Does Canada Have a Protest Problem?

Or does the Trudeau government have a problem with certain protests?

As the trial of Tamara Lich and Chris Barber, the de facto 'leaders’ of the Freedom Convoy, resumes in Ottawa, just a few weeks short of a year from when it commenced last September it may be time ask whether the final verdict on their case should be viewed as a test for the right’s of all Canadians to protest their government. If they are found guilty it could and should have many Canadians asking the question.. Does Canada and its Courts Have a Protest Problem? Or is it just the Trudeau government that has a problem with certain protests?

Section 2(c) of Canada’s Charter of Rights and Freedoms guarantees Canadians the right to freedom of ‘peaceful assembly.’ It is one of our very fundamental freedoms protected by the Charter, giving Canadian’s the right to gather with others and express ideas. It doesn’t say what ideas they may express, or if anyone else, including the government has to agree with or approve of their ideas. Yet, in the aftermath of the Freedom Convoy and what happened to many of those involved in what was likely the largest ever peaceful assembly this country has every seen, one has to wonder whether some Canadians do still have that Charter right – or whether it depends on what you’re protesting or what ideas you express when it comes to how the Trudeau government, and now the Canadian courts, in particular, view it or respond to it.

While Lich and Barber are the most high profile pair from the Freedom Convoy many others took part in the peaceful protest who were also arrested and charged with a range of ‘offences’, the most common of which were public mischief, counselling to commit mischief and/or mischief over $5000. These charges can be very ambiguous as they cover a ‘catch all’ of ‘allegations’ related to damaging public or private property, interfering with the use of property and even interfering with the enjoyment of property, or ‘counselling’ others do so. Such actions can be widely interpreted by police or the Crown in the ‘application’ of the law when it comes to pressing charges against individuals and that was certainly the case when it came to the Freedom Convoy, and its offshoots, particularly the border blockade protest that took place Coutts, Alberta. Almost all the charges laid stemmed from the latter – perceived ‘interference with property or the enjoyment of property’ because there was no physical damage to property unless you take into account the damage police did to property while making the arrests.

There have been other protests in Canada, that have certainly interfered with the use of property and even damaged both private and public property but they have not received the same harsh treatment the Freedom Convoy did. The pro-Palestinian/anti-Israeli protests that have been going on none stop across the country, since October 7th have certainly committed offences that equate to public mischief such as harassing customers at Jewish owned businesses, defacing Jewish owned property and taking protests into shopping malls and harassing customers. Yet there have been no mass arrests made or charges laid, and no Emergencies Act invoked in these protests, which have certainly been disruptive and some cases guilty of promoting antisemitic hate speech and they have gone on for a much longer period of time than the convoy protests. What about the burning of close to one hundred Christian churches over the past couple of years in the aftermath of what have since been proven to be false claims of the ‘discovery’ of ‘mass’ graves of native children at the sites of a residential schools? Yet few of the activists responsible for these crimes of arson and vandalism have been identified or arrested and Trudeau’s response to their actions was that it was ‘understandable.’

Back in 2020, when Wes’suwet’en hereditary chief’s opposed the construction of pipelines on what they deemed their lands, indigenous activists and supporters protested by blocking major railway lines across the country for weeks on end, and in some cases by setting fires to the tracks. Near Belleville, Ontario, in February of that year, members of the Mohawks of the Bay of Quinte First Nation blocked the Canadian National Railway line north of the Tyendinaga Mohawk Territory by igniting fires along the tracks. Masked protesters, at one point, actually set fire under a moving train by igniting wooden skids as the train passed by. While Trudeau condemned their actions as ‘reckless and unsafe’, few arrests were made or charges laid, despite this being a blatant criminal act of mischief over $5000, and likely reckless endangerment of life. Instead he commented that, “It was extremely concerning to see people endangering their own lives and the lives of others trying to interfere with the trains, but again we are continuing to work, as we have over the past week, to resolve this.”

Yet, Trudeau gave no such quarter to the Freedom Convoy protesters who endangered no lives and destroyed no property when they converged on Ottawa to protest the dictatorial COVID-19 restrictions and mandates imposed by his government. Organizers cooperated and worked closely with the Ottawa police to ensure that traffic disruptions were minimal and traffic lanes were left open to allow emergency vehicles unfettered passage. Instead, he stubbornly refused to meet with the convoy leaders, falsely accused them of being racists, extremists, and even Nazis, and then invoked the Emergencies Act to send riot police into downtown Ottawa to violently remove the protesters, while also giving his government the unprecedented power to seize their bank accounts. Some two hundred people were arrested and charged with various ‘offences’, yet according to a National Post article, the names of the majority of those people have never been publicly released, for a variety of reasons, despite the fact that they should be a matter of public record. The newspaper was told by police to file a freedom of information request to get the names of the arrested protesters.

However, the names of some of those who were charged are known, due to media coverage of their arrests and their trials. Most were charged with mischief or counselling mischief, often together with a host of other offences.  

Ottawa Freedom Convoy 

Tamara Lich and Chris Barber – charged with mischief, intimidation and offences related to counselling others to break the law – currently on trial in Ottawa. 

Pat King, Tyson George Billings (Freedom George), and Jay Venderveir

Pat King - charged with mischief, counselling to commit mischief and obstruct police – trial completed, verdict pending. 

Tyson George Billings (Freedom George) – plead guilty to counselling to commit mischief – sentenced to 6 months in prison (equated to time served 106 days in remand)

Jay Vandervier – convicted of mischief – given a conditional sentence that included 45 days of house arrest, followed by 45 days of curfew and 12 months probation. 

James Bauder – charged with mischief to obstruct property, obstruction a peace offer and disobeying a lawful order – trial status unknown

Randy Hillier –charged with mischief, counselling mischief and obstructing a peace officer – trial currently underway in Ottawa

Allan Remley – acquitted of counselling mischief – verdict overturned and retrial ordered on appeal from Crown.

Christine Decaire – acquitted of mischief – verdict overturned and retrial order on appeal from Crown.

Scott Hockaday – plead guilty to mischief – sentencing unknown

Evan Blackman – acquitted of mischief and obstructing police – verdict overturned and retrial ordered on appeal from the Crown

Byron Carr — found guilty of mischief — sentence unknown

Jo(ann) Walsh — charged with mischief — trial scheduled for November 2024

Steven Vardy — acquitted of mischief charges

Ben Spicer — charges of mischief, obstructing justice and possession of weapons dropped — judge rules Charter rights violated

As I write this piece, the Crown, who has now begun its closing arguments in the Lich-Barber trial is already using the convictions and re-trials in some of these cases to shore up their arguments to in its efforts to convict Lich and Barber.

Coutts Cross-Border Blockade Protest

Alex Van Herk, Marco Van Huigenbos, and George Janzen (Coutts Three) – convicted of mischief over $5000 – sentencing pending

Jerry Morin and Chris Lysak (Two of the Coutts Four) originally charged with conspiracy to murder police, mischief over $5000 and possession of a weapon for dangerous purposes – all charges dropped by the Crown as the result of a plea bargain wherein both men plead guilty to much lesser charges – for which they received ‘time served’ in remand custody. 

Chris Carbert and Tony Olienick (Remaining two of the Coutts Four) –  originally charged with conspiracy to murder police, mischief over $5000 and possession of a weapon for dangerous purposes – acquitted of the conspiracy charge, but convicted of mischief over $5000 and possession of a weapon for dangerous purposes - sentencing pending (defence for both men plan to appeal conviction of possession of a weapon for dangerous purposes)

Ursural Allred, Jaclyne Martin, Evan Colenut,  Justin Martin, Easton Oler –  charged with mischief over $5000 and possession of a weapon for dangerous purposes - still awaiting trial

Janx Zaremba, Luke Burke, Joanne Person Johnson Law – mischief over $5000 charges and possession of a weapon for dangerous purposes – all charges dropped by the Crown.

Artur Pawlowski – charged with mischief and convicted of mischief – sentenced to time served in remand while awaiting trial (appealing conviction).

The mischief charges that many of the protesters from the Freedom Convoy et al, are facing, or have already been convicted of, are problematic for a variety of reasons. As indicated previously the ambiguity of a mischief charge serves as a ‘catch all’ for police when making arrests, particularly when such arrests were made en mass as they were at the Convoy protest during the police response to the Emergencies Act. While many were arrested and charged with ‘mischief offences’ others, who were arrested at the very same protest, under the very same circumstances, were released that same day without charge. In the cases where people were charged with mischief, no specific act of mischief is mentioned in the charge.

Then there is a troubling trend wherein some justices in hearing Freedom Convoy cases are viewing the convoy protest itself as an act of ‘mischief’ and therefore consider any and all who took part in it guilty of mischief. This was clearly underscored in the case of Jay Vanderwier. Justice Peter Wright, who presided over his trial, in finding Venderwier guilty of mischief, maintained that he viewed the entire convoy as an act of ‘mischief’, leading him to conclude that Vanderwier, just by virtue of participating in it, regardless of any his actions, was guilty of mischief.

And Wright is not alone in this thinking. Superior Ontario Court judge, Justice Narissa Somji, citing her grounds in ordering a retrial for protester, Allen Remley, who had been acquitted of mischief by Justice Heather Perkins-McVey, concluded that Perkins-McVey didn’t adequately take into account the ‘context’ of the protest, ‘the evidence as a whole, including evidence of the ongoing protest.’ While Somji isn’t as direct as Wright in calling the protest itself an act of mischief, she implies it in her statements. 

This could be viewed as a compelling argument for judges and could set a worrisome precedent for those convoy participants who have not yet had their charges dealt with by the courts.

Marco Huigenbos, Alex Van Herk and George Janzen

During the trial of the Coutts Three Crown Attorney, Steven Johnston, in his opening statement to the jury asserted that he would prove that the three men were leaders of the Coutts protest — had ‘spearheaded’ it and therefore were guilty of mischief. Yet in the testimonies given by the two RCMP officers who had the most dealings with the three men, neither were able to conclude with any great certainty that they ‘led’ or controlled the protest. In fact, both said there were many different factions of protesters who had different views on how to proceed making it difficult to determine ‘leadership’. Johnston seemed to recognize that his ‘leadership’ argument had missed the mark, so in his final summation to the jury he then argued that he didn’t actually have to prove the men were leaders of the protest to demonstrate their guilt, stating that their mere presence at the protest was evidence enough to convict them, which the jury did. So with this logic, would it not cause one to conclude that all of the protesters at Coutts were guilty of mischief simply by virtue of the fact that they attended the protest?

In the case of the Coutts Four who were charged not only with mischief and possession of weapons, but conspiracy to commit murder of police, all of the original charges were dropped against two of the men – Jerry Morin and Chris Lysak. This was due to a plea bargain wherein both men plead guilty to much lesser charges. However, the other two men, their co-accused, Tony Olienick and Chris Carbert, while being acquitted of the conspiracy to murder police charge at their trial, were both found guilty of mischief over $5000 and possession of a weapon for dangerous purposes. This further muddies the waters, because Morin and Lysak were at the same protest, yet they somehow had their charges dropped. Meanwhile Olienick and Carbert were convicted for their participation in the same protest. So, one might ask, which is it, guilty or innocent. All four men were at the same protest, yet two had their charges dropped. What was the difference between these two cases, that were, at one point, a single case? The Crown in this case has given no explanation for his actions or reasoning on the matter.

These trials, all of them, have cost taxpayers untold millions of dollars. They have created untold financial and personal hardships for many those who have been charged, as well as their families. People like Lich, Barber, and the Coutts Three and Four who are facing enourmous legal fees, have had to rely on crowdfunding, meaning the generosity of fellow citizens to help pay them.

Most of these people now finding themselves at the mercy of Canada’s justice system have never been in trouble with the law, have never been arrested and have certainly never spent time in jail. Why? Because most were ordinary working class Canadians who had simply had enough of the dictatorial manner in which governments at all levels were imposing endless, needless and unproven COVID mandates and restrictions on them. They had seen livelihoods destroyed, business ruined and lives shattered due to the untold hardships such mandates had caused and decided to tell governments that Canadians had had enough. Yet our justice system seems determined to pursue them with a vengeance. Cases in which the ‘accused’ have been acquitted have had their acquittals overturned, while others have seen trials or cases drag on for months and months draining their resources and causing many untold stress and mental anguish. These people are not criminals, nor are they activists who make a living protesting, they are ordinary citizens who exercised their constitutional right to protest, in this case they were protesting the policies of their governments.

Meanwhile crime, real crime, is at an all time high in Canada. The homicide rate is the highest it has been in thirty years and police report that the sexual assault rate is the highest it has been since 1995. Police have told Toronto residents to leave their keys at their front doors or in their cars to avoid being attacked by violent armed car thieves. People fear taking the subway in that same city for fear of being attacked. Tent cities are awash in crime with assaults and drug trafficking being at the forefront of the problems that spill out into residential neighbourhoods making them unsafe.

Meanwhile Canada’s increasingly lax bail system, a product of the Trudeau government’s soft on crime agenda, has created a revolving door for repeat offenders being returned to the street to commit more crimes just hours after being arrested.So it is not surprising that almost half of Canadians have lost faith in both the police and justice system. But instead of tackling these cases our courts are wasting time and taxpayer dollars prosecuting ordinary citizens for exercising their constitutional right to protest and are continuing to do so even after some have been acquitted with judges granting appeals to have them retried.

What also seems to be lost in these collective prosecutions and what some might view a persecutions is the fact that earlier this year a Federal Court ruled that the Trudeau government’s use of the Emergencies Act, illegal, unconstitutional, yet not one member of the government has faced any type of admonishment or retribution for what should be seen as a serious infringement on the Charter and constitutional rights of not just the protesters from the Freedom Convoy, but all Canadians.

It all seems to send a clear and not so subtle message that while certain protests will be tolerated and even endorsed by the Trudeau government, others, with which he disagrees will not. He made that clear publicly during the convoy and even went one step further to slander them in order to justify his actions.

One should also remember the Trudeau as part of his testimony during the Public Order Emergencies Commission Inquiry expressed another very troubling opinion, saying that he found using protests to demand changes to public policy is something he found ‘worrisome’.

But isn’t that what protests are about? To call attention to government policies that the protesters may find ‘worrisome’ such as forcing people to take an untested vaccine and shutting down the country for months? But, the Trudeau government refused to listen to the concerns of the truckers (and many other Canadians) whose lives and livelihoods had been adversely affected after years of tyrannical health mandates. Rather than listen, he invoked the Emergencies Act turning our nation’s capital into a police state more reminiscent of Nazi Germany

Whether one supported the Freedom Convoy or not, Canadians should find how the protesters — ordinary citizens — not unlike the vast majority of Canadians living and working today, are being punished by the courts for their participation in a peaceful protest. Whether they are not they are acting at the behest of the Trudeau government, is question that deserves some serious exploration. In doing one should consider that since 2016, which is the year the Liberals came into power, 76 percent of judicial and tribunal appoints by the Trudeau government had previously made donations to the Liberal Party of Canada. So, again, it does cause one to wonder, does Canada have a problem with protests, is it that the Trudeau government has a problem with certain kinds protests?