Thread by @atMatthewBest

I'll start the thread for the Tamara Lich bail review here.

Last week we left off as Justice Johnston finished taking submissions and replies from Diane Magas for the defence and Moiz Karimjee for the Crown.

You can read last week's details here:
threadreaderapp.com/thread/1499050…

As we wait, I'll go over some of the big-picture points from last week. Lich, through her lawyer, claimed she had concerns that the original bail hearing was bias due to Justice Bourgeois' former position as a Liberal Party candidate. Bourgeois also received praise from Trudeau.

Given that one of the major targets of the convoy protest was the Liberal party and Trudeau specifically, Lich & Magas claimed this raised a reasonable apprehension of bias. Moiz Karimjee countered that Bourgeois' granting of bail to Chris Barber disproved bias.

Lich, through Magas, also presented a new proposed surety for Lich. A publication ban was extended to the proposed surety's identity, beyond that this surety was a relative of Lich's.

Justice Johnston has just entered. Magas is asking for a moment to speak to Lich before as we do an audio check with Karimjee.

Magas says there's been a breach of the publication ban I just mentioned. She's asking the ban is repeated; Judge says he never refers to the surety name in his decision.

The Registrar is repeating the publication ban on the proposed surety and rules on broadcasting hearings.

"The decision's a little wordy," Justice Johnston says. He's summarizing the circumstances of the bail review.

"Detention was ordered on two separate grounds ... namely, that Ms. Lich's detention was necessary for the protection and safety of the public ... and 2nd, that her detention was necessary to maintain confidence in the administration of justice," Justice Johnston says.

(This is him summarizing why Bourgeois denied bail)

His Honour makes reference to R. v. St-Cloud, a Wagner-era SCC case that was heavily relied on and debated by Karimjee and Magas last week.

(Here's R. v. St-Cloud: scc-csc.lexum.com/scc-csc/scc-cs…)

"Sections 520 and 521 of the Criminal Code do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo proceeding, but a hybrid remedy," he quotes.

" It will also be appropriate to intervene if the justice has erred in law or if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another," he continues.

"The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently..."

"I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C.,"

"the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case."

Justice Johnston finishes quoting.

We've now moved on to Justice Johnston's look at Bourgeois' decision. He's referencing Justice Bourgeois reasons for detentions specifically, including her lack of record and no prior court orders -- but a "pattern of noncompliance" surrounding the protests.

His Honour quotes Bourgeois that Lich would "continue" or "counsel behaviour" that Lich would continue to disrupt public order, and Bourgeois' quotes that Barber differed from Lich, that Lich wanted to go home, and that Lich was "guarded" and "evasive" in her testimony.

Continue the quotes from those decisions, Justice J quotes Justice B on Lich "misleading" her followers re: the honking injunction and demands to "hold the line."

"The bail justice found that the proposed surety ... was unreliable and not credible ... not candid, contradicted," on Lich's first proposed surety (at the original bail hearing) and accordingly found the Crown had met its onus, Justice Johnston says.

Justice Johnston moves to Justice Bourgeois' reason for denial on the tertiary grounds (lowering the public confidence in the administration of justice -- the prior review was on secondary grounds, likelihood to reoffend).

"On the issue of the strength of the Crown's case, and I'm quoting: ... 'The evidence against you is particularly strong,' " Justice Johnston says, continuing to quote Bourgeois, noting the bail justice had found Lich counseled protesters, took the title of leader, etc.

"The bail justice found an ... impact on 'our community,' " Justice Johnston says, citing business, emergency services and vulnerable populations listed in Justice Bourgeois' decision.

On the potential of lengthy imprisonment, Justice Bourgeois said that Lich faced a substantial potential imprisonment. Bourgeois also found that it may not be obvious at "this stage" of Barber's hearing to find similarly for him.

Justice Johnston is summarizing the defence position: that there were errors in law, apprehension of bias, and that there's new evidence in the form of a new proposed surety.

On the Crown position: The bail judge was not bias, nor is there a reasonable apprehension of bias.

"This is a baseless attack on a judge who cannot respond," Justice Johnston says, quoting Karimjee's arguments from last week.

We're now taking a break to hear the Registrar again, since somebody is ONCE AGAIN live streaming it (as one of my followers mentioned).

STOP. LIVESTREAMING. TRIALS.

God this isn't hard.

(His Honour notes that not only is it wholly inappropriate, but the people doing it face potential charges.)

We're taking five minutes to ensure the livestream has stopped. Justice Johnston refuses to enable this, quite rightly.

#tamaralich #lichbail #truckerbail

We look like we've re-entered the court now, and though Justice Johnson looks like he's talking, there's no audio. Karimjee confirming he can't hear His Honour.

"We were receiving reports that this was being live-streamed," he says. "If I get a report that that continues again, the remedy I'm going to exercise is to close it down," Justice Johnston says.

Picking up where we left off, "the Crown alleges there are no grounds to find the original judge was bias or there was a reasonable apprehension of bias,' he says, and goes back to Karimjee's quotes about it being baseless and vexatious.

J repeats Crown's argument that the court should make an adverse finding against Lich (ie: that Lich's statements should harm her rather than benefit her).

"In the absence of fresh evidence or error law, this court, according to the Crown, should not embark on a de novo bail hearing," Justice Johnston says of last week's Crown arguments.

He continues summarizing Karimjee's arguments about the proposed surety: that the proposed surety has a job, children, that the surety posted on facebook that they were "proud" of Lich even after what Lich was doing was expressed to be illegal.

"Crown counsel argues there was no error in law by the justice at the bail hearing ... the justice took into account all the necessary factors ... provided them appropriate weight," J continues, again summarizing Karimjee's arguments for last week.

"Counsel argues detention remains justified," even if a de novo hearing is ordered, Karimjee said last week, as the judge summarizes here.

"The maximum penalty for the offence of mischief over $5000 is ten years" imprisonment, the judge says, which the Crown argued made it a serious crime.

Justice Johnston now addresses the reasonable apprehension of bias directly, re: Bourgeois' Liberal party candidacy, and the use of Bourgeois' use of "our community."

"I pause to state this is a very serious allegation to make," Justice Johnston says.

#tamaralich

"The fact is, in this case, there's nothing more than the fact that this justice, over a decade ago, before she was a judge -- appointed provincially, I might add -- was a federal candidate ... is irrelevant," Justice Johnston says.

"This case is not about politics, neither the accused's politics, nor the PM's," he says. It's about whether a new bail hearing should be ordered, his Honour says.

"The political issues that are raised in the blockade/protest/occupation have nothing to do with whether or not...

"... Ms. Lich committed the two offences or not and should play NO ROLE in the bail hearing or review."

"The accused in this case has presented NO EVIDENCE upon which a reasonably informed person could ... find bias or reasonable apprehension of bias," Justice Johnston continues.

On the allegation that Bourgeois showed bias by referring to 'our community' and 'our police.' "I equally find that there's no grounds," Justice Johnston says. "Justices by necessity come from the communities they serve."

"Judges in Canada are not permitted to make public comment on case. When a judge's integrity is called into question, they cannot defend themselves. Litigators and clients ought to exercise care in raising these allegations."

"I conclude there is no bases for bias by Bourgeois," Justice Johnston says.

Justice Johnston notes that he will NOT make an adverse finding against Lich, saying that it's possible that Lich believes the rhetoric behind the allegation -- that is, there's no evidence Lich doesn't actually fear bias herself.

Whether detention ought to be set aside: Was there an error of law. "There were both grounds and evidence upon which the bail justice could have ordered detention based on the secondary grounds," Justice Johnston says.

"Specifically it's alleged protesters were repeatedly warned of ... the states of emergency," and were "warned by police." There was also the civil injunction, his Honour notes, with Lich herself named as a defendant in the civil class action.

#tamaralich #lichbail

Johnston says Bourgeois summarized the impact the three-week blockade had on Ottawa residents. "There was evidence that the judge could and did use to reject the proposed surety, Mr. Lich," he says, and that there was evidence Lich's husband could not manage the surety obligation

On error in law on the tertiary grounds (confidence in admin of justice), Justice Johnston says: "Respectfully i conclude the bail justice DID commit several errors ... on the tertiary grounds."

Justice Johnston says Bourgeois erred in assigning too much gravity to the offence on the impact of the offence, rather than as compared to other charges in the criminal code, AS IS REQUIRED Johnston emphasizes.

"The bail judge used subjective considerations, not objective comparison. This is an error in law," His Honour says. "I conclude this error in law is not minor."

"It could well have led to error in final determination of detention."

"The learned justice also erred on finding there was a potential for lengthy detention on mischief and counself mischief," Johnston says. "The justice failed to give consideration to what the accused's role was in the mischief."

"There are many allegations ... there we also a number of accused persons. Some of the alleged crimes ... went far beyond simply blocking streets. Honking truck horns, train horns ... are aggravating to the charge of mischief."

The Justice says that the bail Justice failed to consider the role of Lich in those aggravating factors like honking train and truck horns, and that would effect sentence "and effect it significantly," he says.

#tamaralich #lichbail

Johnston says that, without the aggravating acts, it would be unlikely Lich would face a penitentiary sentence, he says.

"Generally, in cases where there has been a detention order on the tertiary grounds ... the cases often involve weapons, violence ... or injury," or that the circumstances involve harms to the community like trafficking drugs like fentanyl.

"I do not mean to suggest the circumstances of what occurred over three weeks in downtown Ottawa was not serious, because it was. However, there ought to have been a consideration of the fact that the circumstances did not involve physical violence," Justice Johnston says.

He is referencing paragraph 63 in St-Cloud. Here it is: "Although it is not desirable, for the purposes of s. 515(10)(c) Cr. C., to establish a strict rule regarding the number of years that constitutes a “lengthy term of imprisonment”

some guidance is nonetheless required for the exercise to be undertaken by justices in this regard."

And now 64 and 65: "First of all, since I have found that no crime is exempt from the possible application of s. 515(10)(c) Cr. C., it is self-evident that the words “lengthy term of imprisonment” do not refer only to a life sentence."

"Moreover, to determine, on a case-by-case basis, whether the accused is actually liable for a potentially “lengthy term of imprisonment”, the justice must consider all the circumstances of the case known at the time of the hearing,"

as well as the principles for tailoring the applicable sentence.

But this does not mean that the justice would be justified in embarking on a complex exercise to calculate the sentence the accused might receive:

it must be borne in mind that interim release occurs at the beginning of the criminal process and that the justice must avoid acting as a substitute for the trial judge.

That being said, there will be cases in which a claim of mitigating or aggravating circumstances appears to have sufficient merit for it to be open to the justice to consider it in determining whether the accused is liable for a potentially “lengthy term of imprisonment”.

As far as possible, therefore, this fourth circumstance is assessed subjectively, unlike the second circumstance — the gravity of the offence — which is assessed objectively." -- R. v. St-Cloud paras. 63, 64, 65

"I find that it is NOT likely that this accused would not face potential lengthy imprisonment," his honour says, citing Lich's age, employment. "I find that this contributed to [Bourgeois's] error in law."

We move on to the material change in circumstance, the new proposed surety (REMEMBER THE PUBLICATION BAN, PEOPLE).

"The Crown argues the proposed surety is not a proper surety as she does not lived with the accused and that she had publicly posted a social media post ... that she was proud of the accused."

Justice Johnston notes the Crown asking said surety about the expressed pride. Says the surety agreed that the blockade was against the law, but said she was "proud" of her family member for standing up for what she believed in, not breaking the law.

Justice Johnston says, "I was impressed the proposed surety admitted several things she might have been expected to have disputed. She was clear she believed her family member broke the law."

"The witness, I find, she was sincere when she answered Crown questions, that was busy with her own life ... agreeing that she was busy, though, the witness stated that nonetheless she would find time to ensure the accused applied with terms of bail," Justice Johnston says.

"I find the proposed surety IS credible. I believe her evidence. I believe her that if the accused breaches, the proposed surety would call the police," Johnston says. "I also accept that the proposed surety has very regular contact with the accused."

"It would have been preferable if the proposed surety said something to the accused when she was blocking the roads, I do not believe this makes the proposed surety unsuitable."

Judge says surety is pro-social, leads a hard working life.

"Bail hearings are held quickly and spontaneously, and she was not initially put forward as a surety, but I don't hold that against the accused."

"I find that Ms. Lich requires a level of supervision if she's released," the Justice says, but says he finds the proposed surety can meet that level of supervision Lich returns to Alberta.

He notes that Lich is a salaried employee and highly valued by her employer. That at 49 years old, she's led a crime free life. That the risk of reoffending is about reorganizing. Says the risk in Ottawa has abated, but that doesn't negate the risk completely.

Justice Johnston says that the "risk Ms. Lich poses can be managed, such that she can be released on the secondary grounds."

"The Crown has the onus on the grounds in this de novo hearing, and they have not met those grounds," the Judge says.

Judge notes that's just the secondary grounds -- onto the tertiary grounds, now

He quotes Wagner in St-Cloud again: The fact that detention may be justified only in rare cases is but a consequence of the application of s. 515(10)(c), and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.

Now His Honour is reminding us that us this stage, the accused is still considered innocent.
---
On the de novo hearing, on the strength of the Crown's case, he says the Justice must determine the apparent strength of the Crown's case.

"In applying the law to the case at bar, I found the count alleging that Ms. Lich counseled others to commit mischief is strong," and notes that it's also strong Lich committed mischief herself.

Says Lich blockaded or counseled to blockade downtown, its emergency services, honking and harm to residents, closure of business districts, including the "busy Rideau Centre."

"it is alleged that millions of dollars of lost revenue were sustained," he says. "This accused, Ms. Lich, is but one of a number of accused involved. These are early days of the case. It will be, in the fullness of time, and likely at trial, that the level of involvement of this

accused ... will be assessed." Says he finds it's likely the Crown will likely be able to prove mischief and counseling mischief.

Justice says with that said, it's not an overwhelming case that the most egregious elements will be proved against Ms. Lich.

Justice notes that given that it's now a de novo hearing, the Crown doesn't have to hit the beyond a reasonable doubt bar. Nevertheless, without the most egregious parts of the offences, the Crown doesn't have a strong claim that Lich would face lengthy imprisonment.

On the subject of the gravity of the offences (min. and max. sentence). "Any Criminal Code offence is serious," Justice Johnston waxes (legally) poetic. He discusses now crimes of property, and escalating up through assault to murder.

"The charge of mischief does not break down" like those kinds of physical acts, he notes. "The consideration at this stage involves ... mischief/counsel mischief against more serious offences like aggravated assault, attempted murder."

His Honour says comparing the case at bar against "more serious charges in the criminal code," there's no minimum penalty (and a max penalty of 10 years), and the charge of mischief is overall on the low end.

He says those factors favour release.

#tamaralich #lichbail #truckerbail

His Honour quotes St-Cloud again: "the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person."

"If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account."

For a refresher, you can find St-Cloud here: scc-csc.lexum.com/scc-csc/scc-cs…

Justice J says that downtown was blocked, residents were disrupted; that disruption alleged to have driven some from homes -- he emphasizes the word allege. "It seems without serious dispute there has been significant economic impact," he says.

Says also there was significant interference of the rights to peaceful enjoyment. He quotes Ms. Li's civil affidavit (for the class action she's brought) and the horns, and the damage those caused to Zexi Li.

He goes on to note that Lich herself has not been accused of committing violence, even if others in the convoy has. Justice Johnston agrees with Bourgeois that it's fair to consider the above impacts in the bail hearing.

"Ms. Lich has repeated ... 'hold the line,' appearing to signal to truckers and others continue the blockage of streets," he says.

Justice Johnston notes that tertiary grounds often involve violence or serious drug offences. "None of those circumstances are involved here."

He quotes St-Cloud again -- the facts of that case, an accused who committed a violent assault on a bus driver in Montreal, which left the driver with long-term injuries, which led to aggravated assault charges.

"Those are NOT the facts in this case."

On length incarceration, he notes that there's no minimum penalty, and a max penalty of 10 years for mischief over $5k "The length of incarceration ... involves an assessment of the participation of THIS accused ... and aggravating factors proved beyond a reasonable doubt.

We go over again Lich's age, her employment, and her claimed Metis heritage, and how it may involve Gladue factors based on Canada's heavy incarceration rates of Indigenous offenders. "The sentence would also involve consideration on the impact of residents," he says.

"it's very doubtful it would result in a penitentiary sentence, namely two years or more," Justice Johnston says, adding he says it's likely a conditional sentence could be possible.

He notes that it's unconstitutional to unreasonably deny bail, especially if the sentence is not likely. He says that if bail is denied, it's likely Lich would spend more time in jail before trial than she would if convicted.

In weighing those factors, Justice Johnston says, he's not satisfied the detention of Lich is necessary to meet the tertiary grounds.

"Having found there's no grounds to detain on the secondary ground in light of the surety, I find that this accused ought to be release," Justice Johnston says.

#tamaralich #lichbail #truckerbail

"There is no lesser or intrusive order other than to require release with a surety with conditions," he says.

With SIGNIFICANT conditions, he adds.

"The proposed surety has proposed a cash bail. I find under these circumstances a cash deposit is not required. In fact, cash bail is rare in Canada."

"I take more reliance on the bail plan with this particular surety if this surety posted a non-cash bond -- in other words a promise -- but in my view it needs to be higher to signal to everyone the serious and the need to obey th terms and conditions."

Justice Johnston fixes the bond at $20,000 dollars promise, no cash deposit.

#tamaralich #lichbail #truckerbail

His Honour says, based on surety's statement she'd need to talk to her husband, that if the surety could not meet $20k, the court would have concerns.

"I note that Mr. Chris Barber was released on $100,000 no-cash bond. It appears that Mr. Barber was differently situated financially."

Justice Johnston will also include Lich posting $5k herself

The conditions are:
1. Lich must leave Ottawa with 24 hours.
2. Ontario within 72 hours.
3. Report daily to Ottawa police daily on her travel to AB.
4. Lich shall reside at her residence in AB and not change that residence without court order unless to live with surety

5. Lich is not to associate with others accused, at least including Mr. Barber and Mr. King.
6. Lich is not to post ANY messages to social media, including Facebook, Instagram, TikTok and Facebook.

"It's a restrictive term, but in my view necessary," he says.

7. Lich is not to engage in any protest in COVID-19 vaccine mandates or similar activities.
8. Lich will allow surety access to Lich's electronic devices to ensure compliance; cell phone, laptop, tablet
9. Lich is not to allow any one else to post on soc. media on her behalf

10. Lich is required to report court as required to do so.
11. Lich is not permitted to enter Ontario unless required by court, and must notify Ottawa Police of her location and duration of her stay.

His Honour asks for additional conditions, starting with Crown.

Karimjee mentions change of address, and wants to verify that if Lich moves in with surety, she needs to notify OPS of that move. Judge confirms that's correct.

(This is about how Lich can only move in with her surety with permission)

Karimjee reads no communication order names he wants (apologies for any typos):

Benjamin Dichter
James Bauder
Daniel Bulford
Tyson Billings
Chris Barber
Pat King
Owen Swiderksi
Tom Marazzo
Byron Carr
Kerry Komix

(Unless through counsel for preparation of defence.)

Crown also requests that proof of court order for being in Ontario be given to a peace officer on request, such as a letter from counsel.

Crown asks that Lich also cannot verbally, in writing, or in any way whatsoever give support in any way to the convoy protest.

Karimjee says are the submissions from the Crown.

Magas says she has some comments. "Ms. Lich's proposed surety has not been able to join in," Magas says. "She indicates she's willing and prepared to do the $20,000 bond."

"I could call her on my cell phone and put her on speaker phone," Magas says.

Justice says they can just vacate after and just have Madam Registrar & Crown review after.

"With respect to no social media contact," Magas says, she's provided the court of a case where overly broad blanket bans of social media was onerous for a ban.

Magas quotes, saying the case found "merely sharing family photos on Instagram" would violate such a blanket ban (even though a narrow restriction can be justified).

Magas suggests instead there's a restriction on "the use of social media for purposes of protesting, organizing, anything to do with COVID mandates, and/or that type of condition -- or the other way around, not to use social media except for communication with family, friends."

Magas is now asking for a couple of minutes, because Daniel Bulford has not been charged with any criminal offences with respect to this protest, and wants to know why the Crown wants to add that individual.

She wants to speak with Lich about the list of names on the no-communication order, so we're just taking a brief pause.

#tamaralich #lichbail #truckerbail

Magas says Lich is fine with "through counsel" on the no-contact order, but doesn't want it limited to "for defence." The Crown has no issue with this.

Karimjee now wants to address restrictions on social media. "I respectfully submit that your Honour has engaged in a balancing exercise." Says that if Lich had been detained, she'd have no access to electronic devices.

"Respectfully, the way your honour has suggested, far better protects the community from Ms. Lich directly or indirectly" by issuing a blanket ban on social media, rather than Magas' proposed exceptions for communication with family and friends.

"With respect to the defence request ... I'm mindful of the need to impose conditions that directly arise from the evidence ... in my view, I did give thought to whether that prohibition is too broad or not."

Justice Johnston says the blanket prohibition is not too broad.

Magas requests an exception. "This exception would be to communicate privately with a family, or for purposes of work..."

Justice Johnston says, "for purposes of work, I agree with you. But that doesn't mean on her break she can jump on Facebook."

"I can see businesses using Facebook," Justice Johnston says. "I can't see any work that would use TikTok," he says.

"I don't even want to know what TikTok is," he adds.

Magas now wants to clarify that it doesn't include email. Johnston confirms that email isn't social media.

Karimjee wants communications limited to email and text only, since we'd all seen the employer, and Facebook didn't seem to come up.

His Honour agrees.

Karimjee says if the employer does require social media such as Facebook, Magas can raise it later.

Magas says her client "does not need social media for her work purposes, so that's satisfactory," she says.

Karimjee wants to reinforce that "no writing" and "verbally" conditions extend to the protest. His Honour agrees, Defence has no objection to that.

"Ms. Lich, good luck!" Justice says. "I hope you're prepared to abide by those terms?"

Faintly, from Lich, "I am, your honour."

Now they're shuffling out the court.

#tamaralich #lichbail #truckerbail #freedomconvoy2022

They're just waiting for the surety to log on now. On the hot mic, we learn that Lich needs the washroom for a moment.

Know what? So do I.

There's a bunch of whispering about how the surety has to log in re: the publication ban.

"PLEASE EVERYBODY WHO'S LISTENING, THE PUBLICATION BAN STILL APPLIES!"

Not said into a mic, but so loud you have to get the point.

The confirmed surety now is on, with Ms. Magas telling her that Lich has been released, that the surety must agree to the conditions, and the Registrar can record her assent to those conditions and sign on her behalf.

"We still have 300 (and some? and seven? and seventy?) participants that are still listening," comes a comment.

Open courts, folks. Gotta love 'em.

Well folks, that about wraps it up, I think. I stuck around for the pro forma stuff, but it's just that: pro forma. Lich is released on $20k from the surety and $5k from herself, no cash deposit, under the conditions above.

This time next week I'll see you all from Ukraine.

I may, as I mentioned, post a gofundme. I'm going to a warzone, after all.

I'll make a little thread if I do and then you can all unfollow me and leave me without plate carriers and an IFAK, footing the bill myself.

(I kid, only some of you would do that).

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