00:13:58.420You and I talked in a Twitter space a couple of weeks back
00:14:01.760and I said I wanted to delve into some of these issues
00:14:03.900with you further. And of course, this issue has changed. But let me just start with the bail
00:14:08.400question here. When Tamara Leach was first asking for bail, I think it was the day after she was0.98
00:14:14.060arrested. Actually, yeah, it's two weeks ago today, because I recall the day after was a Friday.
00:14:18.960And I thought it was bizarre that the judge didn't make the decision right away. And this judge as
00:14:24.140well, taking five days to review the bail. Is this normal in a criminal proceeding?
00:14:28.480To a certain extent, Andrew, it is normal when judges have decisions that are important. I mean, they're all important. But when they're in the national scrutiny, in the national eye, if they deal with something that's a complicated legal question, I appreciate that there are many who feel that this is a slam dunk.
00:14:48.740it's a mischief charge and she should be released. And look, I'm a big believer that the first judge
00:14:55.020got it wrong. But I did also believe at the time that it's a much closer call than people think it
00:15:01.420is when you apply the rules that apply to bail. And look, the prosecutor who's been arguing the
00:15:07.200case has been doing a very good job at advancing the prosecution's theory of the case. So Justice
00:15:13.320bourgeois uh wanted to wait until i think it was after the holiday monday uh the tuesdays when she
00:15:19.800released her decision so that's that's somewhat normal what happened uh yesterday and it was uh
00:15:25.240what's called a bail review which is essentially like an appeal i won't bog down in the minutiae
00:15:29.960of what it is it's basically an appeal of uh of the first bail ruling to a higher court judge
00:15:35.880it's actually just for those of you who are interested it's a it's a harper appointee
00:15:40.280judge the provincial court judge was appointed by the provincial government but this is a superior
00:15:45.400court judge a former defense lawyer a very good judge very open-minded judge not a pushover one
00:15:52.120way or the other so he heard a full day hearing basically the matter went to close to six o'clock
00:16:01.160in the afternoon in the evening and he indicated that he needed some time to reflect on that now i
00:16:09.800I think due to scheduling reasons, he's in other courts and other jurisdictions for the
00:16:14.280remainder of the week, the Thursday and the Friday.
00:16:17.240And so the first opportunity after that that he would have to render a decision would be
00:16:29.480But I think that there's nothing nefarious going on behind the scenes.
00:16:33.280That's just the way everything shook out with the way the bail went all day yesterday.
00:16:38.140Not being a lawyer, I typically look at the two considerations that seem to come up in any bail stories I've covered as being the seriousness of the offense or the alleged offense and also whether the person is a flight risk.
00:16:51.620Now, again, I'm hoping you can explain what the factors are that go into these decisions.
00:16:56.140But on those two points, we're talking about relatively minor charges here.
00:17:00.180And also, we're talking about a woman who has had her bank accounts frozen previously, doesn't have a lot of money and isn't vaccinated, so couldn't even if she wanted to get on a plane to flee the country here.
00:17:11.680So I don't think we're talking about much of a flight risk here.
00:17:14.720What are the factors at play here that have been justifying keeping her detained, not giving her bail, especially when one of her co-organizers, Chris Barber, was given bail by that first judge, Justice Bourgeois?
00:17:26.940on. Okay. So Andrew, there are three considerations in bail. The first, as you indicated, is the
00:17:33.400flight risk. The second is the substantial likelihood of the repetition of the offense
00:17:38.940or further offenses. And the third is the reputation of the administration of justice
00:17:43.820as that's perceived in the community. And that normally doesn't play much of a factor into a
00:17:48.600typical mischief charge, but it actually is playing a large factor here because it's got such a high
00:17:53.740profile because members of the community allegedly were so much affected by what was being framed as
00:18:00.620a a blockade as an occupation so on the first consideration uh justice bourgeois did not detain
00:18:09.020tamara leach on the first first consideration the first consideration i believe the crown had argued
00:18:14.300it was a a factor but that's not been uh the that's not been the consideration it's been the
00:18:20.460second and the third that have been in play in this particular case and a lot has been said and
00:18:26.540a lot has been made of tamara leach saying the hold the line i mean and again look i put myself
00:18:32.380in the shoes of the prosecutor if i were prosecuting this i would be making the same
00:18:36.780point as he did it's that the you know the politician said to go home the police said to go
00:18:42.300home the emergency act was uh invoked and then as she's being arrested she says hold the line one
00:18:48.620more time and so the argument that they're making is that she can't be governed by the rule of law
00:18:54.940now again i i believe that the bail judge got it wrong in the first instance there's a heavy onus
00:19:00.780in terms of releasing people uh particularly those without a prior record and so um notwithstanding
00:19:07.820the fact that that's a concern the conditions of bail could be fashioned in such a way as to
00:19:14.300alleviate that. Now in Canada, we don't rely so much on cash bail, although that would have been
00:19:20.320an option. I know in Quebec, they're a little more interested in doing that than they are in
00:19:24.900Ontario. Ontario places a big emphasis on shirties. That's a person who is willing to step up and sign
00:19:31.100for the person and be responsible for the person, like their jailer. So they would turn them into
00:19:36.680police if they weren't following conditions. Tamara Leach's first shirtie was not seen as
00:19:42.080being suitable. But a different surety testified there was a publication ban on the identity of
00:19:48.820that surety. So I can't really say much more other than there was a different surety that was put
00:19:53.060forward. And there was a debate held over whether or not that person would be appropriate. But
00:20:00.880moving now to the third consideration, sort of the public's perception of the administration of
00:20:05.380justice, should this person be released? And we're seeing something that we see pretty much in other
00:20:10.960areas of of civil society or politics or what have you it's that there are these two different
00:20:16.940realities of what was going on in ottawa that are being put forward there's the reality at least the
00:20:22.500one that i saw and i drove the streets uh my offices you can see uh right yeah you've got
00:20:28.640you had quite a beautiful view of the action and even normally of downtown ottawa there i can i'm
00:20:32.960actually quite jealous here being in my little basement office of your view absolutely we're
00:20:37.480right downtown and yeah there was some a little bit of additional delays when getting to work but
00:20:43.080i i could drive other than wellington i could drive pretty much every street downtown there
00:20:48.540was at least one lane of traffic open on every major downtown core street uh you know say what
00:20:54.680you will about the the flags that were there on the first day you know one or two flags that were
00:20:59.520really really focused on by the media but you know there were hundreds or thousands of canadian flags
00:21:04.920every day. It was a very peaceful and a very cordial protest for a very long time. That's
00:21:13.740one reality. The other reality is that this was a blockade, an occupation, that there was harassment
00:21:19.300going on. We heard a member of parliament even say that there was sexual assaults that were
00:21:24.820taking place when there's really no evidence to support that. There was the ongoing honking,
00:21:29.280which was a concern, and there was a court order that addressed that. But when you get the
00:21:35.680prosecution that puts essentially a package of photos and pieces of evidence together, including
00:21:41.800statements from the civil lawsuit that's going on, you get this one reality that makes it look
00:21:47.760like it's some kind of hellscape, that Tamara Leach was responsible for visiting upon the city
00:21:53.860of Ottawa. And so I think that to a certain degree, that was the perception that was
00:22:00.880guiding the first bail judge. And Justice Johnston, he normally sits in Ottawa. He's a little bit
00:22:09.140removed from the city of Ottawa and was able to, I think, you know, not necessarily tune into what
00:22:14.640the innuendo is in the media, but focus on what the evidence was before him and put it into the
00:22:20.520proper context and into the proper prioritization. Because again, you know, people can be released
00:22:25.840on any crime in Canada, no matter how heinous. So it's a consideration of all three of those
00:22:31.160factors. I think that the lawyer for Tamara Leach did a good job of advancing the argument on a bail
00:22:38.000review and getting through some of those technicalities. Because it's not quite an appeal.
00:22:42.000There's some, you know, certain issues that are assumed to have been correct by the bail judge.
00:24:50.200The court can make determinations and speak about the police's conduct.
00:24:56.080The lack of recourse is what often exists when a person isn't charged.
00:25:00.620We saw people as even far back as the, you know, the gas can seizures that took place earlier on in the protest where people were arrested, their property seized, and then they were released hours later.
00:25:11.700So for those people, I know, for example, the lady who was trampled by the horse, Candace Saro, she's being represented by Matthew Wolfson in my office, and she wasn't charged with anything, but she is going to be, through the assistance of Matt Wolfson, bringing a professional standards complaint.
00:25:31.320so that's a chance for the police to be formally disciplined for their conduct we're going to be
00:25:38.720doing the same thing for the lady doreen that you may have seen who was a video recording on her
00:25:44.560phone a police officer who walks up to her he walks up to her and says why are you pointing
00:25:49.760that in my face uh stop recording and they start grilling her about where she's from
00:25:54.900and then they start basically threatening her leave now or we're going to place you under arrest
00:25:59.500And I've said this before, but it bears repeating. It's that the Emergency Act did give the police additional powers, but it didn't give the police unlimited powers.
00:26:10.740And that's how the police were conducting themselves that weekend, where basically whatever the individual officer or the police force as a whole determined was necessary to do, you needed to do or face being arrested and charged with the same thing as Tamara Leach or anybody else who was there continuing to protest.
00:26:29.500Yeah, and one of the more concerning aspects was this reverse onus that police claimed. You needed to prove that you had a lawful purpose, not just to be in front of Parliament Hill, but even as that video you just indicated, which we played on the show last week, shows to just walk down the street three or four blocks from Parliament Hill.
00:26:47.520you had to prove to police that you had a reason. And as I understand it, and please correct me if
00:26:52.760I'm wrong here, it happens often, but detention has a very broad meaning. It isn't just about
00:26:58.380having handcuffs thrown on you. If police are stopping you and questioning you, that is
00:27:02.220detainment, is it not? It is. I mean, there's psychological detention. Not every interaction
00:27:07.880between the police and the public is a detention, but certainly where the police is taking some
00:27:13.800degree of control over you and basically threatening you to say, you know, do as I say,
00:27:18.980or we're going to place you under arrest. I would make the argument that the police are
00:27:22.500detaining a person. And for all the Emergencies Act's faults, and there are many, it didn't say
00:27:27.800you weren't allowed to film a public street. No. And Trudeau even said when announcing the
00:27:33.180Emergency Act, he said, this is what it's not. And he said, it is not a restriction of the
00:27:38.580Charter of Rights and Freedom. And you go into the Emergency Act, where they set out the so-called
00:27:44.620red zone, where they can secure an area. That area, the southern area of that area specified
00:27:51.000in the Emergency Act is Wellington Street. The Ottawa Police decided that they were going to
00:27:55.980have an expanded red zone, and they treated the rest of that area, which wasn't specified in the
00:28:02.380Emergencies Act as their full discretion to determine it to be a red zone and treat people
00:28:09.100however they saw fit to treat them. Well, I'm glad you're on this and you've been doing a great job
00:28:16.080on Twitter and you have your Twitter handle up on the screen there, David Anber, demystifying
00:28:20.760a lot of this for the lay people out there like myself. So I appreciate it very much,
00:28:25.600David Anber, lawyer in Toronto. Thank you, sir. Ottawa, thanks for having me.
00:28:29.660I knew Ottawa. We were talking about you being in Ottawa. I'm from London. So they're all just
00:28:34.240like big cities that go into an amorphous blob to me. But yes, Ottawa lawyer, David Anber. Thank you,
00:28:39.800sir. Thanks, Andrew. All right. Well, that was very good. And again, I've had some great
00:28:45.940interactions with David and he's been very quick to represent people that I think very much are
00:28:50.920in need of that. I mean, that interaction with that woman on Wellington Street. And again,
00:28:55.060I'm very pro-police. Police are oftentimes put in very difficult situations. They are very important
00:29:01.260to our society. And the problem is when you see a situation like that, you're talking about a
00:29:08.780police officer that is obeying an order that is itself, I'm convinced, unlawful. And with all of
00:29:15.460the ambiguity out there, you were forced to give just so much discretion. I know I told this story
00:29:21.300right after I got back from Ottawa. Bear with me because I think it's important here. The day after
00:29:26.460the protest was basically dismantled. So it was a Sunday and it was, I guess, two weeks ago from
00:29:33.820the Sunday that's coming up. The time is all just like blending together here. But what happened
00:29:39.300was I was walking around and being questioned by police at various points. One of them was actually
00:29:46.300at the same point that video was taken. I think it was a different officer though. I tried to walk
00:29:50.120east on Albert Street. Police very quickly pounced on the sidewalk and told me I had to go back. I
00:29:55.540said, but I'm a journalist. They said, prove it. I said, I mean, there is no universal journalism
00:29:59.800credential in Canada. And they said, then turn around. And then I went to another police officer
00:30:05.280when I tried to find another way to get to the same place. And he said, okay, can you show me
00:30:11.680proof that you're a journalist? And I said, well, there isn't proof. And he was surprised. He said,
00:30:15.400oh, I didn't know that. And I said, well, I could show you my Twitter profile. And I pulled up on
00:30:20.140my phone, my Twitter profile that just proved that I was in Ottawa reporting. And he looked at it,
00:30:25.180he said, oh, you're even verified. Then he waved me right through. And then at another point,
00:30:29.480I tried to get into this secure area that was Wellington Street. And at one point I had actually
00:30:35.600told them, I said, I'm a journalist. I had a letter from my editor that I was able to provide.
00:30:41.080And I had a phone number for my editor. I said, you can call him. He can prove that I'm here.
00:30:44.780Here's my ID. I was very transparent. They rang it up the flagpole to their boss, who rang it up
00:30:50.600the flagpole to his boss, who said, no, you need to have a parliamentary press gallery credential.
00:30:56.300Which again, has nothing to do with whether you're a journalist or not. That's just whether
00:31:00.120you have been accredited to work in a very narrow space in Canadian media. And then I went around
00:31:06.020to another entrance and I showed the letter, I showed my ID and he said, okay. And then I was in.
00:31:10.780And that was where I took that video of police taking a selfie with their drone and just had
00:31:15.580complete free reign over the streets. So all of this is to say that you had police that were not
00:31:21.600being given clear direction on this. They've been told by someone that, okay, we'll let journalists
00:31:26.900in just this once, but some of them were saying, okay, you need to be able to prove that.
00:31:32.680So why is the onus on me to prove that I'm a journalist? And by the way, that is in and of
00:31:38.920itself a category that is not particularly useful. If you look at the Charter of Rights and Freedoms,
00:31:43.820which contrary to popular belief still does exist, it's still on the books as a law in Canada,
00:31:49.980even if people are using it as toilet paper, it still is there. And what happens is you look at
00:31:55.100it and section two has freedom of the press listed really as an example of freedom of expression.
00:32:03.060There's no special category of freedom for journalists.
00:32:07.520Freedom of the press is just one type of freedom of expression.
00:32:31.540and that includes freedom of protest. That includes freedom of assembly.
00:32:37.020So that's the great irony here. The very same section that protects journalists
00:32:40.720is also the same section that protects protest. And we oftentimes forget this. So when police
00:32:47.160were going out and threatening journalists and threatening protesters, at least they were being
00:32:52.180consistent. But the upshot of it is that people's constitutional rights were being infringed.
00:32:58.000But oh, Justin Trudeau said that was never going to happen. He said this was all about press freedom. This was all about free speech. It was always about the freedom to engage in a peaceful protest. Well, why then after the vehicles were removed from Wellington Street, were people not able to assemble as people do all throughout the year on the front lawn of Parliament Hill?
00:33:17.660Why was that form of free assembly, which is a peaceful and lawful activity, why was that not
00:33:25.080allowed? There were all sorts of inconsistencies here. And if you watched my interview yesterday
00:33:30.580with Candace Bergen, the conservative leader, I asked, is there still going to be accountability?
00:33:36.020Can there even be accountability over the Emergencies Act without the emergency? And
00:33:40.340she said they're going to keep trying. Not long after that interview, what we saw happened was
00:33:45.320the NDP were trying to help the Liberals and are succeeding in helping the Liberals dilute
00:33:50.220what the post-emergencies act review process is going to look like, of limiting the ability for
00:33:57.000this committee, this special committee that's going to investigate it, to actually do its work.