Connect with us
[the_ad id="89560"]

COVID-19

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

Published

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.

Before Post

Todayville is a digital media and technology company. We profile unique stories and events in our community. Register and promote your community event for free.

Follow Author

COVID-19

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 II

Published on

By Lynne Cohen

“The most serious charges in Canada of a criminal nature often take less than 30 days [to resolve at trial]. That this has gone on for 45 days…must be considered one of the most shameful episodes in Canadian legal history.”

More people are becoming painfully familiar with the expression “the process is the punishment” – a legal or regulatory matter of such cost, complexity, length and personal stress that, regardless of its formal outcome, the targeted person emerges damaged, sometimes irreparably. It is all-but impossible not to attach this label to the nearly three-year-long prosecution of Tamara Lich and Chris Barber, which has included a marathon 13-month-long trial, now awaiting its verdict. In Part II of this series, Lynne Cohen takes readers inside the Ottawa Courthouse – talking to the defendants, their lawyers and other experts – illuminating the Crown’s relentless pursuit of the Freedom Convoy organizers. (Part I can be read here. )
The criminal trial of Tamara Lich and Chris Barber finally got underway on September 5, 2023, more than a year-and-a-half after they were arrested during the Freedom Convoy protest in February 2022. By the time their trial began, Crown prosecutor Moiz Karimjee had been replaced with Assistant Crown Attorneys Tim Radcliffe and Siohbain Wetscher. While the change in personnel might have seemed like welcome news to the defendants – given Karimjee’s heavy-handed pre-trial manoeuvres and his previous generous donations to the Liberal Party of Canada, as explained in the first of this two-part series – there was no appreciable alteration in the Crown’s tactics or overall strategy. It remained a no-holds-barred, drag-’em-out affair.

Initially scheduled for a tidy 10 days, it quickly became apparent the Crown’s new team had no intention of moving swiftly or efficiently. Three days in, Wetscher and Radcliffe were still introducing a vast array of evidence, mostly Facebook and TikTok posts plus thousands of text messages seized from the pair. The defence rightly argued all of this should have been revealed before the trial started. A week in, Ontario Court Justice Heather Perkins-McVey griped that her trial was already at risk of going “off the rails”. The Crown’s late disclosures left her feeling “very unhappy,” agreeing with the defence that “this should have been done well before the trial.”

“I want a not guilty. Period”: Despite the Crown’s plan to drag out their trial for as long as possible, Tamara Lich and Chris Barber were determined to see it through to the very end. Shown, Lich (at front left) and Barber (at front right) walk to court, November 1, 2022. (Source of photo: The Canadian Press/Adrian Wyld)

By the start of the second week, Lich’s defence lawyer Lawrence Greenspon tried to hurry things along by agreeing to accept some of the Crown’s arguments regarding the protest’s impact on residents in downtown Ottawa. “There were individuals who interfered with the enjoyment of property,” he admitted, suggesting the two sides put together an agreed statement of facts. Wetscher “respectfully declined” this offer. She instead promised to produce a lengthy parade of witnesses to complain about the garbage, noise, smells and congestion associated with the protest. Horn-honking by the truckers was to be a particular focus, given how much it irritated those living nearby.

Even Perkins-McVey thought this tactic was a waste of time. “I just don’t know if this evidence is going to have the weight that you hope,” she informed Wetscher, noting that Lich and Barber had no interactions with any of the prospective witnesses. Worried that her trial could “run on ad infinitum,” the judge allowed Wetscher to call just five local residents and imposed clear limits on what they could discuss.

As the proceedings dragged on over the ensuing months for reasons both mundane and mysterious – the strange disappearance of internal police emails supporting defence arguments that the truckers were initially welcomed by the Ottawa Police Service and shown where to park was one such example – the assembled court watchers and journalists in Courtroom 5 at 161 Elgin Street began to speculate that Lich and Barber’s constitutional right to a prompt trial might be in jeopardy. This offered a potential escape hatch for the accused.

One regular unconvinced by this prospect was Lich herself. As she explained to C2C during a courtroom break, the idea of getting off on a technicality was anathema to her. “I don’t want a ‘Jordon’ decision,” she said, referring to a 2016 Supreme Court ruling that sets time limits of 18 to 30 months for most criminal trials. “I want a not guilty. Period. And I am not afraid. What are they going do, put me in prison? Been there, done that. If they can’t frighten you, they have no power over you.” Prior to the trial, Lich had already spent 49 days in jail.

Lich’s determination to see her trial out to its conclusion regardless of delays or hurdles likely posed a significant obstacle to the Crown. Considering the fury with which Canada’s legal system has pursued her and Barber for the relatively minor crimes of mischief and obstructing police during the Freedom Convoy protest, it seems plausible the Crown’s goal from the start was to bully them into accepting a plea bargain simply to bring the interminable prosecution to a close. Given its benign reputation but steep potential consequences, criminal mischief seems the ideal charge for this sort of brinkmanship. Set against a possible 10-year prison term, the prospect of pleading guilty to a modest-sounding crime and accepting some modest punishment might appeal to many.

“Even a rich person would not do this kind of trial”: Rebel News’ Erza Levant argues that the length of the case mounted by the Crown would likely have exhausted even the resources of multi-millionaires. Only the broad-based fundraising efforts of groups such as Rebel News and The Democracy Fund allowed Lich and Barber to counter the Crown’s strategy and avoid a plea bargain. (Source of left screenshot: Rebel News)

But Lich and Barber have refused to play the Crown’s game. Not only have they signalled a steely determination to let the trial play out to its end, they also have the financial resources to back up their resolve. Besides their own substantial fundraising efforts, both have benefited from the support of organizations such as Rebel News and The Democracy Fund in raising money for their lawyers.

As Rebel News’ Ezra Levant explained in an interview with another publication at the Ottawa Courthouse, “A poor person could not afford the nearly half million dollars needed to run a year-long trial. Even a rich person would not do this kind of trial, would not spend half a million dollars for this. They’d all cut a deal.” The decidedly working-class Lich and Barber are neither rich nor poor. But neither are they interested in cutting a deal. Halfway through the trial, Barber told C2C that he’d spent $30,000 of his own money on legal fees, as well as having received more than that from donations and other sources.

Unable to intimidate the pair or run them out of money, the prosecution had to get creative.

Get Carter

In November 2023, with the trial now two months old, the Crown unveiled an additional tactic to ensnare Lich and Barber: what is known as a Carter application. Named for a 1982 Supreme Court case involving a marijuana smuggling ring in the Maritimes, a Carter application sets out a series of steps and evidentiary standards required to link individuals together in a broader criminal conspiracy. Significantly, the focus of the Carter application in this case appeared to be on the sole charge that Barber faces alone.

Lich and Barber together are charged with committing mischief, obstructing police, blocking a highway and counselling others to do all these things. Barber is additionally charged with one count of counselling others to ignore a court order. On February 7, in the midst of the protest, local residents received a court injunction prohibiting gratuitous horn-honking in downtown Ottawa. Two days later, Barber posted a TikTok video in which he said, “Grab that horn switch and don’t let go. Let that f—–’ horn go no matter what.” As Toronto criminal defence lawyer Ari Goldkind observes in an interview, this particular charge presents a “problem” for Barber: he is explicitly calling for protesters to violate the injunction. Of all the charges faced by the pair, this seems the most likely to stick. The issue for the Crown – given its palpable animosity towards Lich – is that it only sticks to Barber.

Amid the mountains of social media and other evidence collated and presented by the Crown, there is none that Lich ever encouraged anyone to break any court order or injunction. “There’s not one word emanating [from] Tamara Lich that she even said ‘honking’ or ‘horns’,” Greenspon pointed out during the trial. Quite the opposite. The evidence repeatedly shows Lich counselling others to remain lawful and respectful.

The Carter gambit: Midway through the trial, the Crown introduced a Carter application, a novel legal manoeuvre meant to ensnare Lich in a crime only Barber is alleged to have committed. Shown at top, the text of the TikTok video from Barber encouraging truckers to blow their horns following a court injunction against gratuitous horn-honking. (Source of bottom photo: JulieK2/Shutterstock)

The Carter argument, however, may provide the Crown with a sneaky way around this inconvenient lack of proof. According to Goldkind, Carter “basically uses the actions of one of the co-conspirators to obtain a conviction against the other.” If the Carter application succeeds in establishing a conspiracy scenario, a conviction for Barber on this single charge could then be applied to Lich as well. Even if she never did anything of the kind. Perkins-McVey has said she will rule on the Carter application when she renders her final judgement. And while such a legal manoeuvre appears to violate the principles of natural justice, it could be the Crown’s best and only shot at finding Lich guilty.

This is why it has been so important for the prosecution to show Lich and Barber together as co-leaders of the protest, as was the focus of the 106-slide PowerPoint presentation shown during the Crown’s closing arguments. “They’re not ordinary members of the occupation,” [emphasis added] Radcliffe explained in his final submission, using an inflammatory mischaracterization of the protest favoured by the government and other Freedom Convoy opponents. “They are leaders, publicly identified as such.”

This also explains the Crown’s odd fixation with pronouns. The prosecution submitted numerous examples of Barber and Lich using terms such as “we” and “us”, including when Lich said on February 3, “We plan to be here for the long haul.” According to Radcliffe, “that ‘we’ pronoun was endless,” and he claimed this proves their combined leadership role, as opposed to, say, their merely holding common views or expressing solidarity with other protesters.

Duelling definitions: Assistant Crown Attorney Tim Radcliffe (middle) claimed Lich’s catch-phrase “Hold the line” was a war-cry meant to incite open rebellion, while her defence lawyer Lawrence Greenspon (right) said it was simply an encouragement for protesters to carry on. (Sources of photos: (middle) IAP; (right) The Canadian Press/Patrick Doyle)

Radcliffe also engaged in a lengthy disquisition about the meaning of Lich’s catch-phrase “Hold the line.” According to the Crown, it was a war-cry meant to incite open rebellion; Radcliffe claimed the term actually “crossed the line” by encouraging illegal behaviour. According to Greenspon, however, “Saying ‘Hold the line’ was a way of encouraging demonstrators not to give up.” Perkins-McVey, for her part, observed that it could simply mean, “Stay true to your values.” The judge also noted that she’d heard police use the same phrase during crowd control efforts.

The frequency with which the judge engaged in often-pointed debate with the Crown attorneys seems noteworthy. Early in the trial, Radcliffe attempted to turn an obvious joke told on TikTok about how the protest was about to move to Toronto into further proof of nefarious purpose. Perkins-McVey quickly admonished him for his lack of imagination. “Reacting to a joke is not a crime,” she remarked offhandedly. She also went out of her way to scold him for imputing unproven radical or violent motives onto Lich and Barber. “They were moderate, that’s why [city] officials reached out to them,” Perkins-McVey explained. Another time, in response to Radcliffe’s assertion that the protest was “unlawful” based on statements made by the police, she wryly shot back, “Just because police say it was unlawful doesn’t make it so.”

Looking out for the accused: During the trial, Ontario Court Justice Heather Perkins-McVey frequently sparred with the Crown attorneys, admonishing them for imputing motives, missing jokes or wasting her time. As a defence lawyer in Ottawa prior to being called to the bench, Perkins-McVey was well-known for protecting the rights of her clients. (Source of photo: Bluewater Association for Lifelong Learning)

What appears to be the judge’s simmering frustration with the Crown’s interminable and often exaggerated arguments is fully in keeping with Perkins-McVey’s legal reputation. As a high-profile defence lawyer prior to being appointed to the bench, she was known throughout the Ottawa legal community for her determination on behalf of her clients’ rights. This story’s author, while an articling student, once crossed paths with Perkins-McVey in the Ottawa Courthouse lobby. “Someone has to stick up for them!” the future judge yelled from across the room, deep in a private argument. When your correspondent impishly asked “Who?” she responded to everyone within earshot, “The accused!”

The Defence Speaks at Last

Once the Crown rested its case, the defence – comprised of Diane Magas and Marwan Younes for Barber plus Greenspon and Eric Granger for Lich – introduced no further evidence and called no witnesses. Neither Lich nor Barber took the stand in their own defence, as is their right without prejudice. This move shortened the trial considerably and further emphasized that its excessive length to date was almost entirely the prosecution’s doing. It also required the Crown to go first during closing arguments, as is recounted in Part I of this series.

When the defence’s turn came, Barber’s lawyers spoke for the first two days, followed by another two days for Lich’s team. Granger spent his time explaining how his client never did anything illegal. “Leading a convoy of trucks to Ottawa is not unlawful,” he noted. “There is no evidence of Lich even being in a vehicle or parking in a vehicle. There is no evidence of her honking horns or emitting any exhaust. There is no evidence of any Ottawa residents having any interactions with Lich. No evidence of her personally obstructing a peace officer.”

Greenspon followed Granger and began with his reading of the dozens of previous mischief cases assembled by the Crown as legal precedent for the charges against Lich and Barber. None of them, he said, involved protesters “told where to park and where to stay, [and] then prosecuted for parking or staying” in those spots, he noted. The level of official direction provided to the protesters was unprecedented; Greenspon then displayed the maps given to the truckers by police showing “staging areas” around downtown Ottawa designated for their exclusive use. “Can it be said that in following the instructions of the OPS, that they weren’t in compliance with the very plan Ottawa police gave them?” he wondered. How could anyone be arrested for following police orders?

Is it against the law to obey the police? As Greenspon argued during his final summation, the Ottawa Police Service initially directed the truckers to park in designated staging areas, implying that the protest had official approval. At top, police-erected fencing demarcating the protest zone; at bottom, police mingle with protesters during the first days of the protest. (Sources of photos: (top) Gary A Corcoran Arts/Shutterstock; (bottom) Benoit Daoust/Shutterstock)

“What Tamara Lich encouraged was entirely lawful,” Greenspon continued. While she stands accused of counselling others to break the law, the evidence collected by the Crown itself points in the other direction. He noted her efforts to register the truckers and implement “a signed code of conduct.” Even more significant is the agreement she struck with Ottawa mayor Jim Watson to begin voluntarily removing trucks from Parliament Hill. The deal was signed before the imposition of the Emergencies Act. This is what Greenspon referred to as “moving day” in a telephone interview with C2C soon after the trial started. “The Emergencies Act was completely unnecessary,” he told C2C. “By February 12 there had been an agreement between Tamara Lich and the mayor of Ottawa to reduce the size of the footprint of the trucks…and it actually started to happen the same day as the invocation.”

Throughout the Freedom Convoy event, Greenspon told the court in his summation, Lich encouraged protesters to remain peaceful and “show respect for police officers.” All the Crown can prove, he asserted, is that “Tamara Lich knew there were lots of trucks that were impeding traffic, and as far as anyone could tell, the Ottawa police did nothing about it.” As for the Crown’s Carter gambit meant to ensnare Lich in Barber’s solitary transgression, Greenspon charged, “It is unprecedented for the Crown to take a democratic lawful purpose and try to juxtapose that with acts by other individuals.”

Early in the trial, Perkins-McVey had mused that the crux of the case before her rested on the issue of, “How do we balance the right to protest with the right to use and enjoy private property?” Greenspon returned to this central question in his summation, claiming it was an easy one to answer. Does a temporary interference into the daily lives of residents take precedence over the Charter-given rights of protesters to express themselves, he asked rhetorically. “We say not so!” he replied. “In a contest between constitutionally-protected rights and the interference in enjoyment of property, there is no contest.”

No limits: In a competition between the enjoyment of private property and the Charter-protected right to free expression, Greenspon declared “there is no contest” and that there should “never be a time limit” imposed on Canadians exercising their essential freedoms. (Source of photo: Valmedia/Shutterstock)

And when the judge provocatively asked him if the protestors should have policed themselves better by packing up and leaving prior to being forcibly evicted – Perkins-McVey didn’t spar only with the Crown’s attorneys – Greenspon shot back eagerly and with flourish. “Poppycock!” he declared. Any claim the truckers overstayed their welcome would amount to an “attempt to retroactively justify why the trucks were led into the downtown core without any time limit,” noting further that the February 7 horn-honking injunction explicitly preserved both the truckers’ right to remain in the Ottawa core and their liberty to engage in a peaceful, lawful and safe protest. “They never put a time limit on…freedom of expression,” Greenspon concluded. Nor should anyone.

“Biggest waste of time”

When the trial finally wrapped up on September 15, its 45 sitting days and 13-month duration likely set some sort of record for the Canadian legal system. In every aspect it had lasted far longer than expected, something that was almost entirely the result of Crown tactics and strategy. Even the closing arguments exceeded expectations as the prosecution demanded the right of reply to the defence’s summation, adding yet another day.

Veteran court reporter Aeden Helmer of the Ottawa Citizen, who covered every day of the trial, noted in his blog, “I have never encountered a trial that required 7 days just for closing arguments. I’ve covered murder trials that managed to get through closing arguments (in front of a jury) in a day or two.” According to The Democracy Fund, the prosecution of Lich and Barber constituted “the longest mischief trial in Canadian history”. Echoing Helmer, Greenspon noted that, “I’ve represented people charged with a lot more serious crimes than this, and the trials have not taken nearly as long.” During a courtroom break near the end of the case, Lich’s lead lawyer told a crowd of reporters, only half in jest, “We are going to apply to the Guinness Book of World Records.”

“This is the biggest waste-of-time prosecution in the history of waste-of-time prosecutions,” Toronto lawyer Goldkind exclaimed after the trial wrapped up. “The most serious charges in Canada of a criminal nature often take less than 30 days [to resolve at trial]. That this has gone on for 45 days…must be considered one of the most shameful episodes in Canadian legal history.” By way of comparison, the 1995 trial of Paul Bernardo, one of Canada’s most notorious murderers, was concluded in four months, although it sat for slightly more than 45 days.

“An obscene waste of taxpayers’ money”: High-profile Toronto defence lawyer Ari Goldkind (left) calls the 13-month-long trial of Lich and Barber “one of the most shameful episodes in Canadian legal history”. By comparison, the trial of Paul Bernardo (right), one of Canada’s most infamous murderers, lasted just four months. (Sources of photos: (left) CBC; (right) The Canadian Press/Frank Gunn)

For Goldkind, the political vendetta against Lich and Barber is not only vexatious and unfair but a grotesque squandering of public resources. “Every day the courtroom was filled with this stupid case meant there were other trials for rape, child abuse, sex assault, drinking and driving, drug trafficking that were being delayed,” he says, an assessment based on his own experiences as a criminal lawyer. “This was an obscene waste of taxpayer’s money on every level.” In this observation, Goldkind echoes the work of prominent Queen’s University law professor Bruce Pardy, who has written extensively on how Canada’s courts have become badly clogged and afflicted by delays for nearly all legal procedures.

Punished by Process

In his classic 1979 text The Process is the Punishment, American sociologist Malcolm M. Feeley observed a clear distinction in the form of punishment meted out by the upper and lower courts of New Haven, Connecticut. As the higher federal courts were concerned with serious crimes such as armed robbery, rape and murder, they thus dealt out significant penalties, including lengthy jail sentences and possibly even capital punishment.

The lower courts, however, were involved with relatively minor crimes that attracted suitably lighter sentences. Feeley’s insight was that the true nature of the punishment they delivered lay in the accumulation of pre-trial burdens placed on the accused, such as meeting bail requirements, getting time off work, attending court and so on. By the time a verdict was rendered – whether guilty or not guilty – the “sentence” was essentially over.

This phenomenon has only worsened throughout North America in the ensuing decades, as prominent commentators such as Mark Steyn have noted. Others, like Canadian media icon Conrad Black, use the term “prosecutocracy” to describe the vindictive and unjust manner in which the legal system can pursue a target out of all proportion to the matter at hand. The prosecution of Lich and Barber appears among the most egregious examples of such punishment-by-process yet to be found in a Canadian court.

Ground down by the system: Based on his observations at the County Courthouse in New Haven, Connecticut (top left), Malcolm M. Feeley’s 1979 book The Process is the Punishment argued that the true form of legal punishment often arises from the many pre-trial burdens and obligations placed on the accused – regardless of the ultimate verdict. More recently, conservative commentators Mark Steyn (bottom left) and Conrad Black (bottom right) have amplified this message. (Sources of photos: (top left) ajay_suresh – New Haven County Courthouse, licensed under CC BY 2.0; (bottom left) The Standard; (bottom right) ideacity/YouTube)

Having been identified by politicians in Ottawa as the leaders of a national protest-cum-uprising that allegedly required the invocation of the Emergencies Act, and hence the suspension of Canadians’ essential rights and freedoms, the pair must now fulfill their putative role as arch-villains. But instead of charging them with serious crimes such as sedition or rioting, the worst the police could come up with were mischief and obstructing police. Depressingly – for the powers-that-be – these crimes typically entail only modest sanctions. And based on the experience of other protesters arrested at the same time, Lich and Barber seem likely to be found not guilty as charged. Or, failing that, to receive a sentence no longer than time already served.

And so, in order to validate the (purely figurative) high treason of Lich and Barber, the Crown has had to think outside the box. This presumably explains the legal gymnastics of the Carter application – an attempt at finding Lich guilty of a crime only Barber is charged with committing. But even that seems like a long shot. Which in turn has necessitated the Crown’s ultimate tactic: to drag out the case such that the legal process itself – with all the costs, obstacles, uncertainty, wasted time and personal stress that entails – either spurs the defendants to plead guilty or, failing that, serves as the punishment itself. All before the formal verdict is rendered.

It may also be hoped in some quarters that this delay and obfuscation will lessen the political embarrassment should the entire matter fizzle out ignominiously. If the verdicts are not guilty, or guilty but with punishment as time served, most Canadians may hardly even notice, having grown bored with the whole topic and “moved on.” Indeed, it is possible that Justin Trudeau will no longer be prime minister by the time Lich and Barber learn their fate. And his successor will almost certainly claim that the whole mess wasn’t their doing and that they always had doubts about invoking the Emergencies Act.

Necessary victims: In order to validate the Liberal Cabinet’s decision to invoke the Emergencies Act, it became necessary to paint the Freedom Convoy as a full-scale threat to public order, and Lich and Barber as notorious insurrectionists. Shown, Barber (left) and Lich (right) are arrested in downtown Ottawa on February 17, 2022 on mischief charges.

It is for such self-serving and, some might say, deeply unjust motives that a petite, devout Métis grandmother has been presented to the world as a dangerous, violent rebel whose mere liberty would threaten the safety of all of downtown Ottawa, and whose subsequent communications on social media might destabilize Canada itself. And why she has already spent 49 days in jail for a crime than generally results in no jail time at all.

This is why Karimjee, the original Crown prosecutor, absurdly argued that the fact Lich had accepted a public honour was reason enough to lock her up for years. And why, when that same over-zealous, Liberal-donating prosecutor thought he had her trapped in another bail breach when she allowed her picture to be taken with lawyers just slightly off-stage, he issued a Canada-wide warrant for her arrest and sent homicide detectives to Medicine Hat to bring her back to Ottawa – who actually placed her in leg shackles. If any of these theatrics was justified, Lich would indeed be the greatest criminal threat this country has seen since the FLQ Crisis or the Riel Rebellion.

Only when the case finally made its way into a courtroom, however, was the true nature of the prosecution’s animus fully revealed. “This should not be the trial of the Freedom Convoy,” Greenspon declared at the outset. Yet that’s exactly what it became: a punitive effort to hold Lich and Barber accountable for the actions of others – most of whom were never charged with anything or who had their charges dropped. As the evidence shows, Lich worked tirelessly to make the Freedom Convoy a peaceful, law-abiding and community-minded event.

Canada’s greatest criminal mastermind? Lich, a peaceful and devout Métis grandmother, has been the subject of intense focus by the Canadian legal system. After her initial arrest, she was re-arrested at home in Medicine Hat and placed in leg shackles for part of her trip back to Ottawa. (Source of photo: Freedom Convoy 2022/Facebook)

And while she was not always successful, whatever failures occurred do not rest on her shoulders. They are the fault of the many other groups, institutions and individuals involved, including the Ottawa police. Throughout the three-week-long demonstration, Lich remained a voice of idealism, love and respect for the rights of all Canadians to participate in peaceful protest. And for this she has been treated with the utmost disrespect, the most obvious evidence being her 13-month, 45-day show trial alongside Barber for a crime of no consequence whatsoever.

Perkins-McVey has said that on November 26 she will provide an update regarding when she expects to reveal her final decision; the verdict itself could still be many months away. Until then, the punishment of Tamara Lich and Chris Barber continues.

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: JuliaDorian/Shutterstock.

Continue Reading

COVID-19

Emails Show Gates Foundation Introduced NIH Official to BioNTech CEO Before Pandemic Was Even Declared

Published on

News release from the Informed Consent Action Network

As ICAN supporters will recall, Dr. Barney Graham was formerly the Deputy Director of NIH’s Vaccine Research Center (VRC) and chief of the Viral Pathogenesis Laboratory. Back in 2020, ICAN sued NIH to get access to his emails during the pandemic and won. We’ve been reviewing the emails as batches come in and you can read previous reports herehere, and here.

Lead Counsel, Aaron Siri, Esq., lays out the details here:

The latest batch contains a very interesting email in which a Bill & Melinda Gates Foundation official introduces Graham at NIH to Ugur Sahin, CEO of BioNTech on February 2, 2020, stating, “I wanted to take a moment to introduce you to each other regarding 2019-nCoV.” In response, Graham says, “Thank you for your interest in our antigen design effort for CoV vaccines,” and the two immediately set up a phone call.

We know that the Gates Foundation bought shares in BioNTech back in September 2019 and so it is interesting to see it actively making connections for BioNTech so quickly. These emails occurred just 13 days after the first case of SARS-CoV-2 was found in the U.S. and over a month before the WHO declared a pandemic. In a follow-up email just three weeks later, BioNTech tells Graham that its “vaccine efforts are well under way” and that it is ready to discuss a “corresponding license agreement.”

In another email on March 13, 2020, a market research company reached out to Graham saying that stock markets were plunging and asking him to answer some questions to help them “understand the market sentiment of the vaccines industry towards COVID-19 vaccines.” Graham forwarded the email to the VRC Director and said, “FYI. I never answer inquiries like this, but do you think it might be appropriate for people like us to speak to the investor world and try to calm things down?

Both these incidences show how the NIH acts just like a for-profit corporation with a vested interest in forming partnerships and worrying about financial markets—perhaps because the agency and many of its employees stand to profit from the success of the vaccines they develop, just like Graham did from the Moderna vaccine.

ICAN will continue to report on the Graham emails as more batches come in.

To support future legal actions like this, click here to donate!

Continue Reading

Trending

X