Tamara Leach has been in custody since her bail hearing yesterday, awaiting a decision on whether or not she should be released on bail. On this episode of the Andrew Lawton Show, we speak with criminal lawyer David Anber about the bail hearing, the aftermath of the convoy, and the reasons behind the decision not to grant bail.
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 on0.99
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 country1.00
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 and1.00
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 could1.00
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 her0.70
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 face1.00
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 the0.77
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