Prominent Freedom Convoy participant spent 49 days in jail: R v. Tamara Lich

Tamara Lich was in Ottawa in January and February of 2022 as one of many Canadians peacefully protesting for the return of our Charter rights and freedoms, taken away from us two years ago. Ottawa’s police chief, Ontario’s premier, and Canada’s prime minister took turns denouncing the truckers as dangerous, racist, violent, Nazis, white supremacists, and criminals. In response to this vilification, the peaceful protesters (of many different faiths and ethnicities) shoveled snow, picked up garbage, fed the homeless, waved Canada and Quebec flags, danced in the streets, sang our national anthem, and set up bouncy castles for children.

Tamara Lich called on Canadians to exercise their Charter freedoms of expression, association, and assembly, and to do so peacefully and respectfully. In return, she was criminally charged with counselling to commit a criminal offence. A mother and grandmother, Tamara Lich has no criminal record and poses no danger to anyone. There is simply no justification for stripping her of the basic rights and freedoms that every Canadian citizen enjoys.

On February 14, 2022, Prime Minister Justin Trudeau declared a national emergency, in spite of the fact that Ottawa police had not arrested any of the peaceful protesters or charged anyone with a crime in the preceding weeks.

On February 17, 2022, Ms. Tamara Lich was arrested in a video seen around the world, handcuffed on a dark winter street in Ottawa and calmly walked away, repeating a famous tagline of the Freedom Convoy, “Hold the line”, back to a nearby supporter. She was charged with mischief, counselling mischief, intimidation, counselling intimidation and obstructing a peace officer and counselling obstruction. The day before Ms. Lich was charged and jailed, Ontario Superior Court Justice Hugh McLean had decreed that Ms. Lich and other Defendants in a civil action to stop honking in downtown Ottawa were “at liberty to engage in a peaceful, lawful and safe protest.”

Ms. Lich was jailed for 18 days, and eventually released on bail conditions that prohibited her from using social media and from exercising her Charter rights and freedoms to oppose vaccine passports and lockdown policies.

“In our criminal justice system – innocent until proven guilty – and for someone with no previous criminal charges, it is our view that these revised bail conditions still excessively restrict Ms. Lich’s fundamental Charter rights of speech, assembly, association, and political advocacy,” said lawyer Eva Chipiuk.

“The extent to which the Crown has pursued Ms. Lich is troubling. Homicide detectives, crown attorneys, and scarce court time are being expended on persecuting Ms. Lich and her peaceful activism against two years of repressive government lockdowns and mandatory vaccination policies,” added Ms. Chipiuk.

On March 7, 2022, Ontario Superior Court Justice Hon. John M. Johnston released Tamara Lich from jail in accordance with her Charter right to be presumed innocent unless and until proven guilty, where she had been detained since February 17, 2022.

“The February 22 decision of Justice Bourgeois to keep Tamara Lich in prison was highly unusual, considering that she has no criminal record and was not charged with a violent offence. People accused of drug trafficking, illegal firearms possession and violent offences are routinely granted freedom prior to trial,” stated John Carpay, president of the Justice Centre.

Since early February, the Justice Centre had provided legal advice and representation to truckers and others who peacefully exercised their Charter freedoms of expression, association and assembly in Ottawa. The Justice Centre also set up a network of criminal defence counsel to advise and represent those charged with offences.

While the bail conditions aligned with Ms. Lich’s Charter right to be presumed innocent, they also violated her Charter freedoms of expression, association and peaceful assembly through the following bail conditions:

“You are not to log on to social media or post any messages on social media. … You are not to allow anyone else to post messages on Social Media on your behalf or indicate your approval for any future protests so long as this release order is in place. …You are not to engage in organization or promotion of anti-COVID 19 mandate activities and Freedom Convoy activities …  You are not to verbally, or in writing, financially, or by any other means, support anything related to the Freedom Convoy. …”

The violation of a bail condition can result in a fine, imprisonment, or both.

An appeal of the bail conditions has been filed and makes the following arguments:

“A ban on all forms of expression on social media or to even log in to social media and on all forms of organization or promotion of anti-covid19 mandates is incompatible with the principle of restraint, and also incompatible with perfectly legitimate forms of expression on social media or otherwise, such as expressing a political view about the lockdown measures, communicating with family and friends or viewing posts from other individuals.

As the “Freedom Convoy” is no longer in Ottawa, there is no longer any need for a condition banning any support of the “Freedom Convoy”.

The conditions imposed do not have a rational connection to the risk to public safety or the commission of further offences.

His Honour failed to ensure that the conditions imposed were clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention in s. 515(10).”

Ms. Lich, a mother and grandmother from Medicine Hat, Alberta, who works in oil-and-gas administration, was arrested in Ottawa on February 17, charged with violating Criminal Code Section 464 for having counselled “mischief” (defined as the obstruction, interruption and interference with the use and enjoyment of property). The following day, while Ms. Lich was already in jail, police also charged her with willfully obstructing, interrupting, or interfering with the lawful use, enjoyment or operation of property contrary to section 430(1)(c) of the Criminal Code. Additional charges were laid today.

“The bail conditions are excessive and unnecessary violations of the Charter rights and freedoms of Tamara Lich,” states lawyer and Justice Centre president John Carpay.

“We have a double standard, contrary to the rule of law. The Emergencies Act was not even considered, let alone used, when protesters shut down railway lines in BC, Ontario and Quebec in February and March of 2020,” notes Mr. Carpay.

“As one of the organizers of the Freedom Convoy, Tamara Lich was arrested on spurious charges and jailed for 18 days. Nobody can be faulted for viewing her as a political prisoner, jailed not in respect of any real crime but for having the “wrong” political views,” concludes Mr. Carpay.

On March 24, 2022, a Notice of Application was filed on behalf of Tamara Lich appealing the bail conditions imposed on her by the Ontario Superior Court.

The Justice Centre reviewed the decision of Ontario Superior Court Justice Kevin Phillips released on May 25, 2022 regarding the appeal of Tamara Lich’s bail conditions. In a decision given orally on May 25, 2022, Justice Phillips said the Courts are not “thought police” and are not in the business of controlling political views. While Justice Phillips upheld a sweeping social media ban which Ms. Lich’s lawyer objected to, he also said that Ms. Lich has the presumption of innocence and did not find that she violated any of her previous bail conditions.

Given the changes in circumstances since her release in March, Justice Philips set new bail conditions for Tamara Lich: keep the peace and be of good behavior; Ms. Lich is prohibited from communicating with other pro-freedom activists, using social media, organizing or aiding protests, and entering the downtown part of Ottawa unless for court.

During the bail appeal hearing that took place on May 19 and 20, 2022, Assistant Crown Attorney Moiz Karimjee argued that Ms. Lich should be put back in jail because she had accepted the Justice Centre’s 2022 George Jonas Freedom Award. Mr. Karimjee suggested that Ms. Lich had breached her bail conditions by agreeing to attend the June 16 Justice Centre dinner in Toronto, however, there was no evidence before the Court that she planned to attend in-person. When Ottawa police sergeant Mahad Hassan was called to give evidence for the Crown, he had no evidence other than a post on the Justice Centre website about the June 16 dinner. Sgt. Hassan speculated with his own opinion that it was a reasonable inference that Ms. Lich was attending at the annual award, which features VIP tickets to meet the keynote speaker, famous National Post columnist, Rex Murphy.

Lawrence Greenspon, counsel for Ms. Lich, argued for the lifting of the bail conditions, specifically the ban on social media, which prevented Ms. Lich from exercising her Charter freedoms of expression and association. He argued that a finding in favour of the Crown would put the criminal justice system in disrepute.

Justice Philips said, “No court will ever seek to control the manifestation of political views. The courts are not the thought police and are only meant to control conduct.” However, Justice Philips justified leaving the complete social media ban in an attempt to “prevent toxic group think.”

On June 27, 2022, Ms. Lich was arrested, again, this time in Medicine Hat, Alberta, on a Canada-wide warrant for one count of allegedly failing to comply with a release order. The Ottawa Police Service said Tuesday June 28, that it sought the warrant for Lich’s arrest and that it was bringing her to Ottawa, where she was scheduled to appear in court. She was held in custody and on Tuesday morning appeared in court, where she was ordered to be remanded for six days, it said.

At the time, Ms. Lich’s legal counsel, Eric Granger, told the National Post, “We are not aware of anything that could have prompted this and are surprised by this development given the recent bail review hearing in Ontario where Ms. Lich’s positive record for complying with her conditions was one reason why some of her conditions were relaxed at that time.”

On July 5, 2022, Ms. Lich appeared in an Ottawa Court remotely from prison. The Justice Centre continued to support her legal defence through the representation in court by well-known criminal lawyer Lawrence Greenspon and Eric Granger.

After an all-day hearing, the Court reserved its decision until Friday, July 8. Justice of the Peace Paul Harris stated he had copious notes and needed time to consider his decision.

Crown Prosecutor Moiz Karimjee argued that Ms. Lich was in breach of her bail conditions. The evidence presented was a video clip showing her in what was described as a three-second congratulatory interaction with Tom Marazzo, another participant in the Ottawa convoy, immediately after she returned to her table following her acceptance speech, at the Justice Centre’s dinner in Toronto on June 16, 2022. One of Ms. Lich’s bail conditions states she cannot communicate with Tom Marrazo (and certain other individuals), except in the presence of legal counsel.

A photograph was also introduced into evidence by the Crown, of Ms. Lich with five other guests in a group photo, with Ms. Lich standing beside Mr. Marazzo. The photo was taken by a dinner guest and posted to Facebook. Ms. Lich’s surety, who cannot be named due to a publication ban, testified she asked Ms. Lich about the photograph and that Ms. Lich told the surety that her lawyers were present when the photograph was taken.

At one point, the defence objected to Mr. Karimjee calling the George Jonas Freedom Award “the so-called freedom award”, and he was chastised by Justice Harris.

Mr. Greenspon asked the Crown’s only witness, Ottawa Homicide Detective Chris Benson, if he knew of any other evidence that Lich and Marazzo communicated before or after the brief interaction in the video, which took place in “less than three seconds”, to which he replied “no.”

Mr. Greenspon asked the detective if he was aware that some lawyers from the Justice Centre for Constitutional Freedoms were present, some of whom are acting as her lawyers in civil matters, and that she may have had criminal defence lawyers present at the dinner. The detective replied he did not know who Ms. Lich’s lawyers were, and stated he could not identify them. On questioning, Detective Benson was also unable to identify Justice Centre President and lawyer John Carpay who was seated at the table with Ms. Lich.

Mr. Greenspon told the Court, “This is the third time the crown has tried to incarcerate Ms. Lich, this time for a three-second interaction, and a photo. The prosecutorial response to this far exceeds the severity of the alleged breach.”

Ms. Lich had by this point spent a total of 27 days in jail, despite having no criminal history or record, on charges that do not involve violence. The Court heard evidence from Detective Benson that Mr. Benson and another senior Ottawa police homicide detective were sent to Alberta on Wednesday, June 29, 2022 to retrieve Ms. Lich. She was flown to Ottawa for a second bail hearing and was in jail another nine days.

Sending two senior homicide detectives across country to pick up Ms. Lich was something Detective Benson admitted he had never seen in 20 years of policing.

“The police have a duty to inform themselves and investigate the circumstances surrounding the alleged breach. It seems like in this case, nothing was done apart from viewing a video and a picture posted to Facebook. Homicide detectives, crown attorneys, and scarce court time are being expended on persecuting a mother and grandmother for her peaceful activism against two years of repressive government lockdowns and mandatory vaccination policies,” stated lawyer Eva Chipiuk.

“A person who is arrested or put in prison because of his or her political beliefs is a political prisoner. This also holds true for anyone who is wrongfully arrested under trumped-up criminal charges when the real reason for the arrest is having publicly and peacefully opposed government laws, policies or practices,” wrote Justice Centre President, John Carpay.

“Banana republics and fascist dictatorships do not respect the rule of law. Likewise in Canada, the law is not applied equally to all. Protesters for environmentalist, aboriginal and anti-racist causes can get away with criminal activity because governing authorities sympathize with these causes. For example, on July 1, 2021, protesters proudly and publicly vandalized and toppled a statue of Queen Victoria at the Manitoba Legislature while police stood by and watched… In stark contrast, when Canadians protested peacefully in Ottawa against the ongoing violation of their Charter rights and freedoms, a national emergency was declared. Protesters were trampled by police horses and beaten by police truncheons, people were arrested and jailed, and hundreds of Canadians suffered the freezing of their bank accounts,” continued Carpay.

Ms. Lich was released from jail on July 26, 2022. She spent 49 days in jail, despite having no criminal history or record, on mischief-related charges that do not involve violence.

“Madam Constable, take those shackles off.”  These were the instructions given by Justice Andrew Goodman of the Ontario Superior Court to the police officer responsible for Ms. Lich.

Justice Goodman overruled the prior decision of a Justice of the Peace, who had incarcerated Tamara for allegedly breaching the conditions of her bail.

Justice Goodman noted, “The likelihood to re-offend and the risk to the community remains low. While on release, there has been strict compliance with the conditions, save for the picture with Mr. Marazzo, and there is a very live question about whether there was a breach at all.” Justice Goodman added, “I trust Ms. Lich can be trusted to abide by the terms of her bail conditions.” Tamara was released on the existing amount of $37,000 in bond without deposit. The Judge noted, “Counsel is well aware that accused persons facing more serious indictable offences and with breaches of release terms are granted bail.”

“Ms. Lich is not charged with sedition or inciting a riot,” noted Justice Goodman. “While the protests were of national import…the charges here relate to minor offences in the criminal code. I find it highly unlikely this 49-year-old woman with no criminal record…would spend any more time in jail.”

While no longer in jail, she remains much like a political prisoner: unable to exercise her Charter freedoms of expression, association, and peaceful assembly. All of this was due to her having the “wrong” political views, and not because of the fragile charges against her.

Ms. Lich’s legal saga continues with the ongoing trial for her criminal charges, with co-accused, Chris Barber. Her legal counsel is now being supported by the Democracy Fund. The Justice Centre continues to support Chris Barber. Their trial that was originally schedule for 16 days beginning on September 5, 2023, has exceeded 30 days and continues in January 2024. For more, visit R v. Chris Barber.

The Justice Centre continues to defend Tamara Lich in the $300-million class action against Freedom Convoy participants and donors. Read more at Zexi Li v. Barber, Lich, et al.

[Image by The Canadian Press/Justin Tang]