Coutts Two Trial Begins With Evidence that is Primarily Hearsay.

The latest in a long list of questionable proceedings in a case that has lasted for over a very long two years for the accused

The criminal trial that never should have been finally got underway in Lethbridge, Alberta last week. Of course, it once again had to be delayed a few days, due to some scribbling on the sidewalk outside the Lethbridge courthouse that caused the Crown to have vapours over, citing the incident as a ‘threat’ to the jury. I can say no more about that because that portion of the trial is under a publication ban. But finally, on Thursday June 13, 2024 the trial of the Coutts Two, who had previously been known as the Coutts Four began in earnest, with the jury impaneled to hear the opening arguments from the Crown and the defence attorneys and the first testimonies from Crown witnesses, of whom there will be many – primarily from the RCMP. 

Tony Olienick and Chris Carbert (with his children)

On trial on charges of conspiracy to commit murder of police (RCMP members) are Tony Olienick and Chris Carbert. They are two Alberta men who were caught in a dragnet of RCMP operations and raids that occurred during the Coutts border blockade protest just outside of the border town of Coutts, Alberta, which was part of the larger Freedom Convoy protest which took place in Ottawa in February of 2022. Protesters were calling for an end to the draconian COVID mandates and restrictions that had been imposed on Canadians by the federal and provincial governments for two long years. Olienick and Carbert were arrested and charged with the conspiracy to murder police along with two other men – Jerry Morin and Chris Lysak.

However, this past February, after spending 723 days in custody as they were denied bail, all the original charges against Morin and Lysak were suddenly dropped as they plead guilty to minor firearms offences. Under normal circumstances, for first offenders, these charges would have resulted in a fine or probation—not two years of hard time in remand custody where the luxuries of an actual prison, such as proper medical care and nutrition, and access to some form of exercise facilities are normally available to inmates. Such a major development surely must have weakened the Crown’s case, given that conspiracy charges generally involve a group of accused, not just one or two individuals, yet the chief Crown prosecutor, Steven Johnston seems determined to make examples of these last two men. Their arrests are what the Trudeau government used to justify its use of the Emergencies Act on the Freedom Convoy in Ottawa, so a conviction would be a feather in Johnston’s cap and help the government save some face, given that a federal court has since ruled its invocation of the Act was illegal and unconstitutional. 

All four of these men, according to the RCMP, were identified as ‘key’ members of a larger ‘cell’ of bad actors involved in a plot to overthrow the Canadian government. In media briefings the RCMP indicated that there were other ‘unidentified suspects’ of a purported ‘criminal organization’ that the four men allegedly belonged to. Yet, despite assurances by RCMP brass that these ‘unidentified suspects’ would also be rounded up through the intrepid investigative efforts of the RCMP, no such suspects were ever found, or were arrests ever made. This left  only the four men originally arrested on the conspiracy charges, until this past February when Morin and Lysak were released because, it would seem, that the Crown did not have the evidence it needed to bring them to trial. They spent two years behind bars despite this grievous error, but there is nothing unusual about that nor any moral outrage on the part of the mainstream media, the justice system, or even the federal opposition party for that matter.

Delay, After Delay During Pretrial Phase

The lack of due process for the men, from a legal perspective, is also scandalous. June 12, 2023, was the original trial date for the men, almost a year to the day that the actual trial is now beginning in earnest. So why, one might ask, has it taken two years to bring the case to trial? After all, under Canada’s justice system, the accused are entitled to a speedy trial. One would think that even a year’s delay in bringing a case to trial would seem unduly long, particularly when said suspects were not granted bail–in the justice system, where under the Trudeau government, bail is even granted to accused cop killers. Yet, now that it’s been two years no one has even batted an eye over this travesty. Not the justice system, not the government and certainly not the media. But that seems about par for the course for this whole bizarre situation. And bizarre it has been from the get go.

Back when trial was set to begin in June of 2023, the court spent weeks dealing with various legal applications and motions that stemmed from previous court proceedings as well as questionable behaviour on the part of the Crown. These motions were all put forward during the pretrial phase of the proceedings, before a jury has been selected and impaneled. Defence attorneys for the accused sought a publication ban on the Information to Obtain (ITO) documents the RCMP used to get search warrants for the raids they conducted in Coutts. The ITOs are documents wherein police, under oath, cite for the presiding judge the reasons they believe they require a search warrant to obtain evidence related to the commission of a crime. In this case the ITOs resulted in search warrants that ultimately led to the arrest of the men and the seizure of a cache of weapons that has been associated with them since the day of their arrests — pictures of which were widely displayed by the media.  The defence argued that the ITOs used to obtain said warrants contained little more than hearsay and conjecture primarily from female undercover RCMP officers who had infiltrated the protest — which could not be proven because they had not been tested in court. (This will be further explained later in this article)

The defence requested the ban, which was granted by the presiding judge, Justice David Labrenz, because, the defence argued, such biased information could prejudice a jury. However, all that information that had already been unsealed and released to the media, and thereby the public by the previous judge during the arraignment of these men, so it was somewhat of a moot point.

This 'cache' of weapons wrongly associated with the men was widely published by mainstream media

The media had already had a field day with the material, in which they essentially already tried and convicted the men in the public sphere. Nevertheless the defence felt it was important to make the effort to avoid having the information make headlines yet again. It should be noted, however, that despite this ban, none of the media outlets who had made the spurious allegations against these men or published the photo of the gun cache ever removed their reports or photos from their websites. 

Crown Accused of Failure to Disclose Evidence and Prosecutorial Misconduct

The defence lawyers then went on to make further motions accusing the Crown of failing to provide full disclosure of evidence, failure to provide timely disclosure of evidence and failure or refusal to respond to additional disclosure requests from the defence. They argued that the men’s constitutional rights were violated due to this wilful lack of disclosure by the Crown, as it hampered the ability of the accused to make full answer to the charges against them. Following on these motions, the Crown did provide further disclosure of evidence, but in that latest disclosure in July of 2023, the Crown, perhaps in its haste make up for its tardiness, mistakenly provided some information that it had meant to redact, but neglected to do so. That unredacted information resulted in the defence making the claim that the Crown prosecutor, Steven Johnston, had given both false and misleading instructions to the RCMP leading to the arrests of the men.

The defence went on to say that the Crown had acted illegally, asserting that this material and more information related to these prosecutor-police communications should be released given the import of what they revealed. While such information is usually covered by solicitor-client privilege, meaning it is meant to be confidential between the client (RCMP) and the solicitor (Crown), the defence argued it should be made public given that, in their view, the Crown had improperly instructed the police. The Crown countered this argument  with a ‘surprise’ affidavit – another late disclosure – that was ultimately not admitted as evidence. The judge then adjourned the case, to give himself time to review that defence’s application to have these communications between the Crown and the RCMP made public. The still ‘secret’ documents were placed in a sealed envelope, awaiting Justice Labrenz’s decision. Then in another surprising move the Crown prosecutor Steven Johnson and his co-counsel were both suddenly recused from the case. 

What followed was another example of a complete disregard for the men’s situation, as Justice Labrenz, after ruling that the sealed package be delivered to his chambers by the Crown prosecutor (who had replaced Johnston) forthwith, called another adjournment because he would be going on vacation for a few weeks before he could return to contemplate how to proceed with this sealed package of what appeared to be pretty damning information about the Crown prosecutor and possibly the RCMP. So the men would have to spend at least another month in jail before returning to trial. The pretrial proceedings on this ‘package’ resumed in September, with the decision on whether the contents of that package would be made public still in limbo and then the whole trial, again went on hiatus until November of 2022, meaning that the four men, not yet convicted of any crime, would spend another two months in remand custody. But again, nothing to see here, at least according to mainstream media who had ignored the case after the initial arraignment of the men. 

Pretrial Publication Ban Issued by Supreme Court

Then in late October, just weeks before their trial was to resume, the Supreme Court of Canada issued a ruling that essentially placed a publication ban on all pretrial proceedings in Canada. Interestingly enough their ruling was based on the notion that, “Publication of information that comes out at pretrial conferences may very well be prejudicial to the fair interests of the accused”. 

Unfortunate that such a ruling had not applied to the Coutts Four at their initial arraignments, but how serendipitous that it now would apply to the pretrial proceeding around that mysterious sealed envelope that may contain some damning information about the Crown. It should be noted that the Supreme Court’s ruling was based on a completely different case and had nothing to do with the Coutts Four proceedings. 

Nevertheless, when the pretrial proceedings resumed in November, the publication ban was in place and all matters related to the sealed envelope could no longer be made public. Independent reporter Mocha Bezrigan attended those proceedings, which were still open to the public and the media, and later posted the following statement on X: “I am in the courtroom of the Coutts Four right now, and the things that are taking place would be the magnitude of a bombshell in the public arena, but I can’t report on it like I had been able to during the July’s pretrial, due to the automatic ban.”

The Crown prosecutor Steven Johnston, who suddenly miraculously reappeared as chief prosecutor on the case, after his recusal last July, was also quick to remind court attendees that punishment would be swift and severe should anyone consider violating this ban. So, until this day, as the actual trial for the remaining Coutts Two begins, the contents of that envelope and whether it was ever unsealed or not remains a mystery. A mystery, that again, not a single member of the mainstream media is interested in questioning. 

Then, of course, Christmas and New Years rolled around meaning another lengthy adjournment of the case, which meant these men would be spending their second Christmas behind jars, and away from their families. Just a brief reminder that three of these men – Carbert, Morin, and Lysak – are fathers whose children would once again be missing them for Christmas. Chris Carbert, in early December of 2023, made a bail application, with the faint hope he might spend Christmas with his children. He had to wait until January 2024 to learn he would not be released. The presiding judge, Johnna Kubick, a federal Liberal appointee, who has donated to the Liberal party at least 26 times – in a remarkable case of cognitive dissonance – cited that releasing Carbert would cause the public to lose faith in the justice system! Quite a remark, considering the train wreck this entire case has been to date!

Defence Wants RCMP Search Warrants Thrown Out

The pretrial resumed in February of 2024, with all proceedings remaining under a publication ban. What could be reported on was an application filed by the defence to have the search warrant that was executed against the men by the RCMP to enter their trucks and trailers thrown out. The defence argued that the Information to Obtain (ITO) documentation provided by the RCMP to obtain the warrant was both insufficient and based on hearsay. This was primarily due to the fact that much of the basis for the ITO’s relied on generalized handwritten notes – and only notes (no wire-taps/no audio recordings) – prepared by those female RCMP Under Cover Officers (UCO) who infiltrated the Coutts protest to monitor the actions of the protests and to perhaps even agitate the situation. Proceedings were then adjourned until March, awaiting the judge’s decision on the motion. Again, due to the publication ban, which warrants were tossed by the court, will likely only come to light during the trial, which is where we are now.

Thus the trial begins, with the accused, who are also prisoners, sitting inside a glass enclosure, built, one must assume especially for them. Their defence lawyers did request two things for these men, the first was that the shackles they must wear be removed before they appear before the jury and second that they be given cushions to give them some comfort from the hard metal benches they must sit on in that enclosure for hours on end. Now, Justice Labenz did take time to explain to the jury that despite the fact that these men are prisoners, and have been held in remand custody for the past two years, this does not change the fact that they are innocent until proven guilty. If the irony of that statement is lost on anyone, including the judge himself, they must be lacking some finer reasoning skills, but I digress.

The Crown in its opening statements to the jury, which were widely reported in the mainstream media, who now have taken a sudden interest in the case after two years of wilfully ignoring it, were quite dramatic. The Crown prosecutor who gave the opening statement, Matt Dalidowicz told the jury that Olienick and Carbert had, indeed, conspired to kill police officers and believed they were justified in doing so. “They planned and prepared for what they believed would be an inevitable, violent event. They believed, in their own minds, that they had the right to act violently in response to the police enforcing the law to end the blockade. They saw this as ground zero.” According to the Crown, the RCMP faced a “challenging situation” when the blockade began in January of 2020. He then went on to explain that while they had talked to “protest leaders,” (would that be the Coutts Three now convicted of mischief over $5000), they learned more through their undercover officers (UCO).

Those would be three attractive female RCMP members they had assigned to investigate the activities at the Coutts blockade. Dalidowicz told the jury that these UCOs had uncovered a ‘group’ within the blockade that was planning something much more sinister than blocking the border. “They discovered they were no longer simply dealing with a mere protest. They discovered a plot to kill police officers, if police enforce the law to end the blockade.” The how, and what and why of this plot, one would assume will be what the Crown will reveal as it presents its case to the jury in the coming weeks.

Testimonies of Undercover Cops Amounts to Nothing More than Hearsay

But there is one fly in the ointment regarding the Crown’s assertions about this ‘plot'. It is predicated on the testimonies and evidence of what these three UCOs ‘uncovered’ and undoubtedly reported to their superiors, one would think. Yet, these police women, who were given this assignment, to investigate, infiltrate and gather evidence on any suspicious activities around the protest, used no wires or recording devices to record the conversations of, or with, any of the protesters.

So, it is only their memories and perhaps notes of what they observed or heard that they are relying on. Is that not simply what would normally be termed hearsay evidence in a court of law? Also, wasn’t this the evidence that the defence was calling into question on the ITO documents for the warrants it wants tossed. Strangely enough as the mainstream media were recounting the testimonies of these UCO’s and their ‘conversations’, primarily with Tony Olienick, they didn’t think to mention that none of the evidence they presented could be backed up with recordings of said conversations. The were reporting it as though it did come from wiretaps or recordings, but that has been par for the course on the mainstream media’s laziness in reporting on this case.

The testimonies of these three women were unusual which added more drama to the court proceedings. Because these RCMP members continue to operate as UCOs in other operations, their identities had to be protected, therefore they gave their testimonies in a separate courtroom where only the judge, lawyers, the jury, the defendants and the courtroom staff were present. The public and media remained in another courtroom where they could only hear the audio of their testimonies. 

During their testimonies they were asked whether the RCMP generally used wiretaps and body cameras during undercover operations, to which they replied they usually did. As to why they did not do so in Coutts, their only answer was that did not know, and that someone else would have to answer that question. The question in that regard is, are their going to be senior RCMP officers called to testify who will be able to offer any type of reasonable explanation for such an oversight? There should be, particularly in such a serious a matter where two men could face life in prison if they are found guilty based on nothing more than hearsay evidence from these UCOs based on memory or their interpretation or perhaps misinterpretation of said conversations and notes, from over two years ago!

The testimonies of the three seemed to focus in on Olienick who seemed to have interacted with them more than the other men. As a matter of fact they all indicated they had little, if any contact with Carbert, which causes one to wonder why he is on trial at all. Many of the things the UCOs testified to in their conversations with Olienick seemed to centre more on how he felt about the police presence there, rather than any particular plot against them. Any such words spoken by Oienick in that regard could also be open to misinterpretation and innuendo as was revealed under cross examination by the defence.

But coming back to Chris Carbert, who the UCO’s admit they had little if any contact with. Where or how does he fit into the picture? Well, the Crown’s problem is that the in a ‘conspiracy’ charge, more than one person has to be involved in the plot. When Lysak and Morin were offered and took a plea deal, that left only Carbert and Olienick to keep the ‘conspiracy’ charge alive. So, it would seem that Carbert is being brought along simply to secure such a conviction. But if the evidence against Carbert is so thin, how can a jury possibly convict him? And if they can’t convict him, then how can they convict Olienick, alone, on a conspiracy charge? That seems to be quite a conundrum. How the Crown plans to tackle that conundrum remains to be seen, but it certainly can’t be based on the what amounts to hearsay evidence from three undercover police alone. Perhaps justice will finally prevail for these men and the jury will deliver a not guilty verdict. Or better yet, before it comes to that, the case will be thrown out of court for the sorry sham that it has been from the get go.