Thread by @DavidAnber

BAIL DECISION TODAY

#TamaraLich

I’ll be live tweeting and also including my estimate on the odds as the decision is released. Currently my estimate is:

https://twitter.com/davidanber/status/1499150581012774920

Publication ban is reiterated. Counsel for the defence raised how it had been breached previously. Judge says he doesn’t refer to the “proposed surety” by name. Not a good sign that he said that.

Tamara Lich’s Bail (Review) decision is now under way — Johnston, J. Orally:

Moiz Karimjee, for the Crown (Respondent);

Diane Magas, for Ms. Lich (Applicant).

Judge says decision is lengthy.

Justice Johnston, cites R. v. St-Cloud which says that the Bail Review provisions are not open ended, but gives greater jurisdiction than an Appeal.

Discussion of the first bail decision:

No record, and no prior non compliance. But the first judge found Lich’s behaviour suggested that she would continue to commit offences. Original Judge was unimpressed by Ms. Lich’s testimony evasive and guarded.

Original judge placed emphasis on all levels of government telling protesters to go home and stop protesting.

Original judge found that continuing substantial risk was not reduced by original surety. She found him unreliable and not credible, not candid, contradicted & evasive.

Judge now summarizing original judge’s decision on the “tertiary” ground — to maintain confidence in the administration of justice. Original judge found “case against [Lich] appears relatively strong”. Original judge found that Lich was acting as a leader. Streets were blocked.

Original judge said that considering gravity of offence, that the offence was grave — it had an impact on community, emergency services etc.

Extent of “time and footprint” & impact on community are important circumstances. Also potentially lengthy term of imprisonment if guilty.

Review Judge now reviewing position of parties.

Defence points error of law, apprehension of bias, clearly wrong decision, and a change of circumstance.

Crown disputes all grounds and says the claim of bias is baseless, vexatious.

Judge stops because someone is live streaming

We are now in recess because the judge is ticked that live streaming is going on.

We’re back in business. Judge resumes, pointing out Crown’s further argument that claims of bias are not believable. Crown argues there has been no change of circumstance. The new surety wouldn’t have changed anything at the original hearing. 👑 argues for deference to 1st ruling

Crown argues new surety is not suitable; new surety has other responsibilities; new surety said that they were proud of Lich.

Crown argues no error of law in original Judge’s decision.

In alternative, Crown argues detention remains justified.

Circumstances are serious.

On the subject of the reasonable apprehension of bias. (This isn’t going to go anywhere)

Review Judge says this is a serious allegation to make. “In this case there is nothing more than this justice over a decade ago, appointed provincially… without more, is irrelevant”.

“The accused in this case has provided no evidence on which a reasonably informed person could find bias or reasonable apprehension of bias”.

“I equally find no merit to the argument [that the original judge referring to “our community”] suggests bias”.

“I do not agree with the crown’s argument that I should make an adverse finding against Ms. Lich’s credibility based on her misguided claim for bias”.

Judge now turning to other issues.

Review Judge finds original judge found and was entitled to find that the conduct itself led to a substantial likelihood of further risk, based on the evidence at the first bail hearing.

There was evidence that supports the original judge’s rejection of the surety.

As it pertains to the “tertiary” ground (confidence in administration of justice). “Respectfully, I find that the original judge committed several errors”. It was an error to confound the severity of the impact of the protest with the seriousness of Lich’s offences.

The errors are not minor. The trial judge also erred in finding that there would be lengthy imprisonment without considering sufficiently the role of Ms. Lich.

The honking of horns was aggravating but there was no assessment of Ms. Lich’s involvement in these egregious aspects.

“There will likely be triable issues with respect to if this accused is to be held responsible for the more aggravating factors. Tertiary ground detentions usually involve violence or weapons or great harm to the community ie drug trafficking. No allegation of physical violence”

I find that it’s not likely that this accused will face lengthy imprisonment. Highly unlikely that this 49 year old employee person would face lengthy imprisonment. This was an error.

In light of errors, Review Judge is considering the bail de novo (a fresh consideration).

Proposed surety is now being considered. Lives near accused. In close contact with accused. Proposed surety readily admitted apparent support for Lich. Surety was “proud of family member for standing up for what she believes in”. No suggestion proposed surety attended “blockade”.

“I was impressed that proposed surety admitted things I didn’t expect her to admit”. Proposed surety stood by her answers. Proposed surety was sincere in answering Crown questions. Surety said they would find time to enforce bail and “check her every day” referring to Lich.

Judge accepts that proposed surety will turn in Lich if she breaches. Surety has no record, bas no record, appears to live a pro social life and is suitable.

Ms. Lich will require supervision if released but any risk can be addressed with this surety.

“Given my findings of the proposed surety, I’m satisfied with appropriate conditions, risk can be managed and Ms. Lich can be released. Crown has not met onus to detain on secondary grounds.”

As it pertains to tertiary grounds (confidence in the administration of justice). “At this stage, the accused is still presumed innocent”.

“In applying the law to the case here, I find that the count of counselling to commit mischief is strong.”

“The analysis at this stage should include some assessment of the aggravating factors. It appears strong that the accused continued to counsel this after the states of emergency were in effect.” Judge also cites the honking and closures of stores and unruly behaviour.

Ms. Lich is but one of a number of accused involved and but one accused leaders. These are early days of the case. It will be with the fullness of time and with a trial that Ms. Lich’s role might be proven beyond a reasonable doubt. But it is not an overwhelming case re egregious

Elements being proven against this accused.”

Judge says it is important to consider strength of Crowns case for more aggravating aspects and this is debatable.

Judge: Offences are serious, but really not that serious compared to more violent charges in Criminal Code, these offences are at a lower scale.

“That’s not to say that the impact of these offences isn’t serious”.

“It is ALLEGED that businesses closed and people left their homes due to noise and fumes and fear. It appears clear that there is alleged interference with enjoyment of property of citizens”. Judge cites Zexi Li’s affidavit in civil case. But no violence alleged by Lich.

“Ms. Lich is seen on video saying “hold the line”. But use of tertiary grounds to detain usually involve violence or terrorism offences, home invasions or serious drug trafficking cases. None of these issues are present here”.

Unlike the St-Cloud case, where serious violence was used and everything was on video, that is not the case here.

Here there is the possibility for lengthy incarceration, but it’s hard to say that would be the case at this stage.

“She’s 49, no record, she’s a mother, has led a pro social life, she has a job, boss describes herself as productive employee, she has Métis heritage which would trigger Gladue factors at a sentencing hearing; sentence will involve consideration of many factors”

Possibility on the facts of this case that she may not even go to jail.

Review judge references a conditional sentence.

A trial would be many months away and she might sit in jail longer than her sentence if she was detained. This weighs in favour of release.

“I find that this accused ought to be released”.

✅Surety is required
✅Cash bail deposit not required
✅$20,000.00 bond (Surety)
✅$5,000 bond (Tamara)
✅Leave ottawa in 24 hours
✅Leave Ontario in 72 hours
✅Report to police
✅Reside as directed
✅No contact with co accused
✅No social media
✅No protesting COVID

✅Surety to monitor devices
✅Not to allow people to post messages on behalf
✅Attend Court as required
✅Not attend Ontario except for Court and meetings with counsel

Crown now providing names of co-accused with whom Lich may have no contact.