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The Vials and the Damage Done: Canada’s National Microbiology Laboratory Scandal, Part II

Published

6 months ago

42 minute read

From the C2C Journal

By Peter Shawn Taylor

In China, minor security infractions are routinely punished with lengthy jail terms in dreadful conditions. In Canada, it’s just the opposite. Clear evidence of espionage is rewarded with a free pass back home after the mission is complete. Neglecting our national security in this way may suit the Justin Trudeau government, but it is doing great harm to Canada’s relationship with its most important allies. In the concluding instalment of his two-part series, Peter Shawn Taylor examines the many ways in which the spy scandal at the National Microbiology Laboratory in Winnipeg has damaged Canada’s international standing and contributed to the growing perception that Canada is a foreign agent’s happy place. (Part I is here.)

It is said there are two kinds of secrets in Ottawa: secrets of national importance and secrets of political importance. Some things can’t be publicly revealed because it might endanger Canada’s national security, imperil diplomatic negotiations or weaken our international competitive position. And some other things are kept away from the public eye simply because the information could prove damaging to the government of the day. One of the many questions arising from the recent release of a massive collection of declassified documents related to the spy scandal at Canada’s top-security National Microbiology Laboratory (NML) in Winnipeg is in which category this once-secret trove of information belongs.

As described in Part I of this series, the Justin Trudeau government fought ferociously to prevent the release of the files regarding married NML scientists Xiangguo Qiu and Keding Cheng and their connection to Chinese military interests. At one point, the government even threatened to sue the Speaker of the House of Commons to keep the material secret. Following the 2021 election, however, the weakened minority Liberal government relented and made the documents available to a special ad hoc committee of MPs and judges, who then decided it was in the public’s interest for most of the information to be declassified.

Prime Minister Justin Trudeau’s (top left) government fought hard to avoid disclosing classified documents concerning scientist couple Xiangguo Qiu and Keding Cheng (bottom left, left to right) – suspected of using their positions at Winnipeg’s top-security National Microbiology Laboratory (NML) (bottom right) to further the interests of Communist China. (Sources of photos: (top left) CBC; (bottom left) Governor General’s Innovation Awards; (bottom right) Winnipeg Architecture Foundation)

The 623-page document, released this past February, includes reports from the Canadian Security Intelligence Service (CSIS) and other internal briefings that reveal the many ways Qiu and Cheng acted against the interests of Canada. This includes clandestinely as well as openly transferring intellectual and physical property to Chinese institutions in addition to allowing access to their lab by Chinese researchers, many of whom had direct links to China’s People’s Liberation Army (PLA) and its bioweapons aspirations. Qiu and Cheng also appear to have been involved with numerous Chinese “talent” programs – thinly-veiled espionage schemes designed to steal know-how from other countries.

Qiu appears to have played a leading role in several significant research projects at the now-notorious Wuhan Institute of Virology (WIV) while also working for Canada’s federal government. Of note, she arranged to send 30 vials of deadly Ebola and Henipah virus samples from NML’s stockpile to the WIV for reasons that were deliberately kept hidden from her Canadian employers. After their deceptions were uncovered and they were fired from the NML, Qiu and Cheng quietly left the country without any legal consequences. They are currently living in China under new names, evidently working in their preferred occupations.

“Deeply embarrassing”: China expert and former diplomat Charles Burton says the long delay in releasing the declassified documents, along with a flurry of other China-related bills and hearings in Ottawa, speaks to the fact “the government has become very vulnerable on China.”

With all this finally in the public domain, it’s now possible to determine why the Liberals were so intent on keeping the files secret. Does this information harm Canada’s national interests, or merely the political interests of the Trudeau Liberals? In fact, it does great damage to both. And much more besides.

Red-faced on China

“This is deeply embarrassing for the government,” observes Charles Burton. The long battle over keeping the NML documents secret, he says in an interview, “was mostly about covering up poor decisions made by the people in charge of the lab while two scientists carried on this extraordinary relationship with China.” Burton is a senior fellow at Sinopsis, a China-focused think-tank based in Prague; he’s also a former diplomat at Canada’s embassy in Beijing and a recently retired professor of political science at Brock University in St. Catharines, Ontario. While Qiu and Cheng’s surreptitious connections to China were initially uncovered in 2018, Burton notes it wasn’t until 2021 that they were finally fired, and it took another three years before all the details were released. “That something so egregious was kept from the public for so long is really quite troubling,” he says.

The “troubling” NML scandal is just one of many China-related issues bedeviling the federal Liberals. The documents landed just ahead of the current Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions, which also coincides with new legislation on the registry of foreign agents. This recent flurry of activity “shows the government has become very vulnerable on China,” Burton observes.

‘The Liberal Party still doesn’t get the message that China is not a nation we can engage with, without significant cost to the integrity of Canadian values,’ Burton says.

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The foreign interference inquiry’s initial report, for example, establishes clear evidence of Chinese involvement in several electoral constituencies during the 2019 and 2021 federal elections. One particularly egregious example is Trudeau’s refusal to act on CSIS warnings about possible Chinese interference at a Liberal nomination meeting in the Toronto riding of Don Valley North (DVN) in 2019 because, as inquiry commissioner Marie-Josée Hogue wrote, doing so could “have direct electoral consequences as the [Liberal Party of Canada] is expected to win DVN.” In other words, Trudeau put his party’s election prospects – and his own desire to remain prime minister – ahead of concerns about China’s influence over Canada’s democratic processes.

That the Liberals are soft on China is hardly a revelation. As Burton notes, it dates back to Trudeau’s failed attempt to open free trade talks with China in 2017. Since then, his Liberal government has been reluctant to treat China as the threat to Canada it has repeatedly proved itself to be. Instead, Ottawa has gone to great lengths to avoid angering Beijing. Examples include the long delay in banning Huawei from Canada’s 5G networks, China’s years-long detention of the Two Michaels, the lingering presence of secret Chinese police stations in Canada, the David Johnson special rapporteur debacle, and on and on.

The Liberals’ soft spot: Following Trudeau’s failed attempt to obtain a free trade deal with China – shown here meeting Chinese President Xi Jinping in Beijing, December 2017 – his government has repeatedly avoided confronting China on many significant issues related to Canada’s national security. (Source of photo: The Canadian Press/Sean Kilpatrick)

Asked if the recent blitz of activity on the China file represents a sea change in the current government’s attitude towards China, Burton remains deeply skeptical. “I don’t think the Liberals are prepared to do anything that would ever permanently compromise their larger project of Canada gaining significant market share in China,” he says, adding, “the Liberal Party still doesn’t get the message that China is not a nation we can engage with, without significant cost to the integrity of Canadian values.”

The Weakest Link

While clearly damning, the incremental damage done by the NML files to the Liberals’ reputation on China is likely minimal. It’s hard to imagine it getting any worse. The more significant blow, says Christian Leuprecht, is to Canada’s international reputation as a vigilant and reliable ally. “For years the Liberals have been accused of not taking the China threat seriously,” says Leuprecht, a national security expert and professor of political science at Queen’s University and the Royal Military College of Canada, both located in Kingston, Ontario. “As a result, Canada is currently under significant international scrutiny, especially from our allies in NATO and the U.S., who are concerned about the extent of Chinese infiltration of Canadian political institutions.”

In friendly Western countries, Leuprecht observes in an interview, the Trudeau government’s passivity in the face of Chinese aggression has created the perception Canada does not take matters of national security or defence seriously. And this is weakening the country’s stature abroad. Perhaps the biggest consequence is that Canada is no longer treated as a top-tier member of NATO, the premier Western military alliance. “We are increasingly being left out of meetings, our speaking time is vastly reduced and information is not being shared,” Leuprecht observes.

“Our worst fears”: According to national security expert Christian Leuprecht, the NML spy scandal is a significant blow to Canada’s international reputation; the revelation that Chinese agents penetrated Canada’s highest-security biohazard lab reinforces the belief that Canada is “the weak link” among Western allies.

This contention is backed by Kerry Buck, Canada’s former ambassador to NATO. In a recent interview with the CBC Buck explained that Canada currently occupies NATO’s so-called “quadrant of shame” due to its poor track record on both defence spending and military research. Other evidence of Canada’s waning relevance among its allies includes its exclusion from the expanding Australia/UK/U.S. (AUKUS) defence relationshipand from the Quadrilateral Security Dialogue, an informal pact among the U.S., Australia, Japan and India meant to contain Chinese expansion in the Pacific and Indian oceans.

At a time when our allies seem less willing to engage with Canada on defence matters, evidence that our highest-security biohazard lab was exploited by federally-employed Chinese agents strikes to the very core of our reliability. “This is confirmation of our worst fears,” says Leuprecht. “No other country, at least from what we know, has experienced the same degree of infiltration. Everything in these documents reinforces the perception that Canada is the weak link.”

Leuprecht emphasizes that Canada is a small player in the intelligence world, and the worsening perception that the country can’t be trusted to keep its own secrets safe will give allied countries further pause when considering whether to share intelligence with Canada or to include it in operational plans. “None of our allies really needs Canada [in order] to do the things they want to do,” Leuprecht says. “So this significantly reduces our leverage and influence to do the things we want to do internationally. That’s what’s really at stake here.”

“Quadrant of shame”: Kerry Buck (left), Canada’s former ambassador to NATO, notes that her country belongs to a special category of underperforming NATO members due to its lack of commitment on defence spending and military research; this perception has also seen Canada excluded from newly-established security partnerships such as the Australia/UK/U.S. (AUKUS) defence relationship. Shown at right, an AUKUS meeting in March 2023. (Sources of photos: (left) The Foreign Policy Project; (right) Chad J. McNeeley, DOD)

Who Dropped the Ball?

Beyond the harm done to Canada’s political and international reputations, the release of the Qiu-Cheng files puts the performance of domestic agencies involved in the affair, including CSIS, the RCMP and Canada’s federal bureaucracy, under the microscope as well.

Alongside the many Canadian journalists and politicians who have been pouring through the documents, Leuprecht notes that foreign intelligence services will also be studying them carefully and making their own judgements. “What will German intelligence or MI6 or the CIA think about collaborating with Canada in the future when they read these files?” asks Leuprecht. “The first thing they will see is a bunch of rookie mistakes.”

PHAC’s handling of the two scientists was a tedious and unhurried affair, frequently bogged down by human resources requirements and union grievances, including allegations the original CSIS investigation was racist.

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As described in Part I, Qiu and Cheng first came to the attention of CSIS following a routine “insider threat briefing” at the NML in August 2018. An initial investigation into their activities turned up plenty of worrisome evidence, including a Chinese-registered patent filed in Qiu’s name and numerous violations of NML security protocols by Cheng regarding data storage, email security and access to the lab by his foreign research students. All of this could have been sufficient to immediately remove the pair from Canada’s only Level 4 Biosafety Laboratory (BSL4). Yet they didn’t lose their security clearances until July 2019, and weren’t fired until January 2021. Should CSIS bear any responsibility for this lengthy delay?

Phil Gurski is a former strategic analyst at CSIS and principal of Borealis Threat and Risk Consulting. He’s also the author of several books on terrorism. While readily admitting a bias in favour of his former colleagues, Gurski says his reading of the documents is that CSIS acquitted itself ably throughout the affair. In quickly identifying Qiu and Cheng as possible threats, he says in an interview, “CSIS did its job properly. It found things that were inconsistent and worrisome. If someone else dropped the ball, that’s on them.”

Someone else dropped the ball: Phil Gurski, a former strategic analyst at the Canadian Security Intelligence Service (CSIS), says the agency did its job by quickly identifying Qiu and Cheng as possible security threats and informing its federal clients of this fact. Shown at left, CSIS national headquarters building in Ottawa. (Source of left photo: CSIS Canada/Facebook)

Gurski points out that CSIS is merely an intelligence-gathering agency and is not allowed to arrest anyone or carry out any other law enforcement activities. It can only make recommendations to the federal institutions it serves. When it came to dealing with Qiu and Cheng, that decision rested with the Public Health Agency of Canada (PHAC), which oversees the NML. As explained in Part I, PHAC’s handling of the two scientists was a tedious and unhurried affair, frequently bogged down by human resources requirements and union grievances, including allegations the original CSIS investigation was racist.

Leuprecht further suggests the NML was slow to react because senior administrators were blinded by the celebrity of Qiu, who won a Canadian Governor General’s Innovation Award in 2018 and was internationally recognized for her work on Ebola. “The lab had this superstar scientist and it prioritized a research culture and international collaboration over national security procedures,” he asserts.

“Superstar scientist”: According to Leuprecht, Qiu’s international reputation could have blinded the NML to the concerns that she and her husband were secretly working on behalf of China. Shown, Qiu (at right) accepts a Governor General’s Innovation Award at Rideau Hall from Governor General Julie Payette in 2018. (Source of photo: CBC)

As for CSIS’s conduct, Leuprecht agrees with Gurski’s positive assessment. “My sense is that CSIS did what it was supposed to do,” he says. “There is no suggestion they didn’t take the threat seriously.” Canada’s rookie mistakes, he explains, lie with the bureaucrats and politicians who should have acted with greater alacrity on the information they were given.

Picking Flowers, Making Honey

When he released the once-secret documents in February, federal Health Minister Mark Holland, who is responsible for PHAC, tried to explain away the massive security breach by arguing that such a thing had been impossible to predict at the time. “The extent to which China was attempting to influence the scientific community or to interfere in Canada’s domestic affairs was not known to the extent it is today,” he declared at a press conference the day the files were released. “The threat environment was in a very different place.”

Such claims of innocence are absurd, snaps Leuprecht. Chinese intentions regarding the theft of Western knowledge were obvious prior to the investigation into Qiu and Cheng. He points to a 2018 report by the Australian Strategic Policy Institute (ASPI), entitled Picking Flowers, Making Honey, that detailed many years of rampant Chinese infiltration of Western universities at the behest of PLA interests.

ASPI data showed Canada ranked third, behind the U.S. and UK, in terms of problematic collaboration between PLA scientists and institutions of higher learning. If that reference is too obscure, Leuprecht offers up his own Toronto Star commentary from the same year headlined “China’s silent invasion of Western universities” that provided a similar warning. “To claim no one knew what China was up to by 2019 is nonsense, complete nonsense,” he fumes. Besides, given the NML’s status as Canada’s highest-security biohazard lab, those in charge should have been alert for all possible risks and incursions, not just those from familiar enemies.  

Flowers picked, honey made: According to the Australian Strategic Policy Institute (ASPI), Canadian universities rank third, after the U.S. and UK, in the prevalence of academic collaboration with researchers connected to the Communist regime’s People’s Liberation Army (PLA). (*As measured by peer-reviewed literature co-authored by PLA scientists, 2006-2017) (Source of graph: ASPI)

Today, even the Trudeau government seems to grudgingly acknowledge it took far too long to recognize the threat Qiu and Cheng posed to Canada’s national security. During a grilling by Conservative MP Michael Chong at the House of Common’s Canada-China Committee last month, Nathalie Drouin, national security intelligence advisor to the prime minister and Deputy Clerk of the Privy Council, admitted that, “From the first signal to the moment the two scientists were put on leave, yes there is a timeline that needs to be looked at.” In response Chong pointed out that the Royal Bank of Canada recently fired its Chief Financial Officer for breaching its code of conduct after an investigation that lasted less than a month. “Two and-a-half years to terminate someone for cause seems like an awfully long time,” he remarked drily.

In 2020 U.S. President Donald Trump cancelled the visas of more than 1,000 Chinese students and researchers in the U.S. because of their links to universities with ties to the Chinese military.

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Despite the many obvious failures in monitoring access to and activities within Canada’s only BSL4 lab, it seems remarkable that no one other than Qiu and Cheng has ever been held to account for the many security oversights and errors in judgement. During his appearance before the Canada-China Committee on April 8, Holland maintained that “the Public Health Agency acted appropriately throughout the process” and said he did not expect anyone else to be fired as a result. He further claimed Ottawa has fixed all the holes in its security procedures revealed by the NML scandal. Then again, Holland previously asserted that “at no time did sensitive information leave the country,” a patently false statement given the wealth of know-how Qiu clandestinely shared with the WIV, not to mention the 30 vials of deadly virus samples she delivered to Wuhan.

“An awfully long time”: Under questioning from Conservative MP Michael Chong (left) at an April meeting of the House of Common’s Canada-China Committee, Nathalie Drouin (right), national security intelligence advisor to the prime minister, reluctantly agreed it took far too long to fire Qiu and Cheng. (Source of screenshots: House of Commons)

As for the RCMP, it claims – with an apparently straight face – to be still investigating Qiu and Cheng. This despite the fact they are now living and working in China, far from the Mounties’ reach. While they may have escaped Canadian justice, Gurski says it’s obvious to him that Qiu and Cheng broke Canadian laws. “You had two people who weren’t who they said they were and who had access to very sensitive technology and information working for a country that is not an ally of Canada,” Gurski explains. “At a minimum, I’d say that’s espionage.”

Leuprecht agrees. “That they were allowed to walk out of the country seems quite stunning,” he notes. “If you want to keep someone in the country, there are lots of ways to go about it.” As it was, they apparently left during the Covid-19 pandemic at a time when China had closed its borders to international air travel. This suggests a deliberate arrangement between Canada and China to keep the whole matter quiet. That’s not how our neighbours do it.

Tougher Action South of the Border

In 2020 U.S. President Donald Trump cancelled the visas of more than 1,000 Chinese students and researchers in the U.S. because of their links to universities with ties to the Chinese military. At the time, this presidential proclamation was widely decried as a “costly policy” motivated by “anti-Asian racism”. Today, it seems like common sense, particularly since the Biden Administration has kept it in place.

No pussy-footing around: The U.S. takes a firm approach towards potential Chinese espionage and frequently announces the prosecution of researchers and academics who have hidden their participation in China’s notorious Thousand Talents Program.

Regardless of who is in the White House, the U.S. takes a far stricter view of Chinese interference than does Canada. The FBI maintains a website solely designed to warn American employers about the threat posed by China’s numerous “talent” programs. And the U.S. Department of Justice regularly prosecutes American residents who hide their involvement in such schemes. In 2021, NASA scientist Mayya Mayyappan was fined and sentenced to a month in jail for lying about his participation in China’s national Thousand Talents Program (TTP), as well as hiding evidence of his association with a Chinese university. Last year Charles Lieber, former chair of Harvard University’s Chemistry and Chemical Biology Department, was similarly punished for his long-time secret affiliation with the TTP and for failing to pay taxes on the US$50,000 per month it was paying him.

In addition to cracking down on talent program participants, the U.S. takes a tougher stance on all forms of espionage and intellectual theft. Two months ago, for example, the FBI announced the arrest of Canadian Klaus Pflugbeil and Chinese national Yilong Shao for allegedly conspiring to steal information from a Tesla-owned battery plant in Canada on behalf of Chinese interests. “Today’s arrest demonstrates that this Office will prosecute those who engage in theft of trade secrets and places U.S. companies at a competitive disadvantage, undermines innovation and creates a potential national security risk,” reads the U.S. Department of Justice press release. You won’t find such sternly-worded press releases – or the actions to back them up – in Canada.

First try: Electric-car battery expert Yuesheng Wang, a former Hydro-Québec employee, is the only person ever charged in Canada with economic espionage under the 2001 Security of Information Act. He is still awaiting trial. (Sources of photos: (left) Yuesheng Wang/LinkedIn; (right) Gene.arboit, licensed under CC BY-SA 3.0)

In fact, only one person has ever been charged in Canada with economic espionage under the federal Security of Information Act of 2001. Yuesheng Wang was an electric car battery expert at Hydro-Québec when he was arrested in 2022 for allegedly participating in a Chinese talents program and illegally transferring corporate knowledge to China. He is still awaiting trial.

The enormous discrepancy in how Canada and the U.S. deal with such matters is partly explained by flaws in Canada’s legal system regarding the investigation and prosecution of espionage. As an intelligence-gathering service, CSIS is best placed to identify such crimes. And while it can’t enforce any laws on its own, it can share its findings with the RCMP, Canada’s national police force. Unfortunately, this relationship is often awkward and complicated by the fact CSIS intel is not admissible in court because the agency refuses to disclose its sources and methods. “If defence lawyers ever get a whiff of the fact the RCMP has relied on CSIS information,” warns Gurski, “they will demand to test that information in court.” As a result, cases built on CSIS evidence can collapse during trial or are never prosecuted in the first place. It is therefore possible that Qiu and Cheng were allowed to leave the country because Crown prosecutors knew the mountain of evidence against them was inadmissible. The FBI, on the other hand, is both an intelligence gathering and law enforcement agency, and accordingly faces none of these structural problems.

In addition to a serious gap in Canadian law enforcement capabilities, Gurski points out Canada also lacks a “culture of national security”. The politicians and bureaucrats on the receiving end of CSIS reports habitually discount or ignore the evidence they contain because they put a low priority on issues of national security. This is one of the main takeaways from the current foreign interference inquiry: repeated CSIS warnings about Chinese sabotage of Liberal Party nomination meetings or intimidation directed at Conservative MPs (including Chong) were simply not acted upon because no one thought it was very important.

An awkward relationship: Prosecuting spies in Canada is complicated by the fact CSIS refuses to disclose its sources and methods in court, while the RCMP, Canada’s national police service, lacks CSIS’s expertise in intelligence gathering. Shown, CSIS Director David Vigneault (left) and RCMP Commissioner Michael Duheme (right) at a parliamentary hearing in February 2024. (Source of photo: The Canadian Press/Justin Tang)

The long delay in confronting the threat posed by Qiu and Cheng might also be ascribed to what Gurski calls “inconvenient intelligence”. That is, CSIS warnings may have conflicted with the Liberal government’s pre-existing attitude towards China. Dealing head-on with Chinese espionage at the NML would likely have angered China, and caused it to retaliate, as it did in the Two Michaels affair. Australia similarly faced a devastating ban on coal exports to China after it raised concerns about Chinese spying. And the Liberals would have been very keen to avoid such unpleasantness.

By comparison, says Gurski, the U.S. and UK governments place a high value on their own counterintelligence programs and frequently take immediate and forceful action based on what their spy agencies tell them. This is not to say other countries haven’t also suffered from Chinese espionage efforts, or made mistakes in how they deal with such threats. But at least they are actively trying to defend themselves.

Spies Welcome

Despite the wealth of information included in the NML document dump, Leuprecht admits it is impossible to determine the true nature of Qiu and Cheng’s deception. They could have been sleeper agents of the sort featured in the TV series The Americans, inserted into Canadian society decades ahead of their mission. Or they might have been recruited only after gaining access to the highest levels of the NML. It is even possible they were simply naïve dupes manipulated by clever Chinese operatives into doing the bidding of the PLA under the guise of improving international scientific collaboration. Regardless, what stands out for Leuprecht is “the boldness with which they continued operating even after they’d been tipped off.”

One final mission: According to the declassified documents, Qiu (shown at top working at the NML) was aware she was being watched by her employer when she sent 30 vials of Ebola and Henipah virus samples to China’s Wuhan Institute of Virology in March 2019 prior to having her security clearance revoked. Shown, the devastating effects of Ebola in Guinea (bottom left) and Henipah in India (bottom right). (Sources of photos: (top) CBC; (bottom left) EU Civil Protection and Humanitarian Aid, licensed under CC BY-NC-ND 2.0; (bottom right) Sky News)

Of particular interest is that shipment of 30 vials of deadly Ebola and Henipah virus samples from the NML to the WIV on March 29, 2019. As the declassified CSIS files show, these materials were considered crucial to a research project at the WIV headed by Qiu. Yet at the time of the shipment, Qiu and Cheng already knew they were being watched; both had been interviewed about their security protocol habits by an independent investigator hired by the PHAC on February 15, 2019.

‘The message we are sending is that if you want to infiltrate a country, Canada is a great place to go,’ declares Leuprecht. ‘We are not particularly vigilant, and if we do catch you, we will let you leave the country so you can have a great career in China afterwards.’

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“My guess,” says Leuprecht, “is that they got direction from Beijing to get whatever they could out of the lab and that they would be taken care of and rewarded.” Given how things turned out – with both Qiu and Cheng now living comfortably in China in high-profile academic positions under new names – it seems an entirely reasonable bit of speculation.

And it is this final twist that represents the most serious and longest-lasting blow delivered by the entire Qiu-Cheng affair: the signal to the world that Canada is a spy’s happy hunting grounds. Not only were Qiu and Cheng allowed to keep their security clearances for 10 months after being identified as possible threats, but they were also able to successfully complete their final task. And afterwards they left Canada for China – perhaps extracted is a better term – without any legal repercussions or sanctions. It is a tale that will resonate not just with agents on the hunt for sensitive information about viruses useful to China’s bioweapons plans, but anyone seeking to penetrate numerous other Canadian research facilities in the government, university and private sectors across a multitude of other key scientific and technological areas.

“The message we are sending is that if you want to infiltrate a country, Canada is a great place to go,” declares Leuprecht. “We are not particularly vigilant, and if we do catch you, we will let you leave the country so you can have a great career in China afterwards. If you were sitting in China reading through these 623 pages, you’d say to yourself, ‘Canada, that’s the country we’re going after.’”

“Canada is a great place to go”: The fact Qiu and Cheng returned to China without any legal repercussions sends a clear message to other foreign agents, says Leuprecht. “We are not particularly vigilant, and if we do catch you, we will let you leave the country.” Shown, a still from the 1963 movie The Great Escape starring Steve McQueen; unlike Qiu and Cheng, McQueen’s character failed in his escape attempt.

Peter Shawn Taylor is senior features editor at C2C Journal. He lives in Waterloo, Ontario.

The Scientists Who Came in From the Cold: Canada’s National Microbiology Laboratory Scandal, Part I

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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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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.

‘What kind of country had Canada become?’ Lich would later write about the impact of mandatory vaccine requirements. ‘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.’

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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.”

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.

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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 photo: The 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.

‘There is no question whatsoever that this is a political trial,’ Goldkind states emphatically in an interview.

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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 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.

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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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