On March 7, 2022, Ontario Superior Court Justice John M. Johnston released Tamara Lich from jail, where she had spent the previous 18 days. Tamara Lich is one of the fundraising organizers for the Freedom Convoy of truckers, who protested peacefully in Ottawa against the ongoing violations of the Charter rights and freedoms of Canadians.
Ms. Lich is a mother and grandmother from Medicine Hat, Alberta, working in oil-and-gas administration. She was arrested in Ottawa on February 17, charged with violating Criminal Code section 464 for having counselled mischief: the obstruction, interruption and interference with the use and enjoyment of property. Ms. Lich's arrest on February 17 was not valid because section 464 only applies to situations where someone counsels another person to commit an offence and the offence is not committed. If the counselled offence is actually committed, section 464 does not apply, and the "counselor" can instead be charged with aiding and abetting under section 21 of the Criminal Code. But the alleged crimes of the truckers, if it was indeed a crime to cause some inconvenience to some Ottawa residents, had taken place. Therefore, the offence (if any) had been committed, and therefore section 464 could not possibly apply to Ms. Lich.
It appears that the police recognized their mistake and the illegality of the arrest. The following day, when Ms. Lich was already in jail, police charged her with wilfully obstructing, interrupting, or interfering with the lawful use, enjoyment or operation of property contrary to section 430(1)(c) of the Criminal Code. Ms. Lich did not have a truck with her in Ottawa, so it will be hard for the Crown to prove that she obstructed, interrupted or interfered.
After spending five nights in jail, Ms. Lich was denied bail on February 22 by Justice Julie Bourgeois, a Liberal candidate in the 2011 federal election. Justice Bourgeois' decision to keep Tamara Lich in prison was highly unusual, considering that Ms. Lich has no criminal record and was not charged with a violent offence. People accused of drug trafficking, possessing illegal firearms and violent offences are routinely granted freedom prior to trial.
Justice Bourgeois claimed that Ms. Lich was facing a lengthy prison sentence and used this claim as part of the reason for keeping Ms. Lich in jail. The judge's claim was not grounded in reality, considering the lenient sentences imposed on those who engaged in violent protests at the G20 summit in Toronto in 2010. For example, Robin Henry was not sentenced to any jail time for engaging in a pattern of brazen and wilfully destructive rampage, damaging businesses and risking injury to bystanders. Richard Morano was one of the individuals identified as causing extensive property damage to several businesses, vandalizing a police vehicle, and injuring a policeman inside that vehicle. Yet the pre-meditated wilful destruction of public and private property netted him only seven months in jail.
Considering the lenient sentences imposed on protesters in Toronto who were actually violent, how much jail time can the truckers realistically fear for what they did in Ottawa in February: waving Canadian and Quebec flags, feeding the homeless, picking up garbage, singing the national anthem, dancing in the streets and setting up bouncy castles for children? The notion that Tamara Lich ever faced a lengthy prison sentence is absurd, yet this formed part of the reason for Justice Bourgeois to keep Ms. Lich in jail for more than two weeks.
In a free and democratic society, opponents of a government can criticize laws and policies, as well as politicians, without fearing arrest, imprisonment and loss of access to one's bank account. Under the rule of law, as long as the dissent is peaceful, the dissenters have nothing to fear from the authorities.
In contrast, the jailing of opposition politicians (and other opponents of the regime) is a tool routinely used by tyrants to punish dissent, around the world and across the ages. Hence organizations like Amnesty International were founded to oppose the injustice of jailing people for having the "wrong" political views. Whether the regime could be described as communist, fascist, theocratic or a corrupt banana republic was not relevant.
In Winnipeg on July 1, 2021, protesters proudly and publicly vandalized and toppled a statue of Queen Victoria while police stood by and watched. The vandals were not charged or arrested for their obviously criminal behaviour, namely damaging or destroying property in violation of section 430, the same Criminal Code section that Tamara Lich and other truckers are now charged with. What accounts for this different treatment, other than political bias on the part of authorities who repudiate the rule of law? The same double standard was on display in 2020 when anti-racism protesters violated public health edicts that prohibited large gatherings: these protests were approved by politicians and by health officials, with Prime Minister Trudeau actively participating in one of them.
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. A Globe and Mail article titled "Trudeau will not direct police to break up pipeline protests, sticks to negotiated strategy" noted that the Canadian government does not tell the police what to do operationally, and that police services are under provincial or municipal control. Except when the protesters are in Ottawa, and their cause is the restoration of Charter rights and freedoms that were taken away from us in March of 2020: then we have a national emergency.
As one of the fundraisers for the Freedom Convoy, Tamara Lich was arrested on dubious charges and jailed for 18 days. Nobody can be faulted for viewing her as a political prisoner, jailed for having the "wrong" political views and not because of the fragile charges against her. The Supreme Court ruled in R. v. Antic that bail should be denied only for those who pose a substantial likelihood of committing an offence that endangers public safety. But when dealing with a vocal opponent of the regime, the Banana Republic of Canada cares little about what the Supreme Court might say about the presumption of innocence, and how it applies to those who have not been convicted of any offence.
Ms. Lich is out of jail and on her way back to Alberta, but she is only partly free. Her bail conditions include not protesting, not using social media, and not having anyone post on her behalf. These conditions obviously violate her Charter freedoms of expression, association and peaceful assembly. Ms. Lich has no criminal record. She has consistently and repeatedly urged protesters to be peaceful and respectful. She poses no risk to public safety. There is no rational basis to justify the imposition of these severe restrictions on her right, as a Canadian citizen, to exercise her Charter freedoms.
Lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms (jccf.ca) which is providing legal assistance and representation to Tamara Lich and other Freedom Convoy protesters.