00:00:34.100They'll do a couple days at a time and whatnot.
00:00:36.340But it is easy to forget that there are other cases that have a lot less publicity around them, but are still stemming from those same three weeks in Ottawa.
00:00:47.360Now, one of those came to a bit of an end, at least to some extent, last week.
00:00:51.360It was the trial of Jason Vanderveer, Jay Vanderveer as he goes by.
00:00:56.280He was one of the participants in the Freedom Convoy protest.
00:01:00.000Now, one of his contributions, and I only learned this after the fact, but let's put up the cover of my book on the convoy.
00:01:08.600So this is the Freedom Convoy, the inside story of three weeks that shook the world.
00:02:05.900So after the trial, you testified you were, I think, on day two of what was ultimately a four-day trial.
00:02:13.120There were different sort of pieces to the puzzle that came together, different testimony about the beginning, the middle, the end of the convoy.
00:02:22.040And ultimately, we made arguments that a mischief had not been made out.
00:02:27.580Certainly, Jason's participation in a mischief had not been made out.
00:02:33.340And even if it had been made out in the alternative, we argued that there were two sections of the criminal code that permitted either one to act with color of right or one to act in the course of delivering a message.
00:02:48.880And I argued that the evidence certainly established that that's what the convoyers were engaged in doing.
00:02:57.860The judge rejected all four of our arguments and ultimately found the Crown had proven beyond a reasonable doubt that there was a mischief, that Jason was involved in it to the requisite level of attracting criminal guilt.
00:03:12.380And he did not find that there was color of right or that the other section applied.
00:03:21.100And now the case, I mean, it's you said brought to a conclusion.
00:03:25.260It still has one more step is because he has now been found guilty, regardless of what you think about that, the court has found him guilty.
00:03:32.260And as a result, there will be a sentence that's going to be imposed.
00:03:36.160He will, of course, have the chance to appeal.
00:03:39.240And that's something that he is looking into doing.
00:03:51.440But what actually is mischief in a criminal sense?
00:03:54.640And how does that apply to the freedom convoy where we've heard it come up both in Jason's case and also the cases of Tamara Leach and Chris Barber and others?
00:04:04.040OK, so mischief, we most commonly see it in criminal law involving the destruction of property.
00:04:10.020You know, if you get an argument with someone and let's say they want to record you on their phone and you don't like that.
00:04:16.260So you grab the phone from their hand and smash it into the ground.
00:04:19.240That could be mischief or punching a hole in the wall could be considered mischief.
00:04:24.000But if you go in and read the section, there are other ways in which a mischief can be committed.
00:04:29.340And one of the well-established ones is by interfering with the lawful enjoyment of property.
00:04:36.940And I think that was the angle that the Crown came at this from.
00:04:40.620They actually had two counts that basically with slightly different wordings said the same thing.
00:04:47.200One said that it basically interfered with the lawful enjoyment of the property, Wellington, Parliament Hill, the downtown area.
00:04:56.580And that also interfered with the citizens of Ottawa's lawful enjoyment of the property.
00:05:02.760And so, I mean, he was found guilty of both.
00:05:04.720But because they're so closely related, he can only be sentenced on one of them.
00:05:10.220Effectively, the conduct that leads to one inextricably leads to the other.
00:05:15.240And so he's only going to get sentenced on one of those counts on which he was found guilty.
00:05:19.360And so what is meant by interfering with the lawful enjoyment is that it was the Crown's theory that people could not enjoy the public property, downtown Ottawa.
00:05:35.820That good night's sleeps could not be had because of the constant honking.
00:05:40.140That there was the inability to access certain roads.
00:05:49.060And what's interesting about this trial compared to maybe some of the more high profile trials like you talked about, the Tamara Leach trial,
00:05:57.020is the Crown actually led very little evidence in this particular case.
00:06:02.460In fact, it led to so little evidence, the judge even said, that it wasn't for the evidence, both of the defense.
00:06:09.620But, I mean, we wouldn't have called that evidence if they also didn't have some in their case.
00:06:14.480And the judge also pointed to the fact that Mr. Vandeweer had posted videos on social media himself.
00:06:20.500If it wasn't for that evidence, there would have been really no evidence of what the actual mischief was.
00:06:27.880I mean, again, the defense had to call the evidence because the Crown would have and did call the evidence that Jason had posted.
00:06:36.840And so without any response, the conviction would have almost been certain, at least on this judge's analysis of the law.
00:06:44.980And so we argued that they didn't really prove the mischief.
00:06:52.980And in fact, one thing that was actually interesting was, you may recall, there was a video montage that I put to you about some misinformation that went on during the convoy to such an extent that numerous members of Parliament and the NDP and the Liberal Party kept talking about this arson case, arson.
00:07:16.220They kept repeating this lie that the convoys had been involved in arson.
00:07:20.800I put that to you, and there was actually a point where the judge intervened, and we had to address this in your absence, where the judge was suggesting to me that I was essentially, you know, putting up a straw man, that no one was suggesting that anyone was engaged in arson.
00:07:36.980But my response to the judge was that one of the reasons we're trying to put this forward is that the Crown in other cases has asked the court to take judicial notice to accept without hearing evidence certain facts, such as the fact that Ottawa was occupied or Ottawa was the subject of this large scale mischief where people couldn't get to their homes or couldn't sleep at night without even hearing evidence of people saying those things.
00:08:04.620And I explained to the judge that whenever, if the Crown were to approach him, approach the court and ask the court to take judicial notice, or even if the Crown wanted to ask the court just to draw inferences about the convoy, that the court should be very guarded to do so because of the prevalence of misinformation.
00:08:23.620That's what that evidence sought to establish.
00:08:26.620And I thought that that was clear to the judge.
00:08:29.620One comment he made, which is going to be interesting to look at if this matter goes to appeal, is that in response to one of my arguments, the judge made the comment that said you'd have to be living under a rock to not be aware of the intrusion that this caused.
00:08:46.620And that's exactly what judicial notice is that we don't necessarily have to hear evidence of it, that everybody knows that this is what happens.
00:08:54.620And that that's the type of, of finding that the court shouldn't have been able to make.
00:08:59.620And so certainly that's something we're going to look at when deciding whether or not to appeal.
00:09:05.620Just to jump in on that point, David, because one of the problems here is that you do have in a lot of these cases that I've seen come up, a case where Crown is putting the convoy itself on trial and applying that to the person who happens to be the defendant.
00:09:21.620And it, it really happens irrespective of the individual defendant's conduct.
00:09:25.620And it sounds like that was really what was happening here as well.
00:09:27.620Well, to a certain degree, that is a, an effective and an appropriate strategy of the crown.
00:09:32.620And to a certain degree, that was our strategy to combat it.
00:09:36.620I mean, the crown would need, if the crown wants to go that route, they have to establish that the convoy itself constituted a mischief.
00:09:44.620And also that the person on trial participated in some way that they just weren't simply observing it happen in front of them, but they were in some way acting either as a principal actor in that convoy or as a participant or, or as a aider or a better of, of the convoy as a party to, to that.
00:10:06.620And so we actually liked framing it like that, because if we could establish either of those two had, had, had failed to be done, that would have resulted in an acquittal.
00:10:17.620And so our primary line of focus is to argue, look, the crown is not established beyond a reasonable doubt, certainly on the evidence in this trial, that there was a mischief.
00:10:27.620And to whatever extent that there was, the convoy was there to, to deliver a message.
00:10:35.620And so under subsection seven of the mischief provision, you can't find someone guilty of that.
00:10:41.620And then even if that was established, they had to establish that Jason participated.
00:10:46.620And I think the judge was able to make that leap in the, in the sense that they found him to be a, a fairly involved participant in the convoy.
00:10:54.620So let me just ask you moving forward here, not just in, in this case, but in general, now that a judge has found that someone who was involved in the convoy had committed mischief.
00:11:06.620That's the finding as it stands right now.
00:11:08.620Can that seep into other cases when crown is making similar arguments?
00:11:14.620For example, the Tamera Leach and Chris Barber trial, which is already underway.
00:11:17.620Can they use this ruling to kind of help make that case against them that, Oh, a judge has already found the convoy was a mischief.
00:11:25.620I mean, and the, the main reason why is that, um, every criminal trial is a trial on its own evidence, other than when a court takes judicial notice.
00:11:34.620Like, like just to, just to reiterate that point, you know, a court can take judicial notice that water freezes at, at zero degrees without having to call a scientist into court to testify in every case where that's, where that's a situation.
00:11:54.620I'm saying there are ways in which judicial notice could be taken.
00:11:57.620I mean, judicial notice can be taken of the fact that, that Wellington is located north of the Queensway.
00:12:04.620And that, and that Metcalf street runs north south.
00:12:08.620I mean, these are things where everybody does in fact know this.
00:12:11.620There's no controversy, any, any resources like maps or anything like that would, would confirm that.
00:12:17.620And so where there's no dispute courts can find that, but in a, to answer your question on the extent of whether or not something is a mischief, the court needs to adjudicate it on the record.
00:12:29.620That's before it on the evidence that's before it.
00:12:31.620And, and so I think that it would be inappropriate for a court to, um, to find that because one court found it to be a mischief, another court could do that as well.
00:12:43.620All right. Well, uh, sorry about the loss, but I know you're looking at your options and let's hope that, uh, we have some sanity prevailing here.
00:12:50.620David Anberg, criminal lawyer in Ottawa and not a Simpsons character as for quite a while, his, uh, Twitter, uh, profile photo made it seem.