A Leader of the Freedom Convoy Was Denied Bail. What It Means—and What it Doesn't | Opinion

One of the leaders arrested for organizing the Freedom Convoy was denied bail by a judge on Tuesday. A judge denied Tamara Lich bail based on what she called a "substantial risk" that Lich would continue her efforts organizing truckers against Canada's vaccine mandate. The judge also said that if convicted, Lich is liable for "a lengthy term of imprisonment."

Many are speaking out against the refusal of the judge to grant Lich bail, so going so far as to call Lich a political prisoner. I agree that the judge got it wrong in this case. But the truth is that it was a much closer call than many critics recognize.

Freedom Convoy
GiveSendGo, one of the largest Christian crowdfunding platforms, could potentially face terrorist financing charges due to the recent enactment of the Emergencies Act by Canadian Prime Minister Justin Trudeau. The group has reportedly already collected millions of dollars in funds for the "Freedom Convoy" of truckers protesting vaccine mandates. Here, a group of protestors can be seen on Parliament Hill in Ottawa on February 10. Dave Chan/Getty

Something many seem to be missing is the fact that a bail hearing is not a trial. At trial, the outcome is binary: guilty or not guilty. The rules of evidence are relatively concrete. And the legal onus is well known: The prosecution bears the onus of proving someone guilty "beyond a reasonable doubt". Anything less and a person must be found not guilty.

Bail on the other hand is a very different animal. It does not result in the binary decision making found in a trial, but rather involves balancing many interests and crafting an individualized outcome appropriate for the circumstances.

There is a heavy presumption that under ordinary circumstances, a person must be released from custody; the prosecution must "show cause" in order to countermand that presumption and make the case for denying bail. But there are three reasons that qualify as cause.

If the Court believes that the accused is likely to not attend Court, or if the Court believes there is a "substantial likelihood" that the person will continue to break the law or otherwise interfere with the administration of justice, or if the Court believes that detention is necessary to maintain confidence in the administration of justice, it is justified in denying bail.

In Tamara Lich's case, the judge detained her on the second and third grounds. "You are counseling publicly to continue to occupation," the judge said at the hearing. "I cannot be reassured that if I release you into our community you will not re-offend."

The decision was cogent and in line with a reasonable interpretation of the law.

Still, it is not in my view a correct application of the bail principles in this case.

Bearing in mind the heavy presumption in favor of release, a "substantial likelihood" is a high mountain for the prosecutor to climb. The judge found that the prosecutor indeed got there; I disagree. The protest has been for the most part disbanded by a heavy-handed police operation. Moreover, there were tools available to the judge, including a high cash requirement (cash being unusual in Canadian bail) and strict house arrest terms. Ms. Lich is well known. Even without a suitable surety (a person appointed by the Court to be responsible for enforcing bail terms) any risk of re-offense and breaching the conditions of her release could have been managed.

As for the confidence in the administration of justice, the offenses themselves are not serious enough to justify this argument.

The way in which the offenses are alleged to have been committed, however, are, depending on your perspective. One perspective saw in the Freedom Convoy a peaceful protest where protesters blocked roads but left lanes of traffic open for emergency vehicles and other traffic. According to those with this view, the protest may have been noisy, but it was almost exclusively attended by good faith actors protesting a legitimate cause with thousands of Canadian flags, and thousands of Canadians of all races, religions and political views partook.

The other perspective is that this was an "occupation" or "blockade" which included horn honking well into the night and forms of harassment.

Which perspective is correct ultimately depends on the evidence that the Court will hear. But it is my belief that with the evidence we currently have, a reasonable person mindful of the importance of the rule of law could not be convinced that detention was necessary if strict release conditions had been imposed.

And yet, though I disagree with the judge, a real belief in the rule of law leads to another more important conclusion: that the person best situated to evaluate the facts and argument was the judge.

It was a thorough and fair-minded decision, and though not the one I would have arrived at, it is also not one that is grossly out of step with the applicable legal principles that apply to everyone.

David Anber is a Criminal Defense Lawyer in Ottawa, Ontario Canada. Find him on Twitter @DavidAnber or at www.DavidAnber.com.

The views in this article are the writer's own.