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COVID-19

COVID-19, Hygiene Theatre, Masks, and Lockdowns “Solid Science” or Science Veneer?

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23 minute read

From the Fraser Institute

By Kenneth P. Green

Nearly two and a half years since COVID-19 overturned much of the world, vigorous debate
still exists over whether or not governments “got COVID-19 right.” That is, despite more
than two years for analysis and retrospective studies, it is unclear if governments—any governments—implemented the best policies (or even 2nd best policies) as the COVID pandemic exploded in 2020, and as it unfolded through 2021 and 2022.

This situation is troubling, as the world will undoubtedly face similar, and perhaps more severe pandemic challenges again in the future. Society needs to know what worked and what did not work, not only with regard to vaccines, but with regard to the many other interventions government deployed to fight the COVID epidemic.

One key dispute regarding what went right or what went wrong with regard to COVID policies revolves around whether or not the public policies promulgated by governments and public health authorities were science- or evidence-based. Governments, regulatory bodies, and public health institutions around the world were not only unified, but strident in their proclamations that policies were “following the science.” Skeptics of such pronouncements were given little attention at the time, and were more often than not simply attacked as being peddlers of misinformation, or dis-information, and were squelched in public discourse. This did not, however, settle the dispute.

In fact, the battle lines over this question—whether governments were actually following the science or evidence available at the time, or were merely asserting that they were doing so—have only hardened since the pandemic struck in 2020. Even as this essay is being written, for example, a war is raging across Twitter (now “X”) between a prominent COVID vaccine researcher (Peter Hotez), and people who question whether his representation of his work is honest. The questioners seek a public debate, but the scientist involved (backed by many other prominent colleagues) have declared the very idea of societal debate to be anathema to the idea of science itself. The “Twitter war” over this dispute has drawn in one of the world’s richest men (Elon Musk), one of the world’s loudest populist broadcasters (Joe Rogan), and a host of high-level scientists and heads of scientific agencies (Mikhail, 2023).

This dynamic, of public accusations of obstruction, and demonizing of those making the accusations, bodes poorly for the prospects of improving future policy by learning from experience. It also bodes poorly for future confidence in governmental policy responses to threatening situations. It seems self-evident that the public will be less likely to follow governmental recommendations or guidance in future if the consensus develops that they cannot be trusted when they claim to be telling the truth, or following the evidence, or, as such truth-telling was cast in this case, “following the science.”

So what is the answer? Were governments following the science or the evidence extant at the time of COVID’s emergence and progression through the population, or were they following the science selectively, creating more of a veneer of science than a solid policy foundation of science?

Let’s examine this question by examining the two highly controversial, major non-pharmaceutical interventions, or NPIs, imposed during the COVID pandemic. NPIs implemented throughout the COVID-19 outbreak were policies intended to slow or limit the spread of the virus, and to reduce risk of infection via measures of physical separation including: enhanced hygiene, social distancing (keeping separate from others at a distance of 2 meters), erecting physical air/particle barricades, wearing gloves, donning masks, accepting voluntary and involuntary isolation, and a variety of restrictions on assemblage, including closures of parks, businesses, schools, and houses of worship, etc.

Gathering restrictions/closures (bars, businesses, churches, schools)

Several articles have looked into the question of “what the science said” about gathering restrictions imposed in response to COVID-19: closures of businesses, schools, public gatherings, etc., as that science already existed in 2020, and before.

The Cochrane Library, a respected clearinghouse of scientific and medical information,
published one such retrospective look at “the science” conducted in mid-2020, and entitled Quarantine Alone or in Combination with Other Public Health Measures to Control COVID-19: A Rapid Review (Nussbaumer-Streit, 2020; for simplicity, Nussbaumer).

Nussbaumer searched for studies related to quarantine efficacy on the PubMed, Ovid MEDLINE, WHO Global Index Medicus, Embase, and CINAHL databases on June 23, 2020, only about six months into the pandemic. Nussbaumer specifically searched for “Cohort studies, case-control studies, time series, interrupted time series, case series, and mathematical modelling studies that assessed the effect of any type of quarantine to control COVID-19.” The authors even included studies on SARS (Severe Acute Respiratory Syndrome) and MERS (Middle East Respiratory Syndrome) for indirect evidence that might apply to COVID-19. The net was cast widely. Nussbaumer identified 51 studies that met their criteria for inclusion in their analysis. Ten were modeling studies on COVID19; 15 were modelling studies of SARS and MERS; and the team found four observational studies
on SARS and MERS.

Nussbaumer found that while modeling studies were uniform in predicting that quarantine, in a variety of forms, would effectively reduce transmission of SARS, MERS, or COVID-19, the quality of evidence from these modeling studies was characterized as having low certainty or very low certainty, and the studies were, primarily, as the authors themselves noted, “modeling studies that make parameter assumptions based on the current, fragmented knowledge.”1

1 The four observational studies identified suggested quarantine was effective as a control strategy for SARS and MERS. However, Nussbaumer deemed them unlikely to be reflective of COVID-19 controls.

School closures

As discussed in a separate essay on the issue of school closures and educational performance (McPherson and Green, 2023), the question of whether school closures reduced either children’s risk directly, or society’s risk of COVID-contagion vie exposure to children, remains an important and particularly contentious area of debate. We are still trying to assess the damage done to children’s educational attainment in the nearly three years of intermittent school closures in Canada, and it will be some time before the extent of that damage is well understood. Longer term impacts on children’s mental health and social development will likely take many years to ascertain.

When COVID-19 struck in 2020, understanding how school closures related to the spread of a virus through school populations were based mostly on studies of Influenza pandemics that preceded COVID.

In another Cochrane Library review of studies on school closures published as of December 2020, the team of Krishnaratne et al. surveyed research on the issue of school closures published in “the Cochrane Central Register of Controlled Trials (CENTRAL), MEDLINE, Embase, and the Educational Resources Information Center, as well as COVID-19-specific databases, including the Cochrane COVID-19 Study Register and the WHO COVID-19 Global literature on coronavirus disease” (2022). They found 38 unique studies in their analysis, 33 of which were modeling studies, three of which were observational studies, one study that was described as “quasi-experimental,” and one “experimental study with modelling components.”

Krishnaratne et al. concluded that

  • a broad range of measures implemented in the school setting can have positive impacts
    on the transmission of SARS-CoV-2, and on healthcare utilisation outcomes related
    to COVID-19. The certainty of the evidence for most intervention-outcome combinations is very low, and the true effects of these measures are likely to be substantially
    different from those reported here. Measures implemented in the school setting may
    limit the number or proportion of cases and deaths, and may delay the progression
    of the pandemic. However, they may also lead to negative unintended consequences,
    such as fewer days spent in school (beyond those intended by the intervention).
    (Krishnaratne et al., 2022)

This aligns with by another review of the literature published in the British Medical Journal in 2023. In that paper, Hume et al. characterized the findings of 26 systemic reviews pertinent to the school-transmission question. They conclude, “We found evidence that both school closures and in-school mitigations may have had a beneficial impact on reducing COVID-19 transmission in the community. However, the GRADE [a measure of research quality] certainty was very low in both outcomes. We also found that school closures may have had negative impacts on children, including reduced learning, increased anxiety and increased rates of obesity. However, GRADE certainties were low or very low in these outcomes. Overall, confidence in the included SRs was generally low or critically low” (Hume, et al., 2023).

Other studies pre-dating COVID-19 also raised questions about the potential utility of school closures. One of the more interesting studies on the question from much farther back—a decade back, in fact—came out of University College London, by a research
team that included Neil M. Ferguson, the same researcher whose initial modeling of COVID-19 shaped the world’s response to the pandemic. That study concluded regarding school closures for Influenza, “Although some health benefits can be expected, there is
still substantial debate about if, when, and how school closure policy should be used. There is no consensus on the scale of the benefits to be expected, and recent reviews highlighted the lack of evidence for social distancing measures such as school closure. Even if benefits are substantial, they must be weighed against the potential high economic and social costs of proactively closing schools, which also can have negative effects on key workers since, for example, many doctors and nurses are also parents” (Cauchemez et al, 2009).

  • “School closures may have had negative impacts on children, including reduced learning, increased anxiety and increased rates of obesity.”

Enhanced Hygiene: Hand-washing, mask-wearing, and social distancing

The Cochrane Library has again been a world leader in performing retrospective reviews of the effectiveness (and state of knowledge) regarding interventions intended to manage the COVID-19 pandemic.

In 2020, the research team of Jefferson et al. searched the extant scientific literature and
published its findings in the Cochrane Library’s Physical Interventions to Interrupt or Reduce the Spread of Respiratory Viruses. Searching an array of medical and scientific literature indices and databases, the Jefferson team amassed a total of 67 studies which met the criteria for inclusion in their retrospective analysis of the evidence regarding enhanced hygiene (hand-washing and mask-wearing). All of these studies pre-dated the COVID-19 pandemic and focused on previous disease outbreaks of influenza, including the highly virulent H1:N1 variant that wrought worldwide havoc in 2009.

As there is unusually contentious debate over Cochrane’s research on this topic (a fairly vicious battle between the “masks don’t work” and “masks do work” tribes), it is best to read the team’s conclusions in the authors’ own words:

  • The high risk of bias in the trials, variation in outcome measurement, and relatively low compliance with the interventions during the studies hamper drawing firm conclusions and generalising the findings to the current COVID-19 pandemic. There is uncertainty about the effects of face masks. The low-moderate certainty of the evidence means our confidence in the effect estimate is limited, and that the true effect may be different from the observed estimate of the effect. The pooled results of randomized trials did not show a clear reduction in respiratory viral infection with the use of medical/surgical masks during seasonal influenza. There were no clear differences between the use of medical/surgical masks compared with N95/P2 respirators in healthcare workers when used in routine care to reduce respiratory viral infection. Hand hygiene is likely to modestly reduce the burden of respiratory illness. Harms associated with physical interventions were under-investigated. (Jefferson et al., 2020: 2–3).

Team Jefferson would update this research in 2023, amassing an expanded set of 78 randomized clinical trials involving physical interventions that had been conducted prior to the time of search (Jefferson et al., 2023). Most of those studies were also conducted prior to the COVID-19 outbreak, and studied the effectiveness of physical interventions against various types of influenza. However, six of the studies included in the 2023 review were conducted during the COVID-19 pandemic.

I’ll also reproduce this latest summary of findings from Jefferson et al. in the authors’ own
words:

  • There is uncertainty about the effects of face masks. The low to moderate certainty
    of evidence means our confidence in the effect estimate is limited, and that the true
    effect may be different from the observed estimate of the effect. The pooled results
    of RCTs did not show a clear reduction in respiratory viral infection with the use of
    medical/surgical masks. There were no clear differences between the use of medical/
    surgical masks compared with N95/P2 respirators in healthcare workers when used in
    routine care to reduce respiratory viral infection. Hand hygiene is likely to modestly
    reduce the burden of respiratory illness, and although this effect was also present
    when ILI [Influenza-Like Illness] and laboratory-confirmed influenza were analysed
    separately, it was not found to be a significant difference for the latter two outcomes.
    Harms associated with physical interventions were under-investigated. (Jefferson et
    al., 2023: 3).

Discussion

Governments and government policies were deeply involved in the development, definition, and deployment of both pharmaceutical and non-pharmaceutical interventions throughout the COVID pandemic, far more directly than was routinely seen in past public health crises or in contagious disease outbreaks. Whereas in the past one might have consulted with one’s doctor to get an idea about what to do to protect one’s health, there was no need for that in 2020: government pronouncements at the highest levels of health care bureaucracy were loud, clear, and insistent from the earliest days of the COVID pandemic.

At the time, governments, regulatory agencies, and a vast panoply of public health authorities asserted that they were, in all cases, diligently “following the science” in the policy guidances and prescriptions they wrote for society. “Following the science” became a constant refrain in explaining everything government did. It was also a bludgeon when used in the negative: “not following the science” was applied to anyone critical of what government did. And despite the fact that science is generally a relatively slow process of theory, experimentation, and publication of findings, somehow, as of January 2020, “the science” took to changing on a daily, even hourly basis.

Despite government assertions that they were following the science, reviews of the literature on the subject extant at the time suggest that governments were selectively interpreting the studies that already existed.

In fact, studies regarding the effectiveness of the measures governments adopted to fight COVID were relatively few in number, were mostly in the past tense as of 2020, were largely characterized as having mixed results, were highly uncertain, and were primarily driven by computer models.

The “consensus” of reviews of the literature extant at the time, conducted both during 2020 and afterward, come to basically the same conclusions. Specifically, they find with regard to the non-pharmaceutical interventions of enhanced hygiene, mask-wearing, and restrictions on gathering that while these NPIs might have helped, they might also have harmed, but that there was no strong evidence one way or the other.

Thus, it’s safe to say that while governments did not actively lie about “following the science,” they most certainly misrepresented “the science” in that they exaggerated certainty (a constant problem of government), they chose to believe models over observational studies, they only acknowledged half the science (about slowing transmission, not about causing harm to people economically and socially), and they spoke in tones of absolute certainty that denied the essence of science. That essence understands that knowledge is provisional, that this was a novel virus, and that there was, in fact, no
solid reason to find prior research outcomes dispositive in terms of giving guidance about what to do.

In acting with such certainty, governments not only did harm to their own future credibility, but they did harm to the credibility of public health institutions, biomedical institutions, pharmaceutical institutions, and others that governments chose to use as fig-leaves to obscure what were, in very large measure, arbitrary choices that governments made based on fragmentary, cherry-picked, model-dominated studies that mostly pre-existed the COVID pandemic. At the same time, governments also suppressed dissent among and elevated the authoritarian voices and managers of those institutions.

In an ideal world, there would be some process by which our public health agencies, at least, could come to recognize and admit how badly they managed to “follow the science” on COVID-19, and how vast was the gulf between their expressions of absolute certainty and what the scientific literature showed at the time was, in fact, a sea of uncertainty. Until such a “truth and reconciliation” process takes place, it is hard to see how public trust in public health institutions might be restored.

About the author

Kenneth P. Green is a Fraser Institute senior fellow and author of over 800 essays and articles on public policy, published by think tanks, major newspapers, and technical and trade journals in North America. Mr. Green holds a doctoral degree in environmental science and engineering from UCLA, a master’s degree in molecular genetics from San Diego State University, and a bachelors degree in general biology from UCLA.

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Alberta

Alberta court upholds conviction of Pastor Artur Pawlowski for preaching at Freedom Convoy protest

Published on

From LifeSiteNews

By Clare Marie Merkowsky

Lawyers argued that Pastor Artur Pawlowski’s sermon was intended to encourage protesters to find a peaceful solution to the blockade, but the statement was characterized as a call for mischief.

An Alberta Court of Appeal ruled that Calgary Pastor Artur Pawlowski is guilty of mischief for his sermon at the Freedom Convoy-related border protest blockade in February 2022 in Coutts, Alberta.

On October 29, Alberta Court of Appeal Justice Gordon Krinke sentenced the pro-freedom pastor to 60 days in jail for “counselling mischief” by encouraging protesters to continue blocking Highway 4 to protest COVID mandates.

“A reasonable person would understand the appellant’s speech to be an active inducement of the illegal activity that was ongoing and that the appellant intended for his speech to be so understood,” the decision reads.

Pawlowski addressed a group of truckers and protesters blocking entrance into the U.S. state of Montana on February 3, the fifth day of the Freedom Convoy-styled protest. He encouraged the protesters to “hold the line” after they had reportedly made a deal with Royal Canadian Mounted Police to leave the border crossing and travel to Edmonton.

“The eyes of the world are fixed right here on you guys. You are the heroes,” Pawlowski said. “Don’t you dare go breaking the line.”

After Pawlowski’s sermon, the protesters remained at the border crossing for two additional weeks. While his lawyers argued that his speech was made to encourage protesters to find a peaceful solution to the blockade, the statement is being characterized as a call for mischief.

Days later, on February 8, Pawlowski was arrested – for the fifth time – by an undercover SWAT team just before he was slated to speak again to the Coutts protesters.

He was subsequently jailed for nearly three months for what he said was for speaking out against COVID mandates, the subject of all the Freedom Convoy-related protests.

In Krinke’s decision, he argued that Pawlowski’s sermon incited the continuation of the protest, saying, “The Charter does not provide justification to anybody who incites a third party to commit such crimes.”

“While the appellant is correct that peaceful, lawful and nonviolent communication is entitled to protection, blockading a highway is an inherently aggressive and potentially violent form of conduct, designed to intimidate and impede the movement of third parties,” he wrote.

Pawlowski was released after the verdict. He has already spent 78 days in jail before the trial.

Pawlowski is the first Albertan to be charged for violating the province’s Critical Infrastructure Defence Act (CIDA), which was put in place in 2020 under then-Premier Jason Kenney.

The CIDA, however, was not put in place due to COVID mandates but rather after anti-pipeline protesters blockaded key infrastructure points such as railway lines in Alberta a few years ago.

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C2C Journal

Mischief Trial of the Century: Inside the Crown’s Bogus, Punitive and Occasionally Hilarious Case Against the Freedom Convoy’s Tamara Lich and Chris Barber, Part I

Published on

From the C2C Journal

By Lynne Cohen
In his judicial review of the Liberals’ response to the 2022 Freedom Convoy protest, Federal Court Justice Richard Mosley ruled that “there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable.” With Prime Minister Justin Trudeau’s draconian actions thus exposed as unnecessary and excessive – in other words, illegal and unconstitutional – what now awaits Tamara Lich and Chris Barber, who each face up to 10 years in jail for playing key roles in the protest? In the first of a two-part series, Lynne Cohen charts the lengthy and vindictive prosecution of the pair, from their first appearance in downtown Ottawa to their initial arrest and pre-trial treatment.
As the 13-month-long trial of Freedom Convoy organizers Tamara Lich and Chris Barber lurched into its final days at the Ottawa Courthouse, Assistant Crown Attorney Siobhain Wetscher reached for her highest dudgeon and broadest hyperbole. In making her closing arguments, Wetscher declared this to be an “overwhelming case” backed by an abundance of “significant evidence.” Attempting to draw the focus onto the assembled facts, she swatted away claims it was a politically-motivated prosecution. “The defendants are not on trial for politics,” Wetscher stressed. “They crossed the line, objectively. The smell, the noise, the harassment were not lawful!” Given the reaching tone and considering the actual weight of the evidence, it often seemed as if Wetscher was trying to convince herself as much as Ontario Court Justice Heather Perkins-McVey.

To back their case, Wetscher and fellow Assistant Crown Attorney Tim Radcliffe had prepared a PowerPoint presentation that was projected onto two screens in Courtroom 5 during their final arguments. Entitled “R. v. Christopher Barber & Tamara Lich: Closing Submissions of the Crown”, the 106-slide exhibit began by listing the various charges: committing mischief, obstructing a peace officer and blocking a highway as well as counselling others to commit mischief, obstruct, block a highway and disobey a court order (the last one against Barber only). It also offered a quick guide to dozens of previous mischief, obstruction and intimidation judgements considered relevant to the case.

An “overwhelming case”: According to the closing arguments of Assistant Crown Attorneys Siobhain Wetscher (top left) and Tim Radcliffe (top right) presented in the Ottawa Courthouse, the trial of Freedom Convoy organizers Tamara Lich and Chris Barber was not about politics, but the fact the pair “crossed the line” during the protest. (Source of bottom photo: CTV News)

Beyond a useful summary of the charges and case law, the Crown’s slideshow was also meant as one last reminder of the “significant evidence” arrayed against the Freedom Convoy pair. It thus contained numerous exhibits already submitted during the 45-day trial, including maps of the protest area, snippets from TikTok videos, transcripts from press conferences, witness testimony and interrogations as well as court orders, texts, letters, handbills, emails, Facebook posts and so on. As such, it serves as a kind of multimedia scrapbook for the entire three-week-long protest in Ottawa during January and February 2022.

And as is usually the case with scrapbooks, there were also plenty of photographs, presumably selected for the same reason as all the other evidence – because they bolster the case against Lich and Barber. In particular, the pictures are meant to provide proof of their close partnership in leading an unlawful protest and convincing others to break the law. But there’s a problem with this plan: none of the photos show either doing anything other than participating in an entirely peaceful, apparently constitutional and often quite-joyous-looking protest.

Slide 61, for example, shows the duo in winter gear hugging each other with big grins on their faces. Slide 76 has a smiling Lich explaining on TikTok that the protest is “like Canada Day on steroids.” Slide 100 is a screenshot of Lich on the verge of being arrested telling her Facebook supporters that, “I pray and hope that you will make your choices from love…we can only win this with love.”

And then there’s slide 106. The presentation’s last slide pairs a quote from Wetscher and Radcliffe with yet another picture of Lich and Barber. The text reads, “The Crown respectfully requests that the court find Mr. Barber and Ms. Lich guilty of all counts as charged.” The photo shows them together once more – again smiling broadly. This time they’re standing with Mike Stack, another protester, in front of Barber’s truck “Big Red”. If the point of this photo is to prove once and for all that Lich and Barber were engaged in a dangerous, insurrectionist conspiracy, it fails miserably.

The Crown’s 106-slide closing presentation served as a multi-media scrapbook of the three-week-long Freedom Convoy protest, inadvertently highlighting the event’s joyousness and peacefulness. Of note, the final slide (bottom) shows a smiling Lich, Barber and fellow protester Mike Stack – while Barber’s dog Zippy enjoys the view from the driver’s seat of Barber’s truck “Big Red”.

And hilariously – as a close inspection reveals Barber’s dog Zippy sitting in Big Red’s driver’s seat, mouth agape in a wild doggy smile, looking down upon the trio as if to say, “Look at me. I’m driving the truck!” For a criminal case that threatens Lich and Barber with a decade in jail for allegedly imperilling the very foundation of public order across Canada, and has consumed more than a year of precious court time, Zippy’s photo-bomb doesn’t answer the question of guilt, it raises an entirely different one.

Is this really the best the Crown can do?

Freedom’s Just Another Word for Long-Haul Trucking

On January 23, 2022, the Freedom Convoy began rolling out from Canada’s West Coast towards Ottawa, while other smaller groups of vehicles streamed westward from Quebec and other points. Three months earlier, the Government of Canada had unexpectedly announced that cross-border truckers who had not received a course of Covid-19 vaccination would have to isolate for up to two weeks when crossing the U.S.-Canada border, overturning an earlier exemption for the trucking industry. Despite furious pushback, Prime Minister Justin Trudeau refused to relent and the mandate came into effect on January 15.

In response, thousands of truckers and others in cars and pickup trucks from all over the country joined the procession to make their feelings known, while thousands more waved them on from freeway overpasses and small towns along the way. Lich and Barber were involved in this movement from the beginning – creating social media accounts, setting up fundraising efforts and building an internal support structure – although the convoy itself defied organization. Lich and Barber may have been instrumental, but they were not almighty.

Let those truckers roll, 10-4: In January 2022, thousands of vehicles from across the country converged on Ottawa to protest a dramatic change in the federal government’s Covid-19 vaccine policy for cross-border trucking. (Sources of photos: (top) Andrei Filippov/Shutterstock; (bottom) GoToVan, licensed under CC BY 2.0)

Lich was born in Saskatoon to a Métis family and adopted as an infant. She has lived a varied life on the Prairies, working mainly as an administrator in the energy services sector and raising three children. She currently lives in Medicine Hat, Alberta with her husband Dwayne, who farms. She’s proud of her native heritage and also boasts of being a singer in a garage rock band. Lich has been politically active for many years, typically drawn to a robust defence of Western Canada’s political interests and consistently opposing the current Trudeau government. In 2018 she joined the “Yellow Vest” movement, and has also been a member of the Alberta Wildrose Party and the federal Maverick Party.

But it was the federal Liberals’ draconian response to the Covid-19 pandemic that pushed her activist inclinations into overdrive. “What kind of country had Canada become?” Lich would later write about the impact of vaccine mandates. “We had governments who seemed far more obsessed with promoting vaccines…than they did with the reality and the struggles of the Canadian people. Someone had to stop it.”

As for Barber, he hails from the small southwest Saskatchewan city of Swift Current. The 49-year-old married father of two children owns and operates a trucking firm, C.B. Trucking Limited, which specializes in long hauls of agricultural equipment. His popular TikTok account @bigred19755 provided him with a platform to complain – often impishly – about the impact of government regulation on the trucking business. As would be expected, the government’s response to the Covid-19 pandemic had a major impact on his business. Barber got the vaccine shots as required, but disagreed with how they were imposed.

By the time they got to Ottawa: Lich (left, with husband Dwayne) of Medicine Hat, Alberta, and Barber (right, with Big Red) of Swift Current, Saskatchewan, found themselves leading the Freedom Convoy as a result of their shared opposition to federal Covid-19 vaccine mandates.

“I was at risk of losing all that hard work [building my company] to not being able to cross the border anymore,” he explained to True North News. As his frustration with Covid-19 rules grew, Barber leveraged his status on social media to become a leading voice for truckers’ outrage over vaccine policy, which in turn spurred him to help launch the Freedom Convoy. “I was angry, very angry,” Barber later explained. “The provincial mandates, the federal mandates…it seemed like it was an over-reach.” From 30,000 followers prior to the convoy, Barber’s TikTok account grew to 170,000 by the time the truckers rolled into Ottawa.

When Lich, Barber and the rest of the original convoy reached Ottawa in late January, numerous other groups and individuals unaligned with the initial organization had joined the protest for their own reasons, and with their own objectives, timelines and standards of behaviour. What most participants had in common was a deep antipathy towards the Trudeau government and a desire to make this known in the heart of the nation’s capital. Their right to do so peacefully was initially acknowledged by the Ottawa Police Service (OPS). As they arrived, OPS officers met the truckers, showed them where to park and took steps to allow them to store provisions. For the first week or so, Lich and Barber worked closely with the cops to keep emergency routes open and relations cordial. This congenial situation eventually soured, however, as the protesters lingered.

Just over two weeks later, on February 14 the federal government took the unprecedented step of invoking the Emergencies Act based on the Liberal Cabinet’s assertion that the protest constituted a Canada-wide “public order emergency” that could not be dealt with under existing laws and which involved threats of “serious violence against persons or property.” This essentially criminalized the Freedom Convey and all its supporters. Riot police then moved to physically clear the protest area, and 196 protesters in the immediate area were arrested. Another 76 individuals were arrested elsewhere in Canada at around the same time for attending other protests, including blockades at three border crossings in Ontario, Manitoba and Alberta.

Crushing the “insurrection”: Initially accommodated by the Ottawa Police Service, the Freedom Convoy protest was later deemed a national “public order emergency”. Shown at top left, police circulate throughout the protest on February 9; top right, police hand out notices to protesters on February 17; at bottom, police confront and arrest protesters on February 18. (Sources of photos: (top left) The Canadian Press Images/Lars Hagberg; (top right) The Canadian Press/Justin Tang; (bottom left and right) Michel Elzo/Shutterstock)

The federal Liberals also bullied Canada’s chartered banks into freezing the bank accounts of many people connected to the protest. Lich and Barber had their personal finances locked and both were later arrested. Lich’s single, initial charge was for “counselling to commit the offence of mischief”; Barber was charged with counselling mischief, as well as obstruction and ignoring a court order. While half-a-dozen other charges were later added to the pair’s alleged offences, mischief was the common thread that connected them to the vast majority of other protesters arrested during the crackdown.

This prevalence of mischief seems a rather surprising fact. Amidst what was supposedly a massive and violent breakdown in public order, mischief – or counselling others to be mischievous – turned out to be the most serious crime the police could detect. In Ottawa there were no assaults, no murders, no guns or bombs, no fraud or extortion, no rioting and looting, no treason. Nothing, in other words, that might have signalled that an actual (as opposed to imagined or media-manufactured) insurrection was underway or imminent.

There was, however, one criminal act that provably did occur in Ottawa during the protests. Two men attempted to set an apartment building’s entryway alight and then sealed the doors shut. This appalling and dangerous act was immediately attributed by some to the protesters. Ottawa mayor Jim Watson, for example, stated it “clearly demonstrates the malicious intent of the protesters occupying our city.” Police soon established, however, that the fire had no link to anyone connected to the Freedom Convoy.

Legal Mischief

While the term conjures up images of a misbehaving toddler, section 430 of the Criminal Code of Canada defines mischief very broadly as the willful destruction of property or interference with others’ lawful enjoyment of their own property. It should not be taken too lightly, cautions Michael Spratt, an Ottawa criminal lawyer. “Yes, mischief can be something very minor, for example drawing graffiti on a public space, or chalking a sidewalk,” Spratt says in an interview. “But mischief can also include very serious offences, for example, occupying and blockading the national capital and inflicting extreme harm on its residents, businesses, and communities.”

As an indictable offence, mischief carries a maximum penalty of 10 years in prison. Since lawyers for Lich and Barber readily admit that mischief occurred during the protest, Spratt says the only legal issue to be decided in court is whether the pair were at fault “either as a party, a participant, an encourager, an abettor or a leader of the convoy who bears some responsibility for it.” In other words, Lich and Barber could be found guilty even if they didn’t commit any mischief themselves. That would, however, require crafting a rather elaborate theory to explain a rather mundane crime.

Not every legal observer is convinced mischief best fulfills the government’s claim that it was facing an incipient violent insurrection, as is required by the Emergencies Act. According to University of Ottawa law professor Joao Velloso, most mischief charges in Canada are actually quite minor and usually punished without any jail time. Reliance on what he, unlike Spratt, views as a rather insignificant crime as the means to punish Freedom Convoy protesters seems like “a safe, bureaucratic choice for the police,” Velloso explained to The Canadian Press, adding it is “a less demanding choice in terms of police work.”

Much ado about mischief: While Ottawa criminal lawyer Michael Spratt (left) says mischief can include “very serious charges”, University of Ottawa law professor Joao Velloso (right) observes that most mischief charges in Canada are minor and punished without any jail time. (Sources of photos: (left) Michael Spratt; (right) Errol McGihon/Saltwire)

Plus, it seems doubtful the entirety of the chaos caused by the Freedom Convoy can be laid at the feet of Lich and Barber. Plenty of other participants deserve a large share of the blame, Velloso said, pointing especially to the police. “The seriousness of the mischief during the protest was produced by lack of policing,” he asserted. This echoes the February 17, 2023 findings of the Public Order Emergency Commission chaired by Justice Paul Rouleau, which also concluded that “policing failures” – in particular, inviting the truckers into the downtown area without any long-term plan to remove them – “contributed to a situation that spun out of control.”

In deciding whether the mischief charges faced by Lich and Barber are a big deal or not, it helps to consider the fate of other Freedom Convoy protesters faced with the same charge, many of whom have been represented by the Justice Centre for Constitutional Freedoms (JCCF). Steven Vardy, for example, was arrested while driving in downtown Ottawa after the Emergencies Act had been imposed and charged with obstruction. The charge of mischief was added after police discovered Vardy had narrated a video about the protest. The Crown dropped the obstruction charge before trial, and after two days in court the judge determined the mischief charge was equally untenable, and it too was dismissed.

Christine DeCaire, another JCCF client, was arrested while standing alone on Nicholas Street in downtown Ottawa as police moved to enforce the Emergencies Act on February 18. She was acquitted at trial, a result recently confirmed after the Crown appealed. JCCF client Ben Spicer was charged with mischief, obstruction and weapons offences after police grabbed him off the street during the protest and found a pocket knife and bear spray in his backpack. Spicer was then secretly recorded in a police van. After a six-day trial, all charges were dropped because he’d been arrested unlawfully. Evan Blackman, yet another JCCF client, was charged with mischief and obstruction, and had three bank accounts frozen. Drone footage later showed Blackman holding back protesters in order to de-escalate the situation. And just before he was arrested, he could be seen singing “O Canada”. The judge dismissed all charges after a one-day trial because of evidentiary weakness; the Crown is appealing.

Feeling mischievous: Police arrested 196 protesters in Ottawa after the Emergencies Act’s invocation, charging many with mischief and obstruction. Most had their charges later dropped or were found not guilty at trial, with the Justice Centre for Constitutional Freedoms playing a key role in these successful defences. (Source of photoThe Canadian Press/Justin Tang)

Not every mischief case has collapsed in calamitous fashion, however. Publicity-seeking protester Tyson “Freedom George” Billings, who was not represented by the JCCF and had no direct link to Lich or Barber, pleaded guilty to counselling others to commit mischief. The other charges against him were dropped and he was sentenced to time served, about four months. And Pat King, who also garnered ample attention during the protest, is still awaiting the verdict of his mischief trial, which lasted three weeks. King and Billings were notable for their confrontational and often uncooperative relationship with the police during the protest, in sharp contrast with Lich and, for the most part, Barber.

Another exception to the raft of failed cases is the fate of the so-called “Coutts Four”. Separately from the Ottawa protest, Chris Carbert, Anthony Olienick, Chris Lysak and Jerry Morin were among the most hard-line of hundreds of participants at a tense, weeks-long standoff at the Coutts, Alberta border crossing. On February 15 the four were arrested and charged with conspiracy to murder police officers as well as other weapons and mischief offences, upon which the whole protest disintegrated. Meanwhile, up to 100 other protesters at the site were charged with provincial regulatory offences.

Mischief ignored: The “Coutts Four” – (left to right) Chris Carbert, Anthony Olienick, Jerry Morin and Christopher Lysak – were found guilty of serious crimes arising from a tense blockade at the Coutts, Alberta border crossing. While Olienick and Carbert were also found guilty of mischief, their six-month sentences for this crime are to be served concurrently with their other, longer sentences. (Source of montage: CBC)

This past February, Lysak pled guilty to possession of a weapon in an unauthorized place and Morin pled guilty to conspiracy to traffic firearms – clearly serious offences, but a vast reduction from the potential life sentences they faced. Both were sentenced to time served. More recently, Olienick and Carbert each received sentences of six-and-a-half years for various weapons offences. As for their mischief charges, each received an additional six-month sentence to be served concurrently with the other, more serious convictions. Finally, an Alberta law firm recently announced that of nearly 50 clients facing provincial charges for participating in the Coutts border protest, all either had their cases dropped or resolved for a nominal fine of $1 each.

At this point, Lich and Barber appear to be the only remaining major participants from the entire national saga who are still available to punish.

“Prosecutorial Vendetta”

While outcomes have varied, a clear pattern emerges from a survey of mischief charges laid during the Emergencies Act. Most have been dismissed or returned with a not guilty verdict after only a few days in court. A few – such as Billings’ guilty plea – have resulted in a minor sentence befitting the minor character of the crime itself. For Olienick and Carbert, their guilty verdicts for mischief had no impact on their overall jail time; they faced much more serious charges, and their mischief was essentially ignored. And the mischief trial for Pat King, who is still awaiting his verdict, was completed in three weeks.

By comparison, the trial of Lich and Barber stretched into a 13-month epic, comprising 45 trial days. All for a collection of rather modest mischief and obstruction charges. Why would that be?

The answer, according to Ari Goldkind, a high-profile Toronto criminal defence lawyer, lies in the exact thing Wetscher tried so hard to wave away during her concluding statement: politics. “There is no question whatsoever that this is a political trial,” Goldkind states emphatically in an interview. For the Trudeau government to justify its suspension of Canadians’ civil liberties through the Emergencies Act requires an identifiable villain or two. Lich and Barber fit that bill. The length and unprecedented vigour with which the Crown has pursued the pair – Lich especially – as well as the manner in which the trial has dragged on, argues Goldkind, suggest there’s a “prosecutorial vendetta” against them.

“Prosecutorial vendetta”: Referring to Lich and Barber, high-profile Toronto criminal defence lawyer Ari Goldkind says, “There is no question whatsoever that this is a political trial.” (Source of photo: Lorenda Reddekopp/CBC)

 

 

 

 

 

 

When Lich herself arrived in Ottawa, the diminutive, then-49-year-old Métis grandmother quickly became the public “face” of the protest. At a February 3 press conference, for example, she was introduced as “the spark that lit this fire and the leader of this organization.” And while she claims in her book Hold the Line: My story from the heart of the Freedom Convoy that such a description “wasn’t accurate,” she nonetheless admits she filled a necessary role. “I guess I found a talent I didn’t know I had before,” she writes, speculating that her time spent on stage with her band might have prepared her for all the attention. “But I mostly feel like it was guided by God,” she adds.

While the Freedom Convoy was essentially ungovernable, comprised as it was of many disparate groups and publicity-seeking, independent-minded individuals, Lich tried her best to put her own calm and reasonable stamp on the proceedings. Throughout the protest, Lich’s efforts were observably peaceful and without any apparent mal intent. One of her first acts was to set up an independent group of accountants to handle the flood of donations financing the protest to prevent any suggestion of financial impropriety. In her dealings with the police, she always tried to find common ground – a fact readily acknowledged by police witnesses during the trial. Sergeant Jordan Blonde of the OPS protest liaison team, for example, noted in his testimony that Lich was always “polite” in his dealings with her, and that the protest itself was comprised of “many different groups and factions… [and] unattached people” who were not “aligned with anybody.”

In her own interactions with the protesters, over whom she had no real control, Lich repeatedly stressed the protest’s peaceful nature and worked tirelessly to rid the movement of disreputable or hateful characters. She even cobbled together a deal with Ottawa mayor Watson to move some trucks out of the downtown area; ironically, that deal went into effect on the same day as the Emergencies Act was invoked. As her lawyer Lawrence Greenspon observed in a brief courthouse lobby interview, “She is a genuine, very pleasant person, and almost a throwback to the peace-and-love days. She was preaching all along that ‘we only wanted a peaceful, non-violent demonstration.’”

“A throwback to the peace-and-love days”: According to her lawyer Lawrence Greenspon (at left centre, in barrister’s robe), Lich was a source of calm and grace throughout the protest and “only wanted a peaceful, non-violent demonstration.” (Source of photo: The Canadian Press/Adrian Wyld)

Perhaps it’s this “peace-and-love” attitude that has provoked such spite towards her. Whatever the reason, the official animosity has been painfully obvious. While the physically-imposing Barber was released on bail less than 48-hours after his arrest, Lich spent 18 days awaiting bail. At her first bail hearing, Ontario Justice Julie Bourgeois claimed Lich posed such a risk to the “physical, mental and financial health and well-being” of the people of Ottawa that she denied her application outright. Only after a bail review hearing several weeks later was Lich finally released pending trial. As Goldkind points out, many extremely violent and/or repeat offenders in Canada spend no time at all in jail following their arrest. This, as many critics observe, is the result of the Liberals’ 2019 bail reform package widely derided as a “catch-and-release” policy; it apparently doesn’t apply to Lich.

When she was finally set free, Lich returned to Alberta saddled with a long list of bail conditions, including that she neither publicly support the protest nor have any contact with other protest organizers unless a lawyer is present. “After weeks of fighting for Canadians’ right[s] and freedoms, I was losing so many of mine,” she laments in Hold the Line. It was because of these efforts, however, that in June 2022 it was announced that Lich had been awarded the annual George Jonas Freedom Award, sponsored by the JCCF. Naturally enough she wanted to go to Toronto to accept the honour in person. But before she could, the Crown came after her yet again.

At a court hearing necessitated by the award (since her bail conditions also banned her from setting foot in Ontario), Crown prosecutor Moiz Karimjee argued that simply by accepting the honour, Lich had violated the terms of her bail and should be locked up again. Such an absurdity was quickly brushed aside by the presiding judge, who ruled she could travel to Ontario to attend the celebration, provided she abided by the remainder of her bail restrictions. While there, however, Lich was photographed standing beside another convoy participant, Tom Marrazzo.

The fateful photo: When she went to Toronto to accept the 2022 George Jonas Freedom Award at a gala presentation, Lich was photographed beside fellow protester Tom Marrazzo (second from right) with lawyers standing just off-camera. This led to a Canada-wide warrant for her arrest and another 31 days in jail. (Source of photo: CBC)

 

 

 

 

 

As she recalls in her book, “Lawyers were standing just outside the frame” when the picture was snapped, in fulfilment of her bail conditions. No matter. When the lawyer-less picture began circulating on social media after she’d returned home, Karimjee issued a Canada-wide arrest warrant in her name. Two homicide detectives were then dispatched from Ottawa to pick Lich up in Medicine Hat; the two burly detectives slapped her in leg shackles for the trip to the Calgary airport. You can’t be too careful with grandmothers.

At her next bail hearing, the Crown argued that the decade of prison time Lich faced made her a flight risk and that she should be kept in jail until her trial was over – a move that would have resulted in several years of imprisonment, regardless of the verdict. To this request, Superior Court Justice Andrew Goodman asked Karimjee if he could name a single mischief case in Canada that had resulted in a 10-year sentence. When Karimjee demurred, Goodman set Lich free once more.

In his ruling, Goodman offered his own expert opinion on the fate awaiting Lich. She “is charged with mischief and obstructing police-related offences, not sedition or inciting a riot,” the judge pointed out. “It is highly unlikely that this 49-year-old accused, with no prior criminal record and questions regarding her direct participation in the overall protests…would face a potentially lengthy term of imprisonment.”

Even if she’s found guilty, Goodman concluded, she’ll probably be sentenced to no more than time already served. All told, that amounts to 49 nights in jail. Says Goldkind: “That’s 49 nights longer in jail than someone who is caught driving three-times over the legal [alcohol] limit would likely face.” Had Karimjee gotten his way, however, she’d still be in jail – a term of 28 months and counting.

In an effort to explain the Crown’s extreme hostility towards her, Lich reveals in her book that prosecutor Karimjee has donated over $17,000 to the federal Liberal Party since 2013 and that his generosity has merited an invitation to at least one “donor appreciation” event with Trudeau himself. Similarly, Bourgeois, the judge who initially denied Lich bail, was once a Liberal candidate in an Ottawa-area riding during the 2011 federal election. In her journey through the courts to that point – a case the Crown argues is not political in any way – it was Karimjee and Bourgeoise, both with longstanding and very public Liberal sympathies, who had been the gatekeepers of a legal system intent on holding her to account for leading a massive political protest against the Liberal government. As Lich writes, “I didn’t stand a chance.”

“I didn’t stand a chance”: According to Lich’s book Hold the Line, Crown prosecutor Moiz Karimjee (top right) made substantial donations to the Liberal Party of Canada beginning in 2013, while the judge in her initial bail hearing, Justice Julie Bourgeois (bottom right), ran as a Liberal candidate in the 2011 federal election. (Sources of photo: (top right) True North; (bottom right) juliebourgeoisgpr/YouTube)

Part II of “Mischief Trial of the Century: Inside the Crown’s Bogus, Punitive and Occasionally Hilarious Case Against the Freedom Convoy’s Tamara Lich and Chris Barber” will appear on November 5.

Lynne Cohen is a journalist and non-practicing lawyer in Ottawa. She has published four books, including the biography Let Right Be Done: The Life and Times of Bill Simpson.

Source of main image: The Canadian Press/Adrian Wyld.

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