Convoy Organizer Lich Remains Behind Bars as Defence Says Bail Judge’s Past Ties to Liberals Ground for Reversal

Legal experts debate whether there's an issue of bias in Lich's case
By Jared Gnam
Jared Gnam
Jared Gnam
Jared Gnam is a reporter based in Vancouver.
March 2, 2022 Updated: March 2, 2022

Freedom Convoy organizer Tamara Lich remains behind bars until at least March 7, marking 19 days in custody, as the judge overhearing her bail review on March 2 said the next hearing session would be the following week.

Among the arguments raised by Lich’s defence is that the judge who denied her bail was biased against her cause due to the judge’s former ties to the governing Liberal Party, a point of debate among legal experts.

Drew Barnes, an independent Alberta MLA in Lich’s hometown riding for Cypress-Medicine Hat, has called Lich a “political prisoner” and asked for her release.

“She freely admits to taking part in non-violent civil disobedience in her role with the Freedom Convoy to Ottawa. She faces mischief charges, and nothing more,” he said in a statement on Feb. 27.

“She has been portrayed in the media as a violent criminal, a foreign operative, and an anarchist. Nothing could be further from the truth. She is a former energy worker of Metis heritage, a mother, and grandmother, and sometimes plays guitar in a local band.”

Lich, one of the organizers who spearheaded efforts to encourage truckers to join the protest in Ottawa against COVID-19 mandates and restrictions, was arrested on Feb. 17 and charged with counselling to commit mischief.

A day later, police escalated their efforts to remove protesters from the nation’s capital, leading to 196 arrests and 115 vehicles towed by the morning of Feb. 21.

Prime Minister Justin Trudeau called the protest an “illegal occupation” after he invoked the Emergencies Act to quash the demonstration on Feb. 14.

Ontario Court Justice Julie Bourgeois denied Lich bail on Feb. 22, deeming her a risk to reoffend.

On Feb. 18, Bourgeois had granted bail to another key convoy organizer, Chris Barber, on several conditions and a $100,000 bond.

Vocal protester Pat King has been denied bail as well.

Some critics have questioned the impartiality of Bourgeois’s decision, while others say she made her decision without any political influence.

During Lich’s bail hearing, Bourgeois said there was a “substantial risk” that she was likely to reoffend by continuing to organize truckers against Canada’s COVID-19 mandates.

“I cannot be reassured that if I release you into the community that you will not reoffend. Your detention is necessary for the protection and safety of the public,” Bourgeois said.

Before Bourgeois was appointed as a judge in the Ontario Court of Justice in 2015, she worked as a Crown attorney and assistant Crown attorney for 16 years.

In Canada’s 2011 election, she ran as a Liberal candidate in the Glengarry-Prescott-Russell federal riding, coming in second place, losing to former Conservative MP Pierre Lemieux.

When Trudeau was running as the incumbent MP for Papineau during the 2011 campaign, he said he had “great admiration” for Bourgeois.

“Her vision, her authenticity, her strength is going to be an amazing asset,” Trudeau said in a video, before he became Liberal leader.

From 2009 to 2014, Bourgeois donated 71 times to the Liberal Party of Canada for a total of $9,936.01, according to Elections Canada records.

‘What Would a Reasonable, Informed Person Think’

Vivian Bercovici, a former law professor at the University of Toronto who was appointed ambassador of Canada to Israel during the Conservative government of Stephen Harper, raised concerns about Bourgeois’s impartiality.

“Media should be all over this,” Bercovici said on Twitter on Feb. 22. “Independent judiciary is a critical pillar of any democracy.”

“I’d expect [Canadian] media to be asking how it is that such a sensitive case was assigned to a judge who may be perceived as being biased,” Bercovici added.

David Anber, a criminal defence lawyer in Ottawa who’s defending some of the people charged in the protest, wrote in an article in Newsweek that he disagrees with Bourgeois’s decision. He said he believes she did not correctly apply the legal principles concerning bail in concluding that there is a “substantial likelihood” Lich would continue to break the law.

“There were tools available to the judge, including a high cash requirement (cash being unusual in Canadian bail) and strict house arrest terms,” Anber wrote. “Any risk of re-offence and breaching the conditions of her release could have been managed.”

But Anber said on Twitter that he’s “absolutely certain that she [Bourgeois] made her decision without any political influence.”

“Justice Bourgeois is an honest, hardworking judge who always strives to direct herself to the correct legal principles,” Anber said on Twitter on Feb. 22. “While I disagree with her ultimate application of those principles to the facts before her, I believe it was a closer call than most freedom protesters realize.”

Herb Dunton, an attorney based in B.C., points to a precedent on judicial bias set by a 2015 Supreme Court of Canada ruling in a case between the Yukon Francophone School Board and the territory’s attorney general.

The board had sued the Yukon government in 2009 for what it said were deficiencies in the provision of minority language education, and the trial judge ruled in the board’s favour on most issues.

Canada’s top court was asked to weigh in on the Court of Appeal’s conclusion that there was a reasonable apprehension of bias on the part of the judge based on a number of incidents during the trial as well as his involvement as governor of an Alberta francophone community organization.

In its ruling, the Supreme Court reiterated that the test for a reasonable apprehension of bias is “what would a reasonable, informed person think.”

Joshua Clarke, an Ottawa criminal defence lawyer with Armoured Suits, says allegations that Bourgeois was biased is an interesting question but one likely to fail, while noting that she is unlikely to be the trial judge.

“Judges are presumed to be impartial so you have to demonstrate how her affiliation could have impacted the decision, not some vague possibility,” he said in an email. “She’s been a judge for many years already, as time passes, the connection becomes weaker.”

The Canadian Press contributed to this report.

Jared Gnam
Jared Gnam is a reporter based in Vancouver.