00:00:00.000you're tuned in to the andrew lawton show
00:00:05.960tamara leach who is the lead convoy fundraiser she was the one that started the gofundme she was
00:00:15.180the one that was in ottawa was yelling out hold the line as she was arrested by police tamara
00:00:21.200leach after a bail hearing yesterday has been kept behind bars for at least another five more days
00:00:27.900so that'll bring us to monday when the judge will decide whether or not she should be released on
00:00:34.580bail that will be about two and a half weeks or if i'm being precise here two weeks and three days
00:00:40.960since she was first arrested for organizing a protest she was arrested on the charge of
00:00:47.480counseling mischief i've never heard of someone being kept behind bars with the crown so fervently
00:00:52.600trying to keep them there as is happening in the case of tamara leach i want to talk about this
00:00:57.440and much more about the aftermath of the convoy with criminal lawyer david anber who believe it
00:01:02.780or not is not a simpsons character on twitter you may be mistaken if you thought that but he has a
00:01:07.580real life identity and he is sharing it with us today david good to talk to you thanks very much
00:01:11.960for coming on the program thanks for having me andrew you and i talked in a twitter space a couple
00:01:18.140of weeks back and i said i wanted to delve into some of these issues with you further and of course
00:01:22.020this issue has changed but let me just start with the bail question here when tamara leach was first
00:01:28.380asking for bail i think it was the day after she was arrested actually yeah it's two weeks ago today
00:01:33.280because i recall the day after was a friday and i thought it was bizarre that the judge didn't make
00:01:38.500the decision right away and this judge as well taking five days to review the bail is this normal in
00:01:44.540a criminal proceeding to a certain extent andrew it is normal when judges have decisions that are
00:01:51.320important i mean they're all important but when they're in the national scrutiny in the national
00:01:57.860eye if they deal with something that's a complicated legal question i appreciate that there are many who
00:02:03.740feel that this is a a slam dunk it's a you know a mischief charge and she should be released and i'm a big
00:02:10.540believer that the first judge got it wrong uh but i i did also believe at the time that it's a much
00:02:16.760closer call than people think it is when you apply the rules that apply to bail and look the prosecutor
00:02:23.100who's been arguing the case has been doing a very good job at advancing the prosecution's uh theory of the
00:02:29.000case so justice bourgeois uh wanted to wait until i think it was after the holiday monday uh the tuesdays
00:02:36.440when she released her decision so that's that's somewhat normal what happened uh yesterday and it
00:02:41.760was uh what's called a bail review which is essentially like an appeal i won't bog down in
00:02:46.400the minutia of what it is it's basically an appeal of uh of the first bail ruling to a higher court judge
00:02:52.440it's actually just for those of you who are interested it's a it's a harper appointee judge uh the
00:02:58.380provincial court judge was appointed by the provincial government but this is a superior court judge
00:03:03.000a former defense lawyer a very good judge very open-minded judge not a pushover one way or the
00:03:10.400other uh so he heard a full day hearing basically the matter went to close to six o'clock in the
00:03:18.500afternoon in the evening and he indicated that he needed some time to reflect on that now i think
00:03:27.020due to scheduling reasons he's in other courts and other jurisdictions for the remainder of the week
00:03:32.080the thursday and the friday and so the first opportunity after that that he would have to
00:03:37.140render a decision would be on the on the next monday so uh certainly uh nobody likes the idea that
00:03:43.240that you have to wait for justice especially when you're in custody but i think that there's nothing
00:03:47.820nefarious going on behind the scenes that's just the way everything shook out with the way the bail
00:03:53.300went all day yesterday not being a lawyer i typically look at the two considerations that seem to come up in
00:04:00.420in any bail stories i've covered as being the seriousness of the offense or the alleged offense
00:04:05.300and also whether the the person is a flight risk now again i'm hoping you can explain what the factors
00:04:11.540are that go into these decisions but but on those two points we're talking about relatively minor charges
00:04:16.780here and also we're talking about a woman who has had her bank accounts frozen previously doesn't have
00:04:22.660a lot of money and isn't vaccinated so couldn't even if she wanted to get on a plane to flee the country
00:04:28.260here so i don't think we're talking about much of a flight risk here what are the factors at play
00:04:33.220here that have been justifying keeping her detained not grant giving giving her bail especially when one
00:04:38.660of her co-organizers chris barber was given bail by that first judge justice bourgeois okay so andrew
00:04:45.860there are three considerations in bail uh the first as you indicated is the flight risk the second is the
00:04:52.100substantial likelihood of the repetition of the offense or further offenses and the third is the
00:04:58.660reputation of the administration of justice as that's perceived in the community and that normally
00:05:03.620doesn't play much of a factor into a typical mischief charge but it actually is playing a large factor
00:05:08.740here because it's got such a high profile because members of the community allegedly were so much affected
00:05:15.300by what was being framed as a uh a blockade as an occupation so on the first uh consideration uh justice
00:05:23.700bourgeois did not detain uh tamara leach on the first first consideration the first consideration i believe
00:05:30.020the crown had argued it was a a factor but that's not been uh the that's not been the consideration it's
00:05:37.060been the second and the third that have been in play in this particular case and a lot has been said
00:05:43.300and a lot has been made of tamara leach saying the hold the line i mean and again look i put myself
00:05:49.300in the shoes of the prosecutor if i were prosecuting this i would be making the same point as he did it's
00:05:55.060that the you know the politician said to go home the police said to go home the emergency act was uh invoked
00:06:02.180and then as she's being arrested she says hold the line one more time and so the argument that they're
00:06:07.860making is that she can't be governed by the rule of law now again i i believe that the bail judge got
00:06:14.260it wrong in the first instance there's a heavy onus in terms of releasing people uh particularly
00:06:20.340those without a prior record and so um not withstanding the fact that that's a concern
00:06:26.660the conditions of bail could be fashioned in such a way as to alleviate that now in canada we don't
00:06:33.860rely so much on cash bail although that would have been an option i know in quebec they're a little
00:06:38.980more uh interested in doing that than they are in ontario ontario places a big emphasis on shirties
00:06:45.540that's a person who is willing to step up and sign for the person and be responsible for the person
00:06:51.220like their jailer so they would turn them into police if they weren't following the conditions uh tamara
00:06:57.060leach's first shirtie was not seen as being suitable but a different shirtie testified there was
00:07:03.540a publication ban on the identity of that shirtie so i can't really say much more other than there
00:07:08.340was a different shirtie that was put forward uh and and there was a debate held over whether or not
00:07:13.780that person would be um would be appropriate but moving out of the third consideration sort of the
00:07:20.100public's perception of the administration of justice should this person be released and we're seeing
00:07:25.940something that we see pretty much in other areas of of civil society or politics or what have you
00:07:32.260it's that there are these two different realities of what was going on in ottawa that are being
00:07:37.140put forward there's the reality at least the one that i saw and i drove the streets uh my offices you
00:07:43.220can see uh right yeah you've got you had quite a beautiful view of the action and even normally of
00:07:48.500downtown ottawa there i can i'm actually quite jealous here being in my little basement office of
00:07:52.340your view absolutely we're right downtown and yeah there was some a little bit of additional
00:07:58.420delays when getting to work but i i could drive other than wellington i could drive pretty much
00:08:03.860every street downtown there was at least one lane of traffic open on every major downtown core street
00:08:10.340uh you know say what you will about the the flags that were there on the first day you know one or
00:08:15.380two flags that were really really focused on by the media but you know there were hundreds or
00:08:20.340thousands of canadian flags every day it was a uh a very peaceful and a very cordial protest for for
00:08:29.220a very long time that's one reality the other reality is that this was a blockade an occupation
00:08:34.980that there was harassment going on that we heard you know a member of parliament even say that there was
00:08:40.100sexual assaults that were taking place when there's really no evidence to support that there was the
00:08:45.140ongoing honking which was was a a concern and there was a court order that that addressed that but
00:08:51.700when you get the prosecution that puts essentially a package of photos and pieces of evidence together
00:08:58.260including statements from the civil lawsuit that's going on you get this one reality that makes it look
00:09:04.580like it's some kind of hellscape that tamara leach was responsible for for visiting upon the city of ottawa and
00:09:11.540so i think that to a certain degree uh that was the perception that was guiding the first bail judge
00:09:21.380and uh justice johnston he normally sits in ottawa he's a little bit removed from the city of ottawa and
00:09:27.380was able to i think you know not necessarily tune into what the innuendo is in the media but focus on what
00:09:34.820the evidence was before him and put it into the proper context and into the proper prioritization
00:09:40.500because again you know people can be released on any crime in canada no matter how heinous so it's
00:09:46.340a consideration of all three of those factors i think that the lawyer for tamara leach did did a good
00:09:52.180job of advancing the argument on a bail review and getting through some of those technicalities
00:09:57.380because it's not quite an appeal there's some you know certain issues that are are assumed to have
00:10:02.900been correct by the uh by the bail judge other issues can be challenged there's this concept of a
00:10:09.540change of circumstances uh one change of circumstance that i didn't really see argued that much which i
00:10:15.540was quite surprised is that the protest isn't there anymore yeah yeah the convoy the mischief ceases to
00:10:21.700exist right exactly and i know there's always the argument that it could come back but i think that
00:10:26.660that the landscape is very different right now is had the occupation as they call it been still there
00:10:33.300and tamara leach was released more of an argument could have been made that you know uh she could
00:10:40.180give moral support or do something to uh hinder the police in clearing out the area but the area is
00:10:45.780cleared out it's it's it's gone right so that's one change of circumstance from the time the bail
00:10:51.380hearing was first argued that i would argue uh makes it such that it's even less of a risk of her
00:10:58.820re-offending and less of a concern to the public overall i want to talk about some of the broader
00:11:06.500aftermath aspects of this i know you're representing the woman who was uh trampled by the police the
00:11:13.300mounted police in that famous video now and again i'm talking about this as someone who was pepper
00:11:18.340sprayed at the protest while doing my job as a journalist there's a another journalist a photographer
00:11:23.220with an agency i can't recall the name of immediately who was arrested zip tied thrown
00:11:27.940to the ground by police and he was later released there have been a number of incidents like this
00:11:32.820that have come up the only force the only violence in fact i've heard of from anyone came from law
00:11:38.180enforcement on that weekend when this was all basically dismantled by police so just either generally
00:11:45.140or on behalf of your clients specifically here what is the recourse available to people for this even
00:11:50.980with the emergencies act having been in effect at that time well the recourse available you have
00:11:57.380more recourse if you've been charged with an offense if you've been charged with an offense you can you
00:12:02.500can apply to the court for remedy under the charter your charges can be thrown out the court can make
00:12:08.740determinations and speak about the police's conduct uh the lack of recourse is what often exists when a
00:12:16.500person isn't charged we saw people as even far back as the you know the gas can seizures that took place
00:12:22.660earlier on in the protest where people were arrested their property seized and then they were released
00:12:27.780hours later so for those people i know uh for example the the lady who was trampled by the horse uh
00:12:33.860candace sarrow she's being represented by matthew wolfson in my office and uh she wasn't charged with
00:12:40.820anything but she is going to be through through the assistance of matt wolson bringing a professional
00:12:47.220standards complaint so that's a chance for the police to be formally disciplined for their conduct we're
00:12:55.220going to be doing the same thing for the lady doreen that you may have seen who was a video recording on
00:13:01.220her phone a police officer who walks up to her he walks up to her and says why are you pointing that in my face
00:13:07.300uh stop recording and they start grilling her about where she's from and then they start basically
00:13:13.060threatening her leave now or we're going to place you under arrest and and i've said this before but
00:13:18.580it bears repeating it's that the emergency act did give the police additional powers but they didn't
00:13:24.740give the police it didn't give the police unlimited powers and that's how the police were conducting
00:13:29.780themselves that weekend where basically whatever the individual officer or the police force as a whole
00:13:35.780this determined was necessary to do you needed to do or face being arrested and charged with the
00:13:41.940same thing as tamara leach or anybody else who was there continuing to protest yeah and one of the
00:13:47.780more concerning aspects was this reverse onus that police claimed you needed to prove that you had a
00:13:52.900lawful purpose not just to be in front of parliament hill but even as that video you just indicated which
00:13:58.340we played on the show last week uh shows to just walk down the street three or four blocks from parliament hill
00:14:04.740you had to prove to police that you had a reason and as i understand it and please correct me if i'm
00:14:09.700wrong here it happens often but detention has a very broad meaning it isn't just about having handcuffs
00:14:16.020thrown on you if police are stopping you and questioning you that is detainment is it not it is i mean
00:14:21.380there's psychological detention not not every interaction between the police and the public is a detention but
00:14:27.860certainly where the police is taking some degree of control over you and basically threatening you to
00:14:34.500say you know do as i say or we're going to place you under arrest i would make the argument that the police
00:14:39.140are are detaining a person and and for all the emergencies acts faults and there are many it didn't say you
00:14:44.740weren't allowed to film a public street no and and trudeau even said when announcing the emergency act he said this is what it's not and he said it is not a
00:14:53.860uh a restriction of the charter of rights and freedom and you go into the the emergency act where
00:14:59.860they set out the so-called red zone where they can secure an area that area the southern area of that
00:15:06.980area specified in the emergency act is wellington street the ottawa police decided that they were going
00:15:12.580to have an expanded red zone and they treated the rest of that area which wasn't specified in the
00:15:19.140emergencies act as their full discretion to determine it to be a red zone and treat people however they
00:15:26.580saw fit to treat them well i'm glad you're on this and you've been doing a great job on twitter and you
00:15:34.020have your twitter handle up on the screen there david amber at demystifying a lot of this for the lay
00:15:39.940people out there like myself so i appreciate it very much david amber lawyer in toronto thank you sir
00:15:45.300ottawa thanks for having me sorry i i knew ottawa we were talking about you being in ottawa
00:15:49.140i i'm i'm from london so they're all just like big cities that go into an amorphous blob to me but
00:15:54.100uh yes ottawa lawyer david amber thank you sir thanks for listening to the andrew lawton show
00:15:59.300support the program by donating to true north at www.tnc.news