Bruce Pardy: By Freeing Tamara Lich, the Superior Court Restores Confidence in the Rule of Law

July 31, 2022 Updated: August 1, 2022

Commentary

On July 26, Tamara Lich was released from jail again. Charged with mischief in February for her role in the Freedom Convoy that descended on Parliament Hill, Lich had been incarcerated on July 8 by a justice of the peace after the Crown attorney characterized her as a danger to public safety and the convoy protest as essentially the crime of the century. It was the second time Lich had been detained by lower judicial officers, and the second time her detention was overturned on review by a judge of the Superior Court. She has spent a total of 49 days behind bars on some of the least serious, non-violent charges in the Criminal Code.

In Canadian courts, release on bail is commonly granted to persons accused of all manner of offences, but has been anything but common for Lich. Before the Superior Court stepped in, her disproportionate treatment had caused some pundits to declare that Lich, who has no criminal record and no history of violence, was effectively a political prisoner. But Lich’s experience is not the only reason for Canadians to have diminished faith in the rule of law. Consider just a few of the steps in this saga so far.

Last September, Justin Trudeau said that unvaccinated Canadians “don’t believe in science, they’re often misogynistic, often racist. They take up space … do we tolerate these people?” In January, when the trucker convoy was on its way to Ottawa to protest vaccine mandates, he called the truckers a “fringe minority” with “unacceptable views.” Two weeks into their peaceful protest, his government invoked the Emergencies Act, and on Feb. 18 and 19, police brandishing riot batons arrested close to 200 people, broke truck windows, unleashed the occasional burst of pepper spray, and cleared the convoy away.

Lich was arrested on the street and charged with mischief. In her first court appearance before Judge Julie Bourgeois of the Ontario Court of Justice, she was called a danger to the public and kept behind bars until Superior Court Justice John Johnston released her on review two weeks later. (The Superior Court of Ontario is a trial court of “inherent jurisdiction,” which sits above the Ontario Court of Justice in the judicial hierarchy, but below the Ontario Court of Appeal and the Supreme Court of Canada. The court is administered provincially but its judges are federally appointed.)

On April 9, Le Devoir published an interview with Supreme Court of Canada Chief Justice Robert Wagner, in which Wagner condemned the convoy. The protests, Wagner is reported to have said, were “the beginning of anarchy where some people have decided to take other citizens hostage” and should be denounced with force. On May 16, a group of lawyers submitted a complaint to the Canadian Judicial Council (CJC) that argued Wagner’s criticisms took sides in a political dispute and expressed bias on the legal issue of the government’s invocation of the Emergencies Act and the right to protest. Legal challenges on those matters were before the courts, the complaint noted, and the chief justice’s public expression of predetermined views undermined confidence in judicial impartiality.

On May 25, Superior Court Justice Kevin Phillips, observing that the courts “are not a thought police,” granted a variation of Lich’s bail conditions that allowed her to travel to Ontario to attend an award dinner to receive the George Jonas Freedom Award. On June 16, Lich attended the event where she briefly (about three seconds, the court concluded) interacted with a person her bail conditions prohibited except in the presence of counsel, who were at the dinner. A Canada-wide warrant was issued for her arrest. She was detained by Medicine Hat police, charged with violating bail conditions, and transported by Ottawa police back to Ottawa.

On June 23, the CJC’s acting executive director, Jacqueline Corado, rejected the complaint against Chief Justice Wagner’s extrajudicial condemnation of the protests. Her letter called the complaint “unsupported,” “largely based on a hypothetical scenario,” “manifestly without substance,” and did not concern judicial conduct. The complaint, her letter concluded, was not worthy of further consideration by the council. She added, “public confidence is at higher risk when public and dogmatic motivated attacks against the judiciary are launched without merit or for improper purposes.” In other words, extrajudicial comments don’t undermine impartiality, but pointing them out does.

On July 8, at Lich’s bail hearing on her charge of violating bail conditions, Crown prosecutor Moiz Karimjee relied on Wagner’s comments as a basis for characterizing the protest as an “occupation.” The extrajudicial comments of the chief justice, the complaint about which the CJC dismissed as unsupported and hypothetical, were being referenced in legal proceedings as authority for the proof of their content.

In his decision returning Lich to jail, Justice of the Peace Paul Harris concluded at the Crown’s urging that Lich posed a risk to public safety, and, ironically, that her detention was necessary to maintain confidence in the administration of justice. There she remained until Superior Court Justice Andrew Goodman overturned the decision and released her on July 26. “Take those shackles off,” he instructed the constable, referring to the ankle shackles Lich was wearing throughout the proceedings.

Tamara Lich has never been shown to be a threat to anyone’s safety. The convoy was peaceful throughout its time in the capital. No weapons were found. No violence was committed. The truckers shovelled the streets and fed the homeless. They played road hockey and danced in the snow. Their honking stopped in the evening, and then stopped altogether after the Superior Court issued an injunction. The protests were more joyous celebrations than angry demonstrations—not that angry demonstrations would have been illegal either.

But Lich does represent an existential threat—not to Canada, but to the political aspirations of those who presently control it. She has become the face of resistance to a political order in which there are steadily fewer individual freedoms and steadily more technocratic diktats. The Great Reset was unfolding very well in this country until the truckers showed up. A “freedom movement” has been born. Protests around the world have been inspired by the convoy, most notably in the Netherlands, where farmers are presently rebelling against draconian and nonsensical rules to limit the emission of nitrogen, which would put many of them out of business and corrupt the way that food is produced.

Respect for the rule of law depends on whether people believe that they will get a genuinely fair trial. The prime duty of prosecutors is not to achieve a conviction but to see that justice is done on the merits. The prime duty of judges is to approach every case with impartiality and an open mind. “Justice should not only be done,” Lord Chief Justice Hewart famously said in a 1923 UK King’s Bench judgment, “but should manifestly and undoubtedly be seen to be done.”

Canadians can see how harshly Lich has been treated compared to those accused of violent offences. They can see how enthusiastically the police and Crown prosecutor have pursued Lich compared to the relative disinterest shown toward protesters who burn down churches and block railways. When the same rules and standards are not applied to everyone, confidence in the fairness of the system evaporates.

In overturning Lich’s detention orders and slapping down the Crown’s zealous determination to punish her before her trial has been held, the Superior Court has helped to restore confidence in the rule of law. Just ask Tamara Lich.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Bruce Pardy
Bruce Pardy is executive director of Rights Probe (RightsProbe.org) and professor of law at Queen’s University. Email: rightsprobe@protonmail.com