recapping Crown's position, that Lich's assertion about bias is not believable, that the court ought to make an adverse finding against Lich's credibility for this claim.
The Crown also said the new surety doesn't amount to a material change in circumstance, Johnston summarizes. That she is not suitable and capable of monitoring the accused, because of family and employment commitments and had posted on FB was proud of the accused.
Crown also said there was no error in law in original bail decision. In short, no error and new evidence even if admissible, wouldn't have changed the outcome, the Crown argued.
Johnston now on allegation of reasonable apprehension of bias re Justice Bourgeois. "This is a very serious allegation to make," Johnston says of this claim.
"There is nothing more than the fact that this justice over a decades ago, before she judge appointed provincially...is irrelevant." Johnston says.
"This case is not about politics" or the PM's policy on vaccination, Johnston says, political issues have nothing to do with whether Lich committed the alleged offences.
Johnston says accused presented no evidence to support allegation of bias. Also finds no merit in LIch's claim over Bourgeois saying "our community" in her decision showed bias.
"I conclude no reasonable apprehension of bias against Judge Bourgeois," Johnston says. However misguided the allegation, he won't make an adverse finding against Lich for raising the issue in bail review.
Johnston onto error of law issue. He says the evidence was sufficient for Bourgeois to make a finding to not release, based on secondary grounds -- the likelihood of Lich reoffending.
Johnston also says there was evidence for bail justice to reject the proposed surety, and that the Crown met its burden on secondary grounds.
But Johnston says the bail judge did commit errors with respect to the tertiary ground, in comparing the gravity of the alleged offences. He says she didn't consider the impact properly, used subjective considerations.
"I find this error in law was not minor... could have led to an error in final determination on detention," Johnston says. [Big win for Lich here.]
Johnston says there was no assessment by bail judge of Lich's involvement in the most egregious aspects of the protests, honking of truck horns. Says it is unlikely a penitentiary sentence would result on conviction.
Johnston says detention on tertiary grounds usually involves violence, weapons and deadly narcotics. Says circumstances of Ottawa protest was serious, however, ought to have been consideration did not involve physical violence.
[If you're just tuning in, it *appears* the judge is going to either give Tamara Lich bail or possibly order a new bail hearing.]
"It is highly unlikely this 49 year old accused with no criminal record and has a job" would serve a penitentiary sentence if convicted, he says.
Now Johnston turns to the new proposed surety, who readily admitted posted a picture of Lich with a Canadian flag with caption "So proud," but stated didn't agree with breaking law.
"I was impressed that the proposed surety admitted several things that... might have disputed," and was aware of the activity that broke the law. Witness was sincere, Johnston says.
Johnston finds the proposed surety credible, believes will make time to ensure conditions are observed, would call the police if Lich breached. The surety "appears to live a pro-social life."
Johnston says he considered that Lich has a job, has lived a crime-free life up until the alleged offences. "I am satisfied with appropriate conditions that this risk Ms Lich" has can be managed. Crown has not met onus to detain on secondary grounds.
Now, finally, onto Crown request to detain on tertiary grounds: Johnston says Crown's proposed case is strong with triable issues.
But Johnston says Lich is one of a number of those allegedly involved in the more aggravating factors of the Ottawa protest, and this will be assessed at trial.
But Johnston says it's not certain the most egregious elements of the mischief will be proved against Lich in particular, so a conviction isn't certain to carry a lengthy sentence.
[Basically, the judge says bail judge should have weighed seriousness of charge against Lich against more serious charges, even though mischief is serious. It's just not as serious.]
Again, Johnston says this favours release.
Johnston says level of disruption of Ottawa protest ranged from mild to very intrusive; notes allegations some lived in fear, and clear evidence of economic impact and enjoyment of residents of their homes. Cites Li lawsuit on high dB level of horns.
Johnston reiterates there is no allegation against Lich of violence or use of firearms or drug offences, as often is the case where release is denied on tertiary grounds.
[The St-Cloud case involved a violent assault on a Montreal bus driver by the accused, and it was recorded on video, Johnston recaps.]
[It looks very much like Lich is getting bail, but waiting to see what Johnston will say about tertiary ground of maintaining confidence in administration of justice.]
Johnston notes that Lich claims Metis heritage and raises possibility of a Gladue issue were she convicted. Notes trial will not occur for many months, and LIch would likely spend more time in jail pre-trial than if convicted.
"I'm not satisfied the detention of the accused is necessary" to meet tertiary grounds. "I find this accused ought to be released."
Johnston will release Lich with the proposed surety and "significant conditions." Cash deposit is not required in this case, though. He notes cash bail is rare in Canada.
But he fixes the bond in the amount of $20,000, to motivate both the accused and the surety to comply with the bail conditions. If surety doesn't agree to higher bond, court would have concerns, he says.
Johnston also requires Lich herself post a $5,000 bond. Lich shall leave Ottawa in 24 hours and get out of Ontario in 72 hours; report daily to OPS of her location on way back to Alberta.
Lich must not associate with co-accused Chris Barber, Pat King and others, and must not log onto and (or?) post message on social media. Not to engage any organization of protests of COVID mandates.
Lich will also have to give surety access to electronic devices, or let anyone post messages on social on her behalf, and can't enter Ontario except for court hearing or to meet with counsel.
So, that's it. Tamara Lich will be released on a total of $25,000 in bond with conditions not to protest COVID mandates or use social media. Must go back to her home in Alberta.
The no-communications list for Lich release, from the Crown: Chris Barber, James Bauder, Benjamin Dichter, Daniel Bulford, Tyson Billings, Pat King, Owen Swiderski, Tom Marazzo, Byron Carr, Kerry Komix -- except through counsel for preparation for defence.
Crown Karimjee asks to add an additional condition that she not support anything related to the convoy protest either verbally or in writing.
Defence counsel Diane Magas says the proposed surety can't get into the Zoom chat but has agreed to higher bond of $20,000.
Magas raises the social media conditions in case of BBQ restaurant owner alleged to have defied COVID rules (R. v. Skelly), argues against ban on all forms of expression on social media was contrary to Charter.
Magas wants a narrower restriction on Lich's social media use, to protesting or organizing anything to do with COVID mandates, or alternately, to restrict social media use to communications with family or friends.
Magas wants to know why Crown added Daniel Bulford to non-communication list as he hasn't been charged with anything.
On social media restriction, Crown submits that Lich wouldn't have access to electronic devices if she was in jail. Calls this a balancing act, says he finds the judge's blanket ban on social is fair.
Johnston says in this case, a prohibition on social media is not too broad. Magas asks for exception for private communication with family or purposes of work. Johnston agrees for work only, not family members. Says he's given this serious thought.
Some back and forth about whether this would include email. Karimjee wants work exception for work confined to email and text, doesn't think she needs FB for work. Johnston agree with this.
Magas says Lich agrees she doesn't need social media for work. And we're done. "Ms. Lich, good luck," the judge says. -30-
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